SECTIONS 660-662 - California Statutes

PROBATE CODE

SECTION 660-662

660. (a) The donee of a power of appointment that is presently
exercisable, whether general or special, can contract to make an
appointment to the same extent that the donee could make an effective
appointment.
(b) The donee of a power of appointment cannot contract to make an
appointment while the power of appointment is not presently
exercisable. If a promise to make an appointment under such a power
is not performed, the promisee cannot obtain either specific
performance or damages, but the promisee is not prevented from
obtaining restitution of the value given by the promisee for the
promise.
(c) Unless the creating instrument expressly provides that the
donee may not contract to make an appointment while the power of
appointment is not presently exercisable, subdivision (b) does not
apply to the case where the donor and the donee are the same person.
In this case, the donee can contract to make an appointment to the
same extent that the donee could make an effective appointment if the
power of appointment were presently exercisable.

661. (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
donee 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 donee's
exercise of the power unless the release serves to benefit all
persons designated as provided by the donor.
(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 donee, who could be adversely
affected by the exercise of the power.
(B) The county recorder of the county in which the donee 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.

662. (a) A release on behalf of a minor donee shall be made by the
guardian of the estate of the minor pursuant to an order of court
obtained under this section.
(b) The guardian or other interested person may file a petition
with the court in which the guardianship of the estate proceeding is
pending for an order of the court authorizing or requiring the
guardian to release the ward's powers as a donee or a power of
appointment in whole or in part.
(c) Notice of the hearing on the petition shall be given for the
period and in the manner provided in Chapter 3 (commencing with
Section 1460) of Part 1 of Division 4 to all of the following (other
than the petitioner or persons joining in the petition):
(1) The persons required to be given notice under Chapter 3
(commencing with Section 1460) of Part 1 of Division 4.
(2) The donor of the power, if alive.
(3) The trustee, if the property to which the power relates is
held by a trustee.
(4) Other persons as ordered by the court.
(d) After hearing, the court in its discretion may make an order
authorizing or requiring the guardian to release on behalf of the
ward a general or special power of appointment as permitted under
Section 661, if the court determines, taking into consideration all
the relevant circumstances, that the ward as a prudent person would
make the release of the power of appointment if the ward had the
capacity to do so.
(e) Nothing in this section imposes any duty on the guardian to
file a petition under this section, and the guardian is not liable
for failure to file a petition under this section.