Power of Appointment: Allows the Executor of the Will to Decide Who Gets How Much
Power of appointment is an additional job given to the executor of the will that gives them the power to decide who gets what. There are two types of power of appointment: Limited and General, but with either the executor has full discretion to distribute property with the power of appointment. Learn more in our free legal guide below.
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Insurance Lawyer
Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...
Jeffrey Johnson
Insurance Lawyer
Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...
Jeffrey Johnson
Updated July 2023
A power of appointment gives the executor of the will or another designated party the power to distribute property according to the executor’s discretion, either among named beneficiaries or some class or simply according to the executor’s wishes rather than according to any predetermined plan.
This allows extra flexibility so that the executor of the will can make distributions based on the need of each individual recipient under the will or other factors.
What is an executor of the will?
The executor of the will is a designated person chosen by the testator, who makes the will, to distribute the property of the testator at death. The job of the executor of the will includes everything from gathering the testator’s property to paying taxes and debt.
They will have the authority to sell property as needed. Once all court costs, taxes and debt are paid, the executor of the will distributes the rest to the designated beneficiaries.
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What is power of appointment?
Power of appointment is an additional job given to the executor of the will. Instead of listing specific property items that go to specific people, the testator leaves more discretion to the executor.
For example, the executor may receive a list of people and directions to give them each whatever the executor decides according to relative financial need at the time of the disbursement. This type of power of appointment is called a limited power of appointment because it limits the distribution of the estate to certain people.
Any time there is some limit to what the executor of the will may do with the contents of the estate, the executor has been granted a limited power of appointment.
The executor of the may also get a general power of appointment, which allows the executor much more freedom to distribute gifts to whomever they choose or perhaps even to keep the contents of the estate. A power of appointment may have peculiar tax consequences, which should be examined with the help of an attorney.
How do I make a power of appointment?
A power of appointment is made by writing a specific clause into your will. If you would like to give your executor power of appointment, the following phrasing must be included:
“I appoint __________________, to act as the executor of this will, to serve without bond. ____________ is given full power of appointment over my estate with the residue being distributed evenly between _________, __________, and ___________.”
Tips: If your estate will have more than $100,000 worth of assets, consult with an attorney about better drafting options such as trusts and gifts.
Case Studies: Power of Appointment in Estate Planning
Case Study 1: Limited Power of Appointment
John’s will grants his executor, Sarah, a limited power of appointment. Sarah has the authority to distribute the estate among named beneficiaries based on their relative financial needs. She carefully assesses each recipient’s situation and makes informed decisions regarding the disbursement of assets.
Case Study 2: General Power of Appointment
Elizabeth’s will bestows a general power of appointment upon her executor, David. With this power, David has significant freedom in distributing gifts from the estate. He can choose to allocate assets according to his own discretion or even retain them. The tax consequences associated with this power are thoroughly examined with the assistance of an attorney.
Case Study 3: Crafting a Power of Appointment Clause
Mary’s estate planning process. With an estate worth over $100,000, she seeks the guidance of an attorney to draft a power of appointment clause that ensures efficient distribution of her assets. The attorney helps Mary include the necessary phrasing in her will to grant her chosen executor the power of appointment.
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