For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative or trustee, including relief from liability or penalty for failure to post bond, or to perform other duties, and for purposes of consenting to modification or termination of a trust or deviation from its terms, the sole holder or all co-holders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent their interests, as objects, takers in default or otherwise, are subject to the power.
History: 1953 Comp., § 32A-1-108, enacted by Laws 1975, ch. 257, § 1-108; 2016, ch. 69, § 701.
ANNOTATIONSThe 2016 amendment, effective July 1, 2016, amended the applicable acts by a holder of general power of appointment that are deemed to be on behalf of beneficiaries; after the heading, deleted the subsection designation "A", and in the first sentence of former Subsection A, after "representative or trustee", added "including relief from liability or penalty for failure to post bond, or to perform other duties, and for purposes of consenting to modification or termination of a trust or deviation from its terms"; and deleted Subsection B.
If beneficiaries unidentified, power not created. — The language of the decedent's will was insufficient to create a valid power of appointment, since it failed to identify with reasonable certainty the class of persons or entities from whom the beneficiaries could be selected under a power of appointment, nor did the will give the holder the unrestricted power to select any individuals or entities as beneficiaries. Under these circumstances, the purported power of appointment was too ambiguous to be enforced. In re Estate of Boyer, 1994-NMCA-005, 117 N.M. 74, 868 P.2d 1299.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 62 Am. Jur. 2d Powers of Appointment and Alienation §§ 85 to 234.
Share of beneficiary of trust or of decedent's estate, who is also trustee or executor or administrator, as subject to charge in respect of his liability in his fiduciary capacity, 123 A.L.R. 1320.
Accountability of personal representative for his use of decedent's real estate, 31 A.L.R.2d 243.
Power and standing of personal representative of deceased promisee to enforce a contract made for benefit of a third party, 76 A.L.R.2d 231.
72 C.J.S. Powers §§ 12 to 20.