Montana Code 72-7-301. Requisites for exercise of power of appointment
72-7-301. Requisites for exercise of power of appointment. (1) A power of appointment is exercised only:
Terms Used In Montana Code 72-7-301
- Appointive property: means the property or property interest subject to a power of appointment. See Montana Code 72-7-102
- Instrument: means a writing. See Montana Code 72-7-102
- 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 Montana Code 72-7-102
- Powerholder: means a person in whom a donor creates a power of appointment. See Montana Code 72-7-102
- Probate: Proving a will
- Property: means real and personal property. See Montana Code 1-1-205
- Terms of the instrument: means the manifestation of the intent of the maker of the instrument regarding the instrument's provisions as expressed in the instrument or as may be established by other evidence that would be admissible in a legal proceeding. See Montana Code 72-7-102
(a)if the instrument exercising the power is valid under applicable law;
(b)if the terms of the instrument exercising the power:
(i)manifest the powerholder‘s intent to exercise the power; and
(ii)subject to 72-7-304, satisfy the requirements of exercise, if any, imposed by the donor; and
(c)to the extent the appointment is a permissible exercise of the power.
(2)Notwithstanding any other provision of this act, the property subject to a power of appointment may not pass to and may not be administered as a part of the powerholder’s probate estate unless:
(a)the power of appointment is a general one that expressly authorizes the powerholder to appoint the appointive property to his or her own estate; and
(b)the powerholder utilizes clear and unequivocal language demonstrating a specific intent to exercise the power in favor of his or her own estate.