Code Section Group

Probate Code - PROB

DIVISION 2. GENERAL PROVISIONS [100 - 890]

  ( Division 2 enacted by Stats. 1990, Ch. 79. )

PART 14. POWERS OF APPOINTMENT [600 - 695]

  ( Part 14 added by Stats. 1992, Ch. 30, Sec. 2. )

CHAPTER 4. Exercise of Powers of Appointment [625 - 662]

  ( Chapter 4 added by Stats. 1992, Ch. 30, Sec. 2. )

ARTICLE 5. Contracts to Appoint; Releases [660 - 662]
  ( Article 5 added by Stats. 1992, Ch. 30, Sec. 2. )

660.
  

(a) The powerholder of a power of appointment that is presently exercisable, whether general or special, can contract to make an appointment to the same extent that the powerholder could make an effective appointment.

(b) The powerholder of a power of appointment cannot contract to make an appointment while the power of appointment is not presently exercisable. If a promise to make an appointment under such a power is not performed, the promisee cannot obtain either specific performance or damages, but the promisee is not prevented from obtaining restitution of the value given by the promisee for the promise.

(c) Unless the creating instrument expressly provides that the powerholder may not contract to make an appointment while the power of appointment is not presently exercisable, subdivision (b) does not apply to the case where the donor and the powerholder are the same person. In this case, the powerholder can contract to make an appointment to the same extent that the powerholder could make an effective appointment if the power of appointment were presently exercisable.

(Amended by Stats. 2016, Ch. 81, Sec. 14. (AB 2846) Effective January 1, 2017.)

661.
  

(a) Unless the creating instrument otherwise provides, a general or special power of appointment that is a discretionary power, whether testamentary or otherwise, may be released, either with or without consideration, by a written instrument signed by the powerholder and delivered as provided in subdivision (c).

(b) A releasable power may be released with respect to the whole or any part of the appointive property and may also be released in such manner as to reduce or limit the permissible appointees. No partial release of a power shall be deemed to make imperative the remaining power that was not imperative before the release unless the instrument of release expressly so provides. No release of a power that is not presently exercisable is permissible where the donor designated persons or a class to take in default of the powerholder’s exercise of the power unless the release serves to benefit all persons designated as provided by the donor.

(c) A release shall be delivered as follows:

(1) If the creating instrument specifies a person to whom a release is to be delivered, the release shall be delivered to that person, but delivery need not be made as provided in this paragraph if the person cannot with due diligence be found.

(2) In a case where the property to which the power relates is held by a trustee, the release shall be delivered to the trustee.

(3) In a case not covered by paragraph (1) or (2), the release may be delivered to any of the following:

(A) A person, other than the powerholder, who could be adversely affected by the exercise of the power.

(B) The county recorder of the county in which the powerholder resides or in which the deed, will, or other instrument creating the power is filed.

(d) A release of a power of appointment that affects real property or obligations secured by real property shall be acknowledged and proved, and may be certified and recorded, in like manner and with like effect as grants of real property, and all statutory provisions relating to the recordation or nonrecordation of conveyances of real property and to the effect thereof apply to a release with like effect, without regard to the date when the release was delivered, if at all, pursuant to subdivision (c). Failure to deliver, pursuant to subdivision (c), a release that is recorded pursuant to this subdivision does not affect the validity of any transaction with respect to the real property or obligation secured thereby, and the general laws of this state on recording and its effect govern the transaction.

(e) This section does not impair the validity of a release made before July 1, 1970.

(Amended by Stats. 2016, Ch. 81, Sec. 15. (AB 2846) Effective January 1, 2017.)

662.
  

(a) A release on behalf of a minor powerholder shall be made by the guardian of the estate of the minor pursuant to an order of court obtained under this section.

(b) The guardian or other interested person may file a petition with the court in which the guardianship of the estate proceeding is pending for an order of the court authorizing or requiring the guardian to release the ward’s powers as a powerholder or a power of appointment in whole or in part.

(c) Notice of the hearing on the petition shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1 of Division 4 to all of the following (other than the petitioner or persons joining in the petition):

(1) The persons required to be given notice under Chapter 3 (commencing with Section 1460) of Part 1 of Division 4.

(2) The donor of the power, if alive.

(3) The trustee, if the property to which the power relates is held by a trustee.

(4) Other persons as ordered by the court.

(d) After hearing, the court in its discretion may make an order authorizing or requiring the guardian to release on behalf of the ward a general or special power of appointment as permitted under Section 661, if the court determines, taking into consideration all the relevant circumstances, that the ward as a prudent person would make the release of the power of appointment if the ward had the capacity to do so.

(e) Nothing in this section imposes any duty on the guardian to file a petition under this section, and the guardian is not liable for failure to file a petition under this section.

(Amended by Stats. 2016, Ch. 81, Sec. 16. (AB 2846) Effective January 1, 2017.)

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