A power of appointment can be created only by a donor having the capacity to transfer the interest in property to which the power relates.
Powers of AppointmentCreation of Powers of Appointment
Section § 620
This law section states that only a person who has the legal ability to transfer property can create a power of appointment over that property.
power of appointment donor capacity property transfer
Section § 621
This section explains how a power of appointment is created. First, there needs to be a written document, known as a creating instrument, that is legally valid. This document should transfer the property that is being appointed, unless an exception is made for certain situations where a power of appointment itself is used to create another power of appointment. Lastly, the document must clearly show the person's intention to give someone else the authority to appoint the property to someone allowed to receive it.
(a)CA Probate Code § 621(a) A power of appointment is created only if all of the following are satisfied:
(1)CA Probate Code § 621(a)(1) There is a creating instrument.
(2)CA Probate Code § 621(a)(2) The creating instrument is valid under applicable law.
(3)CA Probate Code § 621(a)(3) Except as provided in subdivision (b), the creating instrument transfers the appointive property.
(4)CA Probate Code § 621(a)(4) The terms of the creating instrument manifest the donor’s intent to create in a powerholder a power of appointment over the appointive property exercisable in favor of a permissible appointee.
(b)CA Probate Code § 621(b) Paragraph (3)
of subdivision (a) does not apply to the creation of a power of appointment by the exercise of a power of appointment.
power of appointment creating instrument appointive property
