§2041 Powers of Appointment

Summary

Count in the deceased person’s gross estate the value of property tied to certain "general powers of appointment." For powers made on or before October 21, 1942, the property is included only if the decedent actually used the power in a will or by a transfer that would be taxable under sections 2035–2038. Not using a power or fully giving it up does not count as using it. If an old power was partly released so it stopped being a general power, the right is not treated as a general power if the partial release happened before November 1, 1951, or within 6 months after a legal disability ended for someone who was disabled on October 21, 1942. For powers made after October 21, 1942, include the property if the decedent had a general power at death or had ever exercised or released it by a transfer that would be taxable under sections 2035–2038. A post‑1942 power counts at death even if the power needs notice or takes effect only after a set time. If the decedent used a post‑1942 power to create another power that can delay ownership or stop sale under local law, that property can also be included when the decedent used the first power by will or by a transfer taxable under sections 2035, 2036, or 2037. General power of appointment — a power that lets property be given to the decedent, the decedent’s estate, the decedent’s creditors, or the creditors of the decedent’s estate. Lapse of power — if a post‑1942 power lapses during the holder’s life, that lapse is treated as a release only for the amount that exceeded $5,000 or 5 percent of the assets that could have paid the appointment. Date of creation — a power in a will signed on or before October 21, 1942, counts as created on or before that date if the testator died before July 1, 1949 without republishing the will.