Q: California will states "I give all my probate estate, excluding any property over which I have a power of appointment,"
California will states "I give all my probate estate, excluding any property over which I have a power of appointment, after expenses and taxes are paid under this Will, to the then-acting trustee of the John Doe Living Trust and executed before this Will, to be added to the property of that trust."
The descendent was not married had one adult child named as co-trustee. What property does "power of appointment" refer to? Can power of appointment refer to household items, and personal property like jewelry, coin collection, automobiles that are paid off, real estate that is paid off or would these items be listed in a separate document? How do titles and deed transfer to the co-trustee child (beneficiary)? Thank you.
A:
A power of appointment is a power to designate beneficiaries for assets owned by someone else. Often it must be exercised within the power holder's own will, but not always. If the will does not mention the exercise of a power of appointment, then chances are it does not exist or if it did exist, the decedent did not exercise it.
If there are multiple co-Trustees they most likely must act together to sign deeds and assignments to transfer the trust assets to the correct beneficiaries, BUT FIRST there is a process of trust administration that must take place. The Co-Trustees will need a trust administration attorney and possibly a CPA to help them do this correctly.
Gerald Barry Dorfman agrees with this answer
A:
In the context of the California will provision you mentioned, "power of appointment" refers to the authority to designate beneficiaries or distribute certain assets or property among individuals or entities. Typically, power of appointment applies to specific assets or funds held in a trust or other estate planning instruments. Household items, personal property like jewelry, coin collections, automobiles, and real estate that are not specifically mentioned in the will may not be subject to the power of appointment clause and may pass directly to the co-trustee child beneficiary outside of the probate process. To determine the precise transfer of titles and deeds to the co-trustee child, it is crucial to review the full estate planning documents, including the trust, and consider consulting with an attorney experienced in estate and trust law to ensure a proper transfer of assets and a smooth distribution of the estate.
James L. Arrasmith
Founder and Chief Legal Counsel of The Law Offices of James L. Arrasmith
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