CHAPTER 181. POWERS OF APPOINTMENT - Texas Statutes

PROPERTY CODE

TITLE 10. MISCELLANEOUS BENEFICIAL PROPERTY INTERESTS

SUBTITLE C. POWERS OF APPOINTMENT

CHAPTER 181. POWERS OF APPOINTMENT

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 181.001. DEFINITIONS. In this chapter:

(1) "Donee" means a person, whether or not a resident of this

state, who, either alone or in conjunction with others, may

exercise a power.

(1-a) "Object of the power of appointment" means a person to

whom the donee is given the power to appoint.

(2) "Power" means the authority to appoint or designate the

recipient of property, to invade or consume property, to alter,

amend, or revoke an instrument under which an estate or trust is

created or held, and to terminate a right or interest under an

estate or trust, and any authority remaining after a partial

release of a power.

(3) "Property" means all property and interests in property,

real or personal, including parts of property, partial interests,

and all or any part of the income from property.

(4) "Release" means a renunciation, relinquishment, surrender,

refusal to accept, extinguishment, and any other form of release,

including a covenant not to exercise all or part of a power.

Acts 1983, 68th Leg., p. 3723, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 2003, 78th Leg., ch. 551, Sec. 1, eff.

Sept. 1, 2003.

Sec. 181.002. APPLICATION. (a) Except as provided by

Subsection (b), this chapter applies:

(1) to a power or a release of a power, regardless of the date

the power is created;

(2) to a vested, contingent, or conditional power; and

(3) to a power classified as a power in gross, a power

appurtenant, a power appendant, a collateral power, a general,

limited, or special power, an exclusive or nonexclusive power, or

any other power.

(b) This chapter applies regardless of the time or manner a

power is created or reserved or the release is made and

regardless of the time, manner, or in whose favor a power may be

exercised.

(c) This chapter does not apply to a power in trust that is

imperative.

Acts 1983, 68th Leg., p. 3723, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 181.003. CHAPTER NOT EXCLUSIVE. The provisions of this

chapter concerning the release of a power are not exclusive.

Acts 1983, 68th Leg., p. 3724, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 181.004. CONSTRUCTION. This chapter is intended to be

declarative of the common law of this state, and it shall be

liberally construed to make all powers, except imperative powers

in trust, releasable unless the instrument creating the trust

expressly provides otherwise.

Acts 1983, 68th Leg., p. 3724, ch. 576, Sec. 1, eff. Jan. 1,

1984.

SUBCHAPTER B. RELEASE OF POWERS OF APPOINTMENT

Sec. 181.051. AUTHORITY OF DONEE TO RELEASE POWER. Unless the

instrument creating the power specifically provides to the

contrary, a donee may at any time:

(1) completely release the power;

(2) release the power as to any property subject to the power;

(3) release the power as to a person in whose favor a power may

be exercised; or

(4) limit in any respect the extent to which the power may be

exercised.

Acts 1983, 68th Leg., p. 3724, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 181.052. REQUISITES OF RELEASE. (a) A partial or complete

release of a power, with or without consideration, is valid if

the donee executes and acknowledges, in the manner required by

law for the execution and recordation of deeds, an instrument

evidencing an intent to make the release, and the instrument is

delivered:

(1) to the person or in the manner specified in the instrument

creating the power;

(2) to an adult, other than the donee releasing the power, who

may take any of the property subject to the power if the power is

not exercised or in whose favor it may be exercised after the

partial release;

(3) to a trustee or cotrustee of the property subject to the

power; or

(4) to an appropriate county clerk for recording.

(b) An instrument releasing a power may be recorded in a county

in this state in which:

(1) property subject to the power is located;

(2) a donee in control of the property resides;

(3) a trustee in control of the property resides;

(4) a corporate trustee in control of the property has its

principal office; or

(5) the instrument creating the power is probated or recorded.

Acts 1983, 68th Leg., p. 3724, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 181.053. RELEASE BY GUARDIAN. If a person under a

disability holds a power, the guardian of the person's estate may

release the power in the manner provided in this chapter on the

order of the court in this state in which the guardian was

appointed or in which the guardianship proceeding is pending.

Acts 1983, 68th Leg., p. 3725, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 181.054. EFFECT OF RELEASE ON MULTIPLE DONEES. Unless the

instrument creating a power provides otherwise, the complete or

partial release by one or more donees of a power that may be

exercised by two or more donees, either as an individual or a

fiduciary, together or successively, does not prevent or limit

the exercise or participation in the exercise of the power by the

other donee or donees.

Acts 1983, 68th Leg., p. 3725, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 181.055. NOTICE OF RELEASE. (a) A fiduciary or other

person in possession or control of property subject to a power,

other than the donee, does not have notice of a release of the

power until the original release or a copy is delivered to the

fiduciary or other person.

(b) A purchaser, lessee, or mortgagee of real property subject

to a power who has paid a valuable consideration and who is

without actual notice does not have notice of a release of the

power until the instrument releasing the power is filed for

record with the county clerk of the county in which the real

property is located.

Acts 1983, 68th Leg., p. 3725, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 181.056. RECORDING. (a) A county clerk shall record a

release of a power in the county deed records, and the clerk

shall index the release, with the name of the donee entered in

the grantor index.

(b) The county clerk shall charge the same fee for recording the

release of a power as the clerk is authorized to charge for

recording a deed.

Acts 1983, 68th Leg., p. 3726, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 181.057. EFFECT OF FAILURE TO DELIVER OR FILE. Failure to

deliver or file an instrument releasing a power under Sections

181.052 and 181.055 does not affect the validity of the release

as to the donee, the person in whose favor the power may be

exercised, or any other person except those expressly protected

by Sections 181.052 and 181.055.

Acts 1983, 68th Leg., p. 3726, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 181.058. RESTRAINTS ON ALIENATION OR ANTICIPATION. The

release of a power that otherwise may be released is not

prevented merely by provisions of the instrument creating the

power that restrain alienation or anticipation.

Acts 1983, 68th Leg., p. 3726, ch. 576, Sec. 1, eff. Jan. 1,

1984.

SUBCHAPTER C. EXERCISE OF POWERS OF APPOINTMENT

Sec. 181.081. EXTENT OF POWER. Unless an instrument creating a

power expressly provides to the contrary, a donee may exercise a

power in any manner consistent with this subchapter.

Added by Acts 2003, 78th Leg., ch. 551, Sec. 2, eff. Sept. 1,

2003.

Sec. 181.082. GENERAL EXERCISE. In exercising a power, a donee

may make an appointment:

(1) of present, future, or present and future interests;

(2) with conditions and limitations;

(3) with restraints on alienation;

(4) of interests to a trustee for the benefit of one or more

objects of the power; and

(5) that creates any right existing under common law.

Added by Acts 2003, 78th Leg., ch. 551, Sec. 2, eff. Sept. 1,

2003.

Sec. 181.083. CREATING ADDITIONAL POWERS. (a) In exercising a

power, a donee may make appointments that create in the objects

of the power additional powers of appointment. The additional

powers of appointment must be exercisable in favor of objects of

the power who would have been permissible objects under the

original donee's power.

(b) In exercising a power, a donee who may appoint outright to

an object of the power may make appointments that create in the

object of the power powers exercisable in favor of persons that

the original donee may direct, even though the objects of the

secondary power of appointment may not have been permissible

objects of the original donee's power.

Added by Acts 2003, 78th Leg., ch. 551, Sec. 2, eff. Sept. 1,

2003.