Montana Code 72-7-309. Capture doctrine — disposition of ineffectively appointed property under general power
72-7-309. Capture doctrine — disposition of ineffectively appointed property under general power. To the extent a powerholder of a general power of appointment, other than a power to withdraw property from, revoke, or amend a trust, makes an ineffective appointment:
Terms Used In Montana Code 72-7-309
- Appointee: means a person to which a powerholder makes an appointment of appointive property. See Montana Code 72-7-102
- Donor: The person who makes a gift.
- Donor: means a person who creates a power of appointment. See Montana Code 72-7-102
- General power of appointment: means a power of appointment exercisable in favor of the powerholder, the powerholder's estate, a creditor of the powerholder, or a creditor of the powerholder's estate. See Montana Code 72-7-102
- Gift-in-default clause: means a clause identifying a taker in default of appointment. See Montana Code 72-7-102
- Impermissible appointee: means a person who is not a permissible appointee. See Montana Code 72-7-102
- Permissible appointee: means a person in whose favor a powerholder may exercise a power of appointment. 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
- Property: means real and personal property. See Montana Code 1-1-205
(1)the gift-in-default clause controls the disposition of the ineffectively appointed property; or
(2)if there is no gift-in-default clause or to the extent the clause is ineffective, the ineffectively appointed property:
(a)passes to:
(i)the powerholder if the powerholder is a permissible appointee and living; or
(ii)if the powerholder is an impermissible appointee or deceased, the powerholder’s estate if the estate is a permissible appointee; or
(b)if there is no taker under subsection (2)(a), passes under a reversionary interest to the donor or the donor‘s transferee or successor in interest.