Power of Appointment: Allows the Executor of the Will to Decide Who Gets How Much

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.

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.