1     
UNIFORM POWERS OF APPOINTMENT ACT

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: V. Lowry Snow

5     
Senate Sponsor: Lyle W. Hillyard

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to powers of appointment.
10     Highlighted Provisions:
11          This bill:
12          ▸     addresses compliance with specific reference requirements;
13          ▸     enacts the Uniform Powers of Appointment Act, including:
14               •     general provisions, definitions, governing law, and the relationship of common
15     law and principles of equity;
16               •     providing for the creation, revocation, and amendment of the power of
17     appointment;
18               •     addressing the exercise of a power of appointment;
19               •     addressing disclaimer or release and the contract to appoint or not appoint;
20               •     addressing the rights of a powerholder's creditors in appointive property; and
21               •     miscellaneous provisions; and
22          ▸     makes technical and conforming amendments.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:
26          None
27     Utah Code Sections Affected:
28     AMENDS:
29          75-2-208, as last amended by Laws of Utah 1999, Chapter 142

30          75-7-505, as enacted by Laws of Utah 2004, Chapter 89
31     ENACTS:
32          75-10-101, Utah Code Annotated 1953
33          75-10-102, Utah Code Annotated 1953
34          75-10-103, Utah Code Annotated 1953
35          75-10-104, Utah Code Annotated 1953
36          75-10-201, Utah Code Annotated 1953
37          75-10-202, Utah Code Annotated 1953
38          75-10-203, Utah Code Annotated 1953
39          75-10-204, Utah Code Annotated 1953
40          75-10-205, Utah Code Annotated 1953
41          75-10-206, Utah Code Annotated 1953
42          75-10-301, Utah Code Annotated 1953
43          75-10-302, Utah Code Annotated 1953
44          75-10-303, Utah Code Annotated 1953
45          75-10-304, Utah Code Annotated 1953
46          75-10-305, Utah Code Annotated 1953
47          75-10-306, Utah Code Annotated 1953
48          75-10-307, Utah Code Annotated 1953
49          75-10-308, Utah Code Annotated 1953
50          75-10-309, Utah Code Annotated 1953
51          75-10-310, Utah Code Annotated 1953
52          75-10-311, Utah Code Annotated 1953
53          75-10-312, Utah Code Annotated 1953
54          75-10-313, Utah Code Annotated 1953
55          75-10-314, Utah Code Annotated 1953
56          75-10-401, Utah Code Annotated 1953
57          75-10-402, Utah Code Annotated 1953

58          75-10-403, Utah Code Annotated 1953
59          75-10-404, Utah Code Annotated 1953
60          75-10-405, Utah Code Annotated 1953
61          75-10-406, Utah Code Annotated 1953
62          75-10-407, Utah Code Annotated 1953
63          75-10-501, Utah Code Annotated 1953
64          75-10-502, Utah Code Annotated 1953
65          75-10-503, Utah Code Annotated 1953
66          75-10-601, Utah Code Annotated 1953
67          75-10-602, Utah Code Annotated 1953
68          75-10-603, Utah Code Annotated 1953
69     REPEALS:
70          75-2-608, as repealed and reenacted by Laws of Utah 1998, Chapter 39
71          75-2-704, as enacted by Laws of Utah 1998, Chapter 39
72     

73     Be it enacted by the Legislature of the state of Utah:
74          Section 1. Section 75-2-208 is amended to read:
75          75-2-208. Exclusions, valuation, and overlapping application.
76          (1) The value of any separate property of the decedent or the decedent's surviving
77     spouse is excluded from the augmented estate even if it otherwise would be included in the
78     augmented estate under Sections 75-2-204, 75-2-205, 75-2-206, and 75-2-207. Property is
79     separate property if it was:
80          (a) owned at the date of the most recent marriage of the decedent and the decedent's
81     surviving spouse;
82          (b) acquired by gift or disposition at death from a person other than the decedent or the
83     decedent's surviving spouse;
84          (c) subject to a presently exercisable power of appointment not created by the decedent
85     or the decedent's spouse that is exempt under Section 75-10-502;

86          [(c)] (d) acquired in exchange for or with the proceeds of other separate property;
87          [(d)] (e) designated as separate property by written waiver under Section 75-2-213; or
88          [(e)] (f) acquired as a recovery for personal injury but only to the extent attributable to
89     expenses paid or otherwise satisfied from separate property.
90          (2) Income attributable to investment, rental, licensing or other use of separate property
91     during the most recent marriage of the decedent and the decedent's surviving spouse is separate
92     property.
93          (3) Appreciation in the value of separate property during the most recent marriage of
94     the decedent and the decedent's surviving spouse is separate property.
95          (4) Except as provided in this Subsection (4), any increase in the value of separate
96     property due to improvements to or the reduction in debt owed against separate property during
97     the most recent marriage of the decedent and the decedent's surviving spouse is separate
98     property. An amount equal to any payment for improvements to or the reduction in debt owed
99     against separate property of the decedent made during the most recent marriage of the decedent
100     and the decedent's surviving spouse from the joint or commingled funds of the decedent and
101     the decedent's surviving spouse, or from the separate property of the surviving spouse, shall not
102     be separate property to the extent of the amount actually paid for the improvements or the
103     amount actually paid for the reduction in debt, including principal, interest, and other payments
104     under the note, owed against separate property. The amount that is determined not to be
105     separate property may not exceed the value of the separate property.
106          (5) All property of the decedent or the decedent's surviving spouse, whether or not
107     commingled, is rebuttably presumed not to be separate property.
108          (6) The value of any property is excluded from the decedent's nonprobate transfers to
109     others:
110          (a) to the extent the decedent received adequate and full consideration in money or
111     money's worth for a transfer of the property; or
112          (b) if the property was transferred with the written joinder of, or if the transfer was
113     consented to in writing by, the surviving spouse.

114          (7) The value of property:
115          (a) included in the augmented estate under Section 75-2-205, 75-2-206, or 75-2-207 is
116     reduced in each category by enforceable claims against the included property; and
117          (b) includes the commuted value of any present or future interest and the commuted
118     value of amounts payable under any trust, life insurance settlement option, annuity contract,
119     public or private pension, disability compensation, death benefit or retirement plan, or any
120     similar arrangement, exclusive of the federal Social Security system.
121          (8) In case of overlapping application to the same property of the section or subsections
122     of Section 75-2-205, 75-2-206, or 75-2-207, the property is included in the augmented estate
123     under the provision yielding the greatest value, and under only one overlapping provision if
124     they all yield the same value.
125          Section 2. Section 75-7-505 is amended to read:
126          75-7-505. Creditor's claim against settlor.
127          [(1)] Whether or not the terms of a trust contain a spendthrift provision, the following
128     rules apply:
129          [(a)] (1) During the lifetime of the settlor, the property of a revocable trust is subject to
130     the claims of the settlor's creditors. If a trust has more than one settlor, the amount the creditor
131     or assignee of a particular settlor may reach may not exceed the settlor's interest in the portion
132     of the trust attributable to that settlor's contribution.
133          [(b)] (2) With respect to an irrevocable trust other than an irrevocable trust that meets
134     the requirements of Section 25-6-14, a creditor or assignee of the settlor may reach the
135     maximum amount that can be distributed to or for the settlor's benefit. If the trust has more
136     than one settlor, the amount the creditor or assignee of a particular settlor may reach may not
137     exceed the settlor's interest in the portion of the trust attributable to that settlor's contribution.
138          [(c)] (3) After the death of a settlor, and subject to the settlor's right to direct the source
139     from which liabilities will be paid, the property of a trust that was revocable at the settlor's
140     death, but not property received by the trust as a result of the death of the settlor which is
141     otherwise exempt from the claims of the settlor's creditors, is subject to claims of the settlor's

142     creditors, costs of administration of the settlor's estate, the expenses of the settlor's funeral and
143     disposal of remains, and statutory allowances to a surviving spouse and children to the extent
144     the settlor's probate estate is inadequate to satisfy those claims, costs, expenses, and
145     allowances.
146          [(2) For purposes of this section:]
147          [(a) during the period the power may be exercised, the holder of a power of withdrawal
148     is treated in the same manner as the settlor of a revocable trust to the extent of the property
149     subject to the power; and]
150          [(b) upon the lapse, release, or waiver of the power, the holder is treated as the settlor
151     of the trust only to the extent the value of the property affected by the lapse, release, or waiver
152     exceeds the greater of the amount specified in Subsection 2041(b)(2), 2514(e), or Section
153     2503(b) of the Internal Revenue Code of 1986, in each case as in effect on May 1, 2004.]
154          Section 3. Section 75-10-101 is enacted to read:
155     
CHAPTER 10. UNIFORM POWERS OF APPOINTMENT ACT

156     
Part 1. General Provisions

157          75-10-101. Title.
158          This chapter is known as the "Uniform Powers of Appointment Act."
159          Section 4. Section 75-10-102 is enacted to read:
160          75-10-102. Definitions.
161          As used in this chapter:
162          (1) "Appointee" means a person to which a powerholder makes an appointment of
163     appointive property.
164          (2) "Appointive property" means the property or property interest subject to a power of
165     appointment.
166          (3) "Blanket-exercise clause" means a clause in an instrument that exercises a power of
167     appointment and is not a specific-exercise clause. The term includes a clause that:
168          (a) expressly uses the words "any power" in exercising any power of appointment the
169     powerholder has;

170          (b) expressly uses the words "any property" in appointing any property over which the
171     powerholder has a power of appointment; or
172          (c) disposes of all property subject to disposition by the powerholder.
173          (4) "Donor" means a person that creates a power of appointment.
174          (5) "Exclusionary power of appointment" means a power of appointment exercisable in
175     favor of any one or more of the permissible appointees to the exclusion of the other permissible
176     appointees.
177          (6) "General power of appointment" means a power of appointment exercisable in
178     favor of the powerholder, the powerholder's estate, a creditor of the powerholder, or a creditor
179     of the powerholder's estate.
180          (7) "Gift-in-default clause" means a clause identifying a taker in default of
181     appointment.
182          (8) "Impermissible appointee" means a person that is not a permissible appointee.
183          (9) "Instrument" means a record.
184          (10) "Nongeneral power of appointment" means a power of appointment that is not a
185     general power of appointment. The terms "special power of appointment," "limited power of
186     appointment," or similar terminology used in an instrument creating a power that does not grant
187     powers making it a general power of appointment as defined in this chapter mean the same as
188     and may be used interchangeably with the term nongeneral power of appointment.
189          (11) "Permissible appointee" means a person in whose favor a powerholder may
190     exercise a power of appointment.
191          (12) "Person" means an individual, estate, trust, business or nonprofit entity, public
192     corporation, government or governmental subdivision, agency, instrumentality, or other legal
193     entity.
194          (13) "Powerholder" means a person in whom a donor creates a power of appointment.
195          (14) "Power of appointment" means a power that enables a powerholder acting in a
196     nonfiduciary capacity to designate a recipient of an interest in, or another power of appointment
197     over, the appointive property. The term does not include a power of attorney.

198          (15) "Presently exercisable power of appointment" means a power of appointment
199     exercisable by the powerholder at a relevant time. The term:
200          (a) includes a power of appointment not exercisable until the occurrence of a specified
201     event, the satisfaction of an ascertainable standard, or the passage of a specified time only after:
202          (i) the occurrence of the specified event;
203          (ii) the satisfaction of the ascertainable standard; or
204          (iii) the passage of the specified time; and
205          (b) does not include a power exercisable only at the powerholder's death.
206          (16) "Record" means information that is inscribed on a tangible medium or that is
207     stored in an electronic or other medium and is retrievable in perceivable form.
208          (17) "Specific-exercise clause" means a clause in an instrument that specifically refers
209     to and exercises a particular power of appointment.
210          (18) "Taker in default of appointment" means a person that takes all or part of the
211     appointive property to the extent the powerholder does not effectively exercise the power of
212     appointment.
213          (19) "Terms of the instrument" means the manifestation of the intent of the maker of
214     the instrument regarding the instrument's provisions as expressed in the instrument or as may
215     be established by other evidence that would be admissible in a legal proceeding.
216          Section 5. Section 75-10-103 is enacted to read:
217          75-10-103. Governing law.
218          (1) Unless the terms of the instrument creating a power of appointment manifest a
219     contrary intent:
220          (a) the creation, revocation, amendment, interpretation and definition of terms, or the
221     determination of the rights of the appointee of the power is governed by the law of the donor's
222     domicile at the relevant time; and
223          (b) the formalities for the exercise, release, or disclaimer of the power, or the
224     revocation or amendment of the exercise, release, or disclaimer of the power is governed by the
225     law of the powerholder's state of domicile at the relevant time.

226          (2) The law of the powerholder's state of domicile may not govern the interpretation
227     and definition of terms, or the determination of the rights of the appointee of the power, which
228     shall be governed by the law of the donor's domicile at the relevant time.
229          (3) Claims of creditors, including creditor claims regarding a power not created by a
230     powerholder as set forth in Section 75-10-502, and other parties claiming an interest in
231     property or rights subject to a power will be governed by the laws of the donor's domicile at the
232     time of the creation of the power and not the powerholder's state of domicile either at the time
233     of the creation of the power or at the time of exercise of the power.
234          Section 6. Section 75-10-104 is enacted to read:
235          75-10-104. Common law and principles of equity.
236          The common law and principles of equity supplement this chapter, except to the extent
237     modified by this chapter or laws of this state other than this chapter.
238          Section 7. Section 75-10-201 is enacted to read:
239     
Part 2. Creation, Revocation, and Amendment of Power of Appointment

240          75-10-201. Creation of power of appointment.
241          (1) A power of appointment is created only if:
242          (a) the instrument creating the power:
243          (i) is valid under applicable law; and
244          (ii) except as otherwise provided in Subsection (2), transfers the appointive property;
245     and
246          (b) the terms of the instrument creating the power manifest the donor's intent to create
247     in a powerholder a power of appointment over the appointive property exercisable in favor of a
248     permissible appointee.
249          (2) Subsection (1)(a)(ii) does not apply to the creation of a power of appointment by
250     the exercise of a power of appointment.
251          (3) A power of appointment may not be created in a deceased individual.
252          (4) Subject to an applicable rule against perpetuities, a power of appointment may be
253     created in an unborn or unascertained powerholder.

254          Section 8. Section 75-10-202 is enacted to read:
255          75-10-202. Nontransferability.
256          A powerholder may not transfer a power of appointment. If a powerholder dies without
257     exercising or releasing a power, the power lapses.
258          Section 9. Section 75-10-203 is enacted to read:
259          75-10-203. Presumption of unlimited authority.
260          Subject to Section 75-10-205, and unless the terms of the instrument creating a power
261     of appointment manifest a contrary intent, the power is:
262          (1) presently exercisable;
263          (2) exclusionary; and
264          (3) except as otherwise provided in Section 75-10-204, general.
265          Section 10. Section 75-10-204 is enacted to read:
266          75-10-204. Exception to presumption of unlimited authority.
267          Unless the terms of the instrument creating a power of appointment manifest a contrary
268     intent, the power is nongeneral if:
269          (1) the power is exercisable only at the powerholder's death; and
270          (2) the permissible appointees of the power are a defined and limited class that does
271     not include the powerholder's estate, the powerholder's creditors, or the creditors of the
272     powerholder's estate.
273          Section 11. Section 75-10-205 is enacted to read:
274          75-10-205. Rules of classification.
275          (1) In this section, "adverse party" means a person with a substantial beneficial interest
276     in property that would be affected adversely by a powerholder's exercise or nonexercise of a
277     power of appointment in favor of the powerholder, the powerholder's estate, a creditor of the
278     powerholder, or a creditor of the powerholder's estate.
279          (2) If a powerholder may exercise a power of appointment only with the consent or
280     joinder of an adverse party, the power is nongeneral.
281          (3) If the permissible appointees of a power of appointment are not defined and

282     limited, the power is exclusionary.
283          Section 12. Section 75-10-206 is enacted to read:
284          75-10-206. Donor's power to revoke or amend.
285          A donor may revoke or amend a power of appointment unless or to the extent the
286     instrument creating the power is made irrevocable by the donor or the exercise of a presently
287     exercisable power has been irrevocably made or effected.
288          Section 13. Section 75-10-301 is enacted to read:
289     
Part 3. Exercise of Power of Appointment

290          75-10-301. Requisites for exercise of power of appointment.
291          A power of appointment is exercised only:
292          (1) if the instrument exercising the power is valid under applicable law;
293          (2) if the terms of the instrument exercising the power:
294          (a) manifest the powerholder's intent to exercise the power; and
295          (b) satisfy the requirements of exercise, if any, imposed by the donor; and
296          (3) to the extent the appointment is a permissible exercise of the power.
297          Section 14. Section 75-10-302 is enacted to read:
298          75-10-302. Intent to exercise -- Determining intent from residuary clause.
299          (1) As used in this section:
300          (a) "Residuary clause" does not include a residuary clause containing a
301     blanket-exercise clause or a specific-exercise clause.
302          (b) "Will" includes a codicil and a testamentary instrument that revises another will.
303          (2) A residuary clause in a powerholder's will, or a comparable clause in the
304     powerholder's revocable trust, manifests the powerholder's intent to exercise a power of
305     appointment only if:
306          (a) the terms of the instrument containing the residuary clause do not manifest a
307     contrary intent;
308          (b) the power is a general power exercisable in favor of the powerholder's estate;
309          (c) there is no gift-in-default clause or the clause is ineffective; and

310          (d) the powerholder did not release the power.
311          Section 15. Section 75-10-303 is enacted to read:
312          75-10-303. Intent to exercise -- After-acquired power.
313          Unless the terms of the instrument exercising a power of appointment manifest a
314     contrary intent:
315          (1) except as otherwise provided in Subsection (2), a blanket-exercise clause extends to
316     a power acquired by the powerholder after executing the instrument containing the clause; and
317          (2) if the powerholder is also the donor of the power, the clause does not extend to the
318     power unless there is no gift-in-default clause or the gift-in-default clause is ineffective.
319          Section 16. Section 75-10-304 is enacted to read:
320          75-10-304. Compliance with donor-imposed formal requirements.
321          (1) A powerholder's compliance with formal requirements of appointment imposed by
322     the donor is sufficient only if the powerholder substantially complies with the conditions,
323     requirements, and formalities set forth in the power of appointment, including complying with
324     all the requirements for making specific reference to the power, that the power shall be
325     exercised in a specific document such as a will, or that the document exercising the power shall
326     be witnessed or notarized. If the donor limited the powerholder's exercise to a validly executed
327     will, substantial compliance may not include the exercise of the power by a trust or another
328     document not meeting the requirements of a properly executed will.
329          (2) Unless required by the instrument creating the power, the probate of a properly
330     executed will is not required for the exercise of a power to be valid and complete.
331          Section 17. Section 75-10-305 is enacted to read:
332          75-10-305. Permissible appointment.
333          (1) A powerholder of a general power of appointment that permits appointment to the
334     powerholder or the powerholder's estate may make any appointment, including an appointment
335     in trust or creating a new power of appointment, that the powerholder could make in disposing
336     of the powerholder's own property.
337          (2) A powerholder of a general power of appointment that permits appointment only to

338     the creditors of the powerholder or of the powerholder's estate may appoint only to those
339     creditors.
340          (3) Unless the terms of the instrument creating a power of appointment manifest a
341     contrary intent, the powerholder of a nongeneral power may:
342          (a) make an appointment in any form, including an appointment in trust, in favor of a
343     permissible appointee;
344          (b) create a general power in a permissible appointee; or
345          (c) create a nongeneral power in any person to appoint one or more of the permissible
346     appointees of the original nongeneral power.
347          Section 18. Section 75-10-306 is enacted to read:
348          75-10-306. Appointment to deceased appointee or permissible appointee's
349     descendant.
350          (1) Subject to Sections 75-2-603 and 75-2-604, an appointment to a deceased appointee
351     is ineffective.
352          (2) Unless the terms of the instrument creating a power of appointment manifest a
353     contrary intent, a powerholder of a nongeneral power may exercise the power in favor of, or
354     create a new power of appointment in, a descendant of a deceased permissible appointee
355     whether or not the descendant is described by the donor as a permissible appointee.
356          Section 19. Section 75-10-307 is enacted to read:
357          75-10-307. Impermissible appointment.
358          (1) Except as otherwise provided in Section 75-10-306, an exercise of a power of
359     appointment in favor of an impermissible appointee is ineffective.
360          (2) An exercise of a power of appointment in favor of a permissible appointee is
361     ineffective to the extent the appointment is a fraud on the power.
362          Section 20. Section 75-10-308 is enacted to read:
363          75-10-308. Elective allocation doctrine.
364          If a powerholder exercises a power of appointment in a disposition that also disposes of
365     property the powerholder owns, the owned property and the appointive property shall be

366     allocated in the permissible manner that best carries out the powerholder's intent.
367          Section 21. Section 75-10-309 is enacted to read:
368          75-10-309. Capture doctrine -- Disposition of ineffectively appointed property
369     under general power.
370          To the extent a powerholder of a general power of appointment, other than a power to
371     withdraw property from, revoke, or amend a trust, makes an ineffective appointment:
372          (1) the gift-in-default clause controls the disposition of the ineffectively appointed
373     property; or
374          (2) if there is no gift-in-default clause or to the extent the clause is ineffective, the
375     ineffectively appointed property:
376          (a) passes to:
377          (i) the powerholder if the powerholder is a permissible appointee and is living; or
378          (ii) if the powerholder is an impermissible appointee or is deceased, the powerholder's
379     estate if the estate is a permissible appointee; or
380          (b) if there is no taker under Subsection (2)(a), passes under a reversionary interest to
381     the donor or the donor's transferee or successor in interest.
382          Section 22. Section 75-10-310 is enacted to read:
383          75-10-310. Disposition of unappointed property under released or unexercised
384     general power.
385          To the extent a powerholder releases or fails to exercise a general power of appointment
386     other than a power to withdraw property from, revoke, or amend a trust:
387          (1) the gift-in-default clause controls the disposition of the unappointed property; or
388          (2) if there is no gift-in-default clause or to the extent the clause is ineffective:
389          (a) except as otherwise provided in Subsection (2)(b), the unappointed property passes
390     to:
391          (i) the powerholder if the powerholder is a permissible appointee and is living; or
392          (ii) if the powerholder is an impermissible appointee or is deceased, the powerholder's
393     estate if the estate is a permissible appointee; or

394          (b) to the extent the powerholder released the power, or if there is no taker under
395     Subsection (2)(a), the unappointed property passes under a reversionary interest to the donor or
396     the donor's transferee or successor in interest.
397          Section 23. Section 75-10-311 is enacted to read:
398          75-10-311. Disposition of unappointed property under released or unexercised
399     nongeneral power.
400          To the extent a powerholder releases, ineffectively exercises, or fails to exercise a
401     nongeneral power of appointment:
402          (1) the gift-in-default clause controls the disposition of the unappointed property; or
403          (2) if there is no gift-in-default clause or to the extent the clause is ineffective, the
404     unappointed property:
405          (a) passes to the permissible appointees if:
406          (i) the permissible appointees are defined and limited; and
407          (ii) the terms of the instrument creating the power do not manifest a contrary intent; or
408          (b) if there is no taker under Subsection (2)(a), passes under a reversionary interest to
409     the donor or the donor's transferee or successor in interest.
410          Section 24. Section 75-10-312 is enacted to read:
411          75-10-312. Disposition of unappointed property if partial appointment to taker in
412     default.
413          Unless the terms of the instrument creating or exercising a power of appointment
414     manifest a contrary intent, if the powerholder makes a valid partial appointment to a taker in
415     default of appointment, the taker in default of appointment may share fully in unappointed
416     property.
417          Section 25. Section 75-10-313 is enacted to read:
418          75-10-313. Appointment to taker in default.
419          If a powerholder makes an appointment to a taker in default of appointment and the
420     appointee would have taken the property under a gift-in-default clause had the property not
421     been appointed, the power of appointment is considered not to have been exercised and the

422     appointee takes under the clause.
423          Section 26. Section 75-10-314 is enacted to read:
424          75-10-314. Powerholder's authority to revoke or amend exercise.
425          Unless the terms of the instrument creating the power of appointment or the instrument
426     exercising the power of appointment provide that the exercise is irrevocable or unamendable, a
427     powerholder may revoke or amend an exercise of a power of appointment made by an
428     instrument effective during the life of the powerholder where the exercise is to become
429     effective at some future time or contingency and where that future time and contingency has
430     not yet occurred, as long as the revocation or amendment is done with the same formality as the
431     original exercise of the power of appointment.
432          Section 27. Section 75-10-401 is enacted to read:
433     
Part 4. Disclaimer or Release - Contract to Appoint or Not to Appoint

434          75-10-401. Disclaimer.
435          As provided by Section 75-2-801:
436          (1) A powerholder may disclaim all or part of a power of appointment.
437          (2) A permissible appointee, an appointee, or a taker in default of appointment may
438     disclaim all or part of an interest in appointive property.
439          Section 28. Section 75-10-402 is enacted to read:
440          75-10-402. Authority to release.
441          A powerholder may release a power of appointment, in whole or in part, except to the
442     extent the terms of the instrument creating the power prevent the release.
443          Section 29. Section 75-10-403 is enacted to read:
444          75-10-403. Method of release.
445          A powerholder of a releasable power of appointment may release the power in whole or
446     in part:
447          (1) by substantial compliance with a method provided in the terms of the instrument
448     creating the power; or
449          (2) if the terms of the instrument creating the power do not provide a method or the

450     method provided in the terms of the instrument is not expressly made exclusive, by a record
451     manifesting the powerholder's intent by clear and convincing evidence.
452          Section 30. Section 75-10-404 is enacted to read:
453          75-10-404. Revocation or amendment of release.
454          A powerholder may revoke or amend a release of a power of appointment only to the
455     extent that:
456          (1) the instrument of release is revocable by the powerholder; or
457          (2) the powerholder reserves a power of revocation or amendment in the instrument of
458     release.
459          Section 31. Section 75-10-405 is enacted to read:
460          75-10-405. Power to contract -- Presently exercisable power of appointment.
461          A powerholder of a presently exercisable power of appointment may contract:
462          (1) not to exercise the power; or
463          (2) to exercise the power if the contract when made does not confer a benefit on an
464     impermissible appointee.
465          Section 32. Section 75-10-406 is enacted to read:
466          75-10-406. Power to contract -- Power of appointment not presently exercisable.
467          A powerholder of a power of appointment that is not presently exercisable may contract
468     to exercise or not to exercise the power only if the powerholder:
469          (1) is also the donor of the power; and
470          (2) has reserved the power in a revocable trust.
471          Section 33. Section 75-10-407 is enacted to read:
472          75-10-407. Remedy for breach of contract to appoint or not to appoint.
473          The remedy for a powerholder's breach of a contract to appoint or not to appoint
474     appointive property is limited to damages payable out of the appointive property or, if
475     appropriate, specific performance of the contract.
476          Section 34. Section 75-10-501 is enacted to read:
477     
Part 5. Rights of Powerholder's Creditors in Appointive Property


478          75-10-501. Creditor claim -- General power created by powerholder.
479          (1) In this section, "power of appointment created by the powerholder" includes a
480     power of appointment created in a transfer by another person to the extent the powerholder
481     contributed value to the transfer.
482          (2) Appointive property subject to a general power of appointment created by the
483     powerholder is subject to a claim of a creditor of the powerholder or of the powerholder's estate
484     to the extent provided in Title 25, Chapter 6, Uniform Fraudulent Transfer Act.
485          (3) Subject to Subsection (2), appointive property subject to a general power of
486     appointment created by the powerholder is not subject to a claim of a creditor of the
487     powerholder or the powerholder's estate to the extent the powerholder irrevocably appointed
488     the property in favor of a person other than the powerholder or the powerholder's estate.
489          (4) Subject to Subsections (2) and (3), and notwithstanding the presence of a
490     spendthrift provision or whether the claim arose before or after the creation of the power of
491     appointment, appointive property subject to a general power of appointment created by the
492     powerholder is subject to a claim of a creditor of:
493          (a) the powerholder, to the same extent as if the powerholder owned the appointive
494     property, if the power is presently exercisable; and
495          (b) the powerholder's estate, to the extent the estate is insufficient to satisfy the claim
496     and subject to the right of a decedent to direct the source from which liabilities are paid, if the
497     power is exercisable at the powerholder's death.
498          Section 35. Section 75-10-502 is enacted to read:
499          75-10-502. Creditor claim -- Power not created by powerholder.
500          (1) The property subject to a general or a nongeneral power of appointment not created
501     by the powerholder, including a presently exercisable general or nongeneral power of
502     appointment, is exempt from a claim of a creditor of the powerholder or the powerholder's
503     estate. The powerholder of such a power may not be compelled to exercise the power and the
504     powerholder's creditors may not acquire the power, any rights thereto, or reach the trust
505     property or beneficial interests by any other means. A court may not exercise or require the

506     powerholder to exercise the power of appointment.
507          (2) As set forth in Section 75-10-103, the law of the donor's domicile at the time of
508     creation shall govern claims of creditors and other parties claiming an interest in property or
509     rights subject to a power of appointment.
510          Section 36. Section 75-10-503 is enacted to read:
511          75-10-503. Power to withdraw.
512          (1) For purposes of this part, and except as otherwise provided in Subsection (2), a
513     power to withdraw property from a trust is treated, during the time the power may be exercised,
514     as a presently exercisable general power of appointment to the extent of the property subject to
515     the power to withdraw.
516          (2) On the lapse, release, or waiver of a power to withdraw property from a trust, the
517     power is treated as a presently exercisable general power of appointment only to the extent the
518     value of the property affected by the lapse, release, or waiver exceeds the greater of the amount
519     specified in 26 U.S.C. Sec. 2041(b)(2) and 26 U.S.C. Sec. 2514(e) or the amount specified in
520     26 U.S.C. Sec. 2503(b).
521          Section 37. Section 75-10-601 is enacted to read:
522     
Part 6. Miscellaneous Provisions

523          75-10-601. Uniformity of application and construction.
524          In applying and construing this uniform act, consideration shall be given to the need to
525     promote uniformity of the law with respect to its subject matter among states that enact it.
526          Section 38. Section 75-10-602 is enacted to read:
527          75-10-602. Relation to Electronic Signatures in Global and National Commerce
528     Act.
529          This chapter modifies, limits, or supersedes the Electronic Signatures in Global and
530     National Commerce Act, 15 U.S.C. Sec. 7001 et seq., but does not modify, limit, or supersede
531     Section 101(c) of that act, 15 U.S.C. Sec. 7001(c), or authorize electronic delivery of any of the
532     notices described in Section 103(b) of that act, 15 U.S.C. Sec. 7003(b).
533          Section 39. Section 75-10-603 is enacted to read:

534          75-10-603. Application to existing relationships.
535          (1) Except as otherwise provided in this chapter, on and after May 9, 2017:
536          (a) this chapter applies to a power of appointment created before, on, or after May 9,
537     2017;
538          (b) this chapter applies to a judicial proceeding concerning a power of appointment
539     commenced on or after May 9, 2017;
540          (c) this chapter applies to a judicial proceeding concerning a power of appointment
541     commenced before May 9, 2017, unless the court finds that application of a particular
542     provision of this chapter would interfere substantially with the effective conduct of the judicial
543     proceeding or prejudice a right of a party, in which case the particular provision of this chapter
544     does not apply and the superseded law applies; and
545          (d) a rule of construction or presumption provided in this chapter applies to an
546     instrument executed before May 9, 2017, unless there is a clear indication of a contrary intent
547     in the terms of the instrument.
548          (2) Except as otherwise provided in Subsections (1)(a) through (d), an action done
549     before May 9, 2017, is not affected by this chapter.
550          (3) If a right is acquired, extinguished, or barred on the expiration of a prescribed
551     period that commenced under law of this state other than this chapter before May 9, 2017, the
552     law continues to apply to the right.
553          Section 40. Repealer.
554          This bill repeals:
555          Section 75-2-608, Exercise of power of appointment.
556          Section 75-2-704, Power of appointment -- Meaning of specific reference
557     requirement.