California Probate Code 661 – (a) Unless the creating instrument otherwise provides, a general …
(a) Unless the creating instrument otherwise provides, a general or special power of appointment that is a discretionary power, whether testamentary or otherwise, may be released, either with or without consideration, by a written instrument signed by the powerholder and delivered as provided in subdivision (c).
(b) A releasable power may be released with respect to the whole or any part of the appointive property and may also be released in such manner as to reduce or limit the permissible appointees. No partial release of a power shall be deemed to make imperative the remaining power that was not imperative before the release unless the instrument of release expressly so provides. No release of a power that is not presently exercisable is permissible where the donor designated persons or a class to take in default of the powerholder’s exercise of the power unless the release serves to benefit all persons designated as provided by the donor.
Terms Used In California Probate Code 661
- Appointive property: means the property or interest in property that is the subject of the power of appointment. See California Probate Code 610
- Creating instrument: means the deed, will, trust, or other writing or document that creates or reserves the power of appointment. See California Probate Code 610
- Deed: The legal instrument used to transfer title in real property from one person to another.
- Donor: means the person who creates or reserves a power of appointment. See California Probate Code 610
- Donor: The person who makes a gift.
- Instrument: means a will, a document establishing or modifying a trust, a deed, or any other writing that designates a beneficiary or makes a donative transfer of property. See California Probate Code 45
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Person: means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, limited liability company, association, or other entity. See California Probate Code 56
- Power of appointment: means a power that enables a powerholder acting in a nonfiduciary capacity to designate a recipient of an ownership interest in or another power of appointment over the appointive property. See California Probate Code 610
- Powerholder: means the person to whom a power of appointment is given or in whose favor a power of appointment is reserved. See California Probate Code 610
- Property: means anything that may be the subject of ownership and includes both real and personal property and any interest therein. See California Probate Code 62
- Real property: includes a leasehold interest in real property. See California Probate Code 68
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- State: includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States. See California Probate Code 74
- Trustee: includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court. See California Probate Code 84
- Trustee: A person or institution holding and administering property in trust.
- Will: includes codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will. See California Probate Code 88
(c) A release shall be delivered as follows:
(1) If the creating instrument specifies a person to whom a release is to be delivered, the release shall be delivered to that person, but delivery need not be made as provided in this paragraph if the person cannot with due diligence be found.
(2) In a case where the property to which the power relates is held by a trustee, the release shall be delivered to the trustee.
(3) In a case not covered by paragraph (1) or (2), the release may be delivered to any of the following:
(A) A person, other than the powerholder, who could be adversely affected by the exercise of the power.
(B) The county recorder of the county in which the powerholder resides or in which the deed, will, or other instrument creating the power is filed.
(d) A release of a power of appointment that affects real property or obligations secured by real property shall be acknowledged and proved, and may be certified and recorded, in like manner and with like effect as grants of real property, and all statutory provisions relating to the recordation or nonrecordation of conveyances of real property and to the effect thereof apply to a release with like effect, without regard to the date when the release was delivered, if at all, pursuant to subdivision (c). Failure to deliver, pursuant to subdivision (c), a release that is recorded pursuant to this subdivision does not affect the validity of any transaction with respect to the real property or obligation secured thereby, and the general laws of this state on recording and its effect govern the transaction.
(e) This section does not impair the validity of a release made before July 1, 1970.
(Amended by Stats. 2016, Ch. 81, Sec. 15. (AB 2846) Effective January 1, 2017.)