Probate & Trust Law Section Conference Manual ... - Minnesota CLE

EXERCISING LIMITED TESTAMENTARY POWER OF APPOINTMENT TO APPOINT
IN TRUST
I have a limited testamentary power of appointment over the principal and all
accumulated income of the trust created for my benefit by under a certain Trust Agreement dated
January 1, 19XX, by and between JOHN A. DOE, as Settlor, and JANE S. DOE, as Trustee. In
specific exercise of such limited testamentary power of appointment, I hereby appoint all of the
principal and accumulated income remaining in such trust at my death to JAMES W. DOE, IN
TRUST, to be held, administered and distributed as provided in Article A of this Will; provided,
however, that any trust established and held pursuant to Article A (including any trust created
pursuant to the exercise of a power of appointment granted under Article A) shall terminate, if it has
not previously terminated, twenty-one (21) years after the death of the survivor of the issue of JOHN
A. DOE living on January 1, 19XX, and shall thereupon be distributed outright to such of the persons
to whom the Trustee is authorized to distribute the income from or the principal of the trust estate
immediately prior to the time specified in this paragraph and in the proportions as the Trustee, in the
exercise of the Trustee’s discretion, deems appropriate.
Comments
The specific reference to the trust instrument that granted the power is intended to comply with the
requirements of many grants of limited powers. (The requirement is usually included to avoid
controversy over whether a general residuary devise is intended to be an exercise of a power. Cf.
Minn. Stat. § 524.2-608).
The limitation on the duration of any trust created by the exercise of the power avoids inadvertently
triggering the Delaware tax trap.
33