SENATE BILL REPORT

HB 1170

BYRepresentatives Padden, Crane, Tate and P. King 

Changing provisions relating to the exercise of the power of appointment.

House Committe on Judiciary

Senate Committee on Law & Justice

Senate Hearing Date(s):March 16, 1989

Majority Report:  Do pass.

      Signed by Senators Pullen, Chairman; McCaslin, Vice Chairman; Hayner, Madsen, Nelson, Newhouse, Niemi, Rasmussen, Talmadge, Thorsness.

Senate Staff:Joyce Ansley (786-7418)

                  March 16, 1989

AS REPORTED BY COMMITTEE ON LAW & JUSTICE, MARCH 16, 1989

BACKGROUND:

A "power of appointment" is authority given to one person to dispose of property held by another person.  For example, a parent may in his or her will leave property to a child (the property holder), but give another person the authority to dispose of the property (the power holder).  A power may be created by inter vivos (during a person's lifetime) deed as well.  Various restrictions may be placed on the exercise of a power of appointment.  The power is said to be "general" if it contains no restrictions and includes authority for the power holder to dispose of the property by transferring it to himself or herself.

The current statute allows a power holder to exercise the power of appointment through his or her own will.  However, a will that purports to exercise a power of appointment must identify the instrument that created the power and must indicate the date of the power's creation.  If the instrument that creates the power originally is itself a will, for instance, the power holder may not know of the existence of the power, or of the nature or timing of any changes made in the power by amendments to the will.  In such a circumstance, it may be impossible for the potential power holder to make the necessary identifications in his or her own will.

The holder of property subject to a power of appointment in a will may dispose of the property without fear of liability if six months have passed since the death of the power holder and the property holder has not been notified in writing that the will has gone to probate.

SUMMARY:

The power of appointment statute is amended to remove the requirement that the exercise of a power through a will must identify the creating instrument and date of creation of the power.

The provision regarding property holder liability is amended.  The law is made explicit that a property holder with actual knowledge of the exercise of power cannot avoid liability for disposing of the property just because he or she has not received written notice of the exercise within six months of the death of the power holder.  A holder of property subject to a power of appointment may not avoid liability for disposing of the property unless the property holder had no actual knowledge that the power had been exercised through a will and had made a reasonable effort to find out if the power had been exercised.

Appropriation:    none

Revenue:    none

Fiscal Note:      none requested

Senate Committee - Testified: Mike Carrico, WSBA Tax Section, Estate and Gift Tax Committee (pro); D. L. Cooper, Department of Revenue