Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 21 (2017GS)

Sponsor

Rep. Snow, V. L.

Final action

Governor Signed 3/20/2017

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• addresses compliance with specific reference requirements;
• enacts the Uniform Powers of Appointment Act, including:
• general provisions, definitions, governing law, and the relationship of common law and principles of equity;
• providing for the creation, revocation, and amendment of the power of appointment;
• addressing the exercise of a power of appointment;
• addressing disclaimer or release and the contract to appoint or not appoint;
• addressing the rights of a powerholder's creditors in appointive property; and
• miscellaneous provisions; and
• makes technical and conforming amendments.

Every vote on this bill

Bill text

UNIFORM POWERS OF APPOINTMENT ACT
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: V. Lowry Snow
Senate Sponsor: 
Lyle W. Hillyard
LONG TITLE
General Description:
This bill modifies provisions related to powers of appointment.
Highlighted Provisions:
This bill:
▸ addresses compliance with specific reference requirements;
▸ enacts the Uniform Powers of Appointment Act, including:
• general provisions, definitions, governing law, and the relationship of common
law and principles of equity;
• providing for the creation, revocation, and amendment of the power of
appointment;
• addressing the exercise of a power of appointment;
• addressing disclaimer or release and the contract to appoint or not appoint;
• addressing the rights of a powerholder's creditors in appointive property; and
• miscellaneous provisions; and
▸ makes technical and conforming amendments.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
75-2-208
, as last amended by Laws of Utah 1999, Chapter 142
75-7-505
, as enacted by Laws of Utah 2004, Chapter 89
ENACTS:
75-10-101
, Utah Code Annotated 1953
75-10-102
, Utah Code Annotated 1953
75-10-103
, Utah Code Annotated 1953
75-10-104
, Utah Code Annotated 1953
75-10-201
, Utah Code Annotated 1953
75-10-202
, Utah Code Annotated 1953
75-10-203
, Utah Code Annotated 1953
75-10-204
, Utah Code Annotated 1953
75-10-205
, Utah Code Annotated 1953
75-10-206
, Utah Code Annotated 1953
75-10-301
, Utah Code Annotated 1953
75-10-302
, Utah Code Annotated 1953
75-10-303
, Utah Code Annotated 1953
75-10-304
, Utah Code Annotated 1953
75-10-305
, Utah Code Annotated 1953
75-10-306
, Utah Code Annotated 1953
75-10-307
, Utah Code Annotated 1953
75-10-308
, Utah Code Annotated 1953
75-10-309
, Utah Code Annotated 1953
75-10-310
, Utah Code Annotated 1953
75-10-311
, Utah Code Annotated 1953
75-10-312
, Utah Code Annotated 1953
75-10-313
, Utah Code Annotated 1953
75-10-314
, Utah Code Annotated 1953
75-10-401
, Utah Code Annotated 1953
75-10-402
, Utah Code Annotated 1953
75-10-403
, Utah Code Annotated 1953
75-10-404
, Utah Code Annotated 1953
75-10-405
, Utah Code Annotated 1953
75-10-406
, Utah Code Annotated 1953
75-10-407
, Utah Code Annotated 1953
75-10-501
, Utah Code Annotated 1953
75-10-502
, Utah Code Annotated 1953
75-10-503
, Utah Code Annotated 1953
75-10-601
, Utah Code Annotated 1953
75-10-602
, Utah Code Annotated 1953
75-10-603
, Utah Code Annotated 1953
REPEALS:
75-2-608
, as repealed and reenacted by Laws of Utah 1998, Chapter 39
75-2-704
, as enacted by Laws of Utah 1998, Chapter 39
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
75-2-208
 is amended to read:
75-2-208.
Exclusions, valuation, and overlapping application.
(1) The value of any separate property of the decedent or the decedent's surviving
spouse is excluded from the augmented estate even if it otherwise would be included in the
augmented estate under Sections 
75-2-204
, 
75-2-205
, 
75-2-206
, and 
75-2-207
. Property is
separate property if 
it was
:
(a) owned at the date of the most recent marriage of the decedent and the decedent's
surviving spouse;
(b) acquired by gift or disposition at death from a person other than the decedent or the
decedent's surviving spouse;
(c) subject to a presently exercisable power of appointment not created by the decedent
or the decedent's spouse that is exempt under Section 
75-10-502
;
[
(c)
] 
(d)
 acquired in exchange for or with the proceeds of other separate property;
[
(d)
] 
(e)
 designated as separate property by written waiver under Section 
75-2-213
; or
[
(e)
] 
(f)
 acquired as a recovery for personal injury but only to the extent attributable to
expenses paid or otherwise satisfied from separate property.
(2) Income attributable to investment, rental, licensing or other use of separate property
during the most recent marriage of the decedent and the decedent's surviving spouse is separate
property.
(3) Appreciation in the value of separate property during the most recent marriage of
the decedent and the decedent's surviving spouse is separate property.
(4) Except as provided in this Subsection (4), any increase in the value of separate
property due to improvements to or the reduction in debt owed against separate property during
the most recent marriage of the decedent and the decedent's surviving spouse is separate
property. An amount equal to any payment for improvements to or the reduction in debt owed
against separate property of the decedent made during the most recent marriage of the decedent
and the decedent's surviving spouse from the joint or commingled funds of the decedent and
the decedent's surviving spouse, or from the separate property of the surviving spouse, shall not
be separate property to the extent of the amount actually paid for the improvements or the
amount actually paid for the reduction in debt, including principal, interest, and other payments
under the note, owed against separate property. The amount that is determined not to be
separate property may not exceed the value of the separate property.
(5) All property of the decedent or the decedent's surviving spouse, whether or not
commingled, is rebuttably presumed not to be separate property.
(6) The value of any property is excluded from the decedent's nonprobate transfers to
others:
(a) to the extent the decedent received adequate and full consideration in money or
money's worth for a transfer of the property; or
(b) if the property was transferred with the written joinder of, or if the transfer was
consented to in writing by, the surviving spouse.
(7) The value of property:
(a) included in the augmented estate under Section 
75-2-205
, 
75-2-206
, or 
75-2-207
 is
reduced in each category by enforceable claims against the included property; and
(b) includes the commuted value of any present or future interest and the commuted
value of amounts payable under any trust, life insurance settlement option, annuity contract,
public or private pension, disability compensation, death benefit or retirement plan, or any
similar arrangement, exclusive of the federal Social Security system.
(8) In case of overlapping application to the same property of the section or subsections
of Section 
75-2-205
, 
75-2-206
, or 
75-2-207
, the property is included in the augmented estate
under the provision yielding the greatest value, and under only one overlapping provision if
they all yield the same value.
Section 2. Section 
75-7-505
 is amended to read:
75-7-505.
Creditor's claim against settlor.
[
(1)
] Whether or not the terms of a trust contain a spendthrift provision, the following
rules apply:
[
(a)
] 
(1)
 During the lifetime of the settlor, the property of a revocable trust is subject to
the claims of the settlor's creditors. If a trust has more than one settlor, the amount the creditor
or assignee of a particular settlor may reach may not exceed the settlor's interest in the portion
of the trust attributable to that settlor's contribution.
[
(b)
] 
(2)
 With respect to an irrevocable trust other than an irrevocable trust that meets
the requirements of Section 
25-6-14
, a creditor or assignee of the settlor may reach the
maximum amount that can be distributed to or for the settlor's benefit. If the trust has more
than one settlor, the amount the creditor or assignee of a particular settlor may reach may not
exceed the settlor's interest in the portion of the trust attributable to that settlor's contribution.
[
(c)
] 
(3)
 After the death of a settlor, and subject to the settlor's right to direct the source
from which liabilities will be paid, the property of a trust that was revocable at the settlor's
death, but not property received by the trust as a result of the death of the settlor which is
otherwise exempt from the claims of the settlor's creditors, is subject to claims of the settlor's
creditors, costs of administration of the settlor's estate, the expenses of the settlor's funeral and
disposal of remains, and statutory allowances to a surviving spouse and children to the extent
the settlor's probate estate is inadequate to satisfy those claims, costs, expenses, and
allowances.
[
(2) For purposes of this section:
]
[
(a) during the period the power may be exercised, the holder of a power of withdrawal
is treated in the same manner as the settlor of a revocable trust to the extent of the property
subject to the power; and
]
[
(b) upon the lapse, release, or waiver of the power, the holder is treated as the settlor
of the trust only to the extent the value of the property affected by the lapse, release, or waiver
exceeds the greater of the amount specified in Subsection 2041(b)(2), 2514(e), or Section
2503(b) of the Internal Revenue Code of 1986, in each case as in effect on May 1, 2004.
]
Section 3. Section 
75-10-101
 is enacted to read:
CHAPTER 10. UNIFORM POWERS OF APPOINTMENT ACT
Part 1. General Provisions
 75-10-101.
Title.
This chapter is known as the "Uniform Powers of Appointment Act."
Section 4. Section 
75-10-102
 is enacted to read:
 75-10-102.
Definitions.
As used in this chapter:
(1) "Appointee" means a person to which a powerholder makes an appointment of
appointive property.
(2) "Appointive property" means the property or property interest subject to a power of
appointment.
(3) "Blanket-exercise clause" means a clause in an instrument that exercises a power of
appointment and is not a specific-exercise clause. The term includes a clause that:
(a) expressly uses the words "any power" in exercising any power of appointment the
powerholder has;
(b) expressly uses the words "any property" in appointing any property over which the
powerholder has a power of appointment; or
(c) disposes of all property subject to disposition by the powerholder.
(4) "Donor" means a person that creates a power of appointment.
(5) "Exclusionary power of appointment" means a power of appointment exercisable in
favor of any one or more of the permissible appointees to the exclusion of the other permissible
appointees.
(6) "General power of appointment" means a power of appointment exercisable in
favor of the powerholder, the powerholder's estate, a creditor of the powerholder, or a creditor
of the powerholder's estate.
(7) "Gift-in-default clause" means a clause identifying a taker in default of
appointment.
(8) "Impermissible appointee" means a person that is not a permissible appointee.
(9) "Instrument" means a record.
(10) "Nongeneral power of appointment" means a power of appointment that is not a
general power of appointment. The terms "special power of appointment," "limited power of
appointment," or similar terminology used in an instrument creating a power that does not grant
powers making it a general power of appointment as defined in this chapter mean the same as
and may be used interchangeably with the term nongeneral power of appointment. 
(11) "Permissible appointee" means a person in whose favor a powerholder may
exercise a power of appointment.
(12) "Person" means an individual, estate, trust, business or nonprofit entity, public
corporation, government or governmental subdivision, agency, instrumentality, or other legal
entity.
(13) "Powerholder" means a person in whom a donor creates a power of appointment.
(14) "Power of appointment" means a power that enables a powerholder acting in a
nonfiduciary capacity to designate a recipient of an interest in, or another power of appointment
over, the appointive property. The term does not include a power of attorney.
(15) "Presently exercisable power of appointment" means a power of appointment
exercisable by the powerholder at a relevant time. The term:
(a) includes a power of appointment not exercisable until the occurrence of a specified
event, the satisfaction of an ascertainable standard, or the passage of a specified time only after:
(i) the occurrence of the specified event;
(ii) the satisfaction of the ascertainable standard; or
(iii) the passage of the specified time; and
(b) does not include a power exercisable only at the powerholder's death.
(16) "Record" means information that is inscribed on a tangible medium or that is
stored in an electronic or other medium and is retrievable in perceivable form.
(17) "Specific-exercise clause" means a clause in an instrument that specifically refers
to and exercises a particular power of appointment.
(18) "Taker in default of appointment" means a person that takes all or part of the
appointive property to the extent the powerholder does not effectively exercise the power of
appointment.
(19) "Terms of the instrument" means the manifestation of the intent of the maker of
the instrument regarding the instrument's provisions as expressed in the instrument or as may
be established by other evidence that would be admissible in a legal proceeding.
Section 5. Section 
75-10-103
 is enacted to read:
 75-10-103.
Governing law.
(1) Unless the terms of the instrument creating a power of appointment manifest a
contrary intent:
(a) the creation, revocation, amendment, interpretation and definition of terms, or the
determination of the rights of the appointee of the power is governed by the law of the donor's
domicile at the relevant time; and
(b) the formalities for the exercise, release, or disclaimer of the power, or the
revocation or amendment of the exercise, release, or disclaimer of the power is governed by the
law of the powerholder's state of domicile at the relevant time.
(2) The law of the powerholder's state of domicile may not govern the interpretation
and definition of terms, or the determination of the rights of the appointee of the power, which
shall be governed by the law of the donor's domicile at the relevant time.
(3) Claims of creditors, including creditor claims regarding a power not created by a
powerholder as set forth in Section 
75-10-502
, and other parties claiming an interest in
property or rights subject to a power will be governed by the laws of the donor's domicile at the
time of the creation of the power and not the powerholder's state of domicile either at the time
of the creation of the power or at the time of exercise of the power.
Section 6. Section 
75-10-104
 is enacted to read:
 75-10-104.
Common law and principles of equity.
The common law and principles of equity supplement this chapter, except to the extent
modified by this chapter or laws of this state other than this chapter.
Section 7. Section 
75-10-201
 is enacted to read:
Part 2. Creation, Revocation, and Amendment of Power of Appointment
 75-10-201.
Creation of power of appointment.
(1) A power of appointment is created only if:
(a) the instrument creating the power:
(i) is valid under applicable law; and
(ii) except as otherwise provided in Subsection (2), transfers the appointive property;
and
(b) the terms of the instrument creating the power manifest the donor's intent to create
in a powerholder a power of appointment over the appointive property exercisable in favor of a
permissible appointee.
(2) Subsection (1)(a)(ii) does not apply to the creation of a power of appointment by
the exercise of a power of appointment.
(3) A power of appointment may not be created in a deceased individual.
(4) Subject to an applicable rule against perpetuities, a power of appointment may be
created in an unborn or unascertained powerholder.
Section 8. Section 
75-10-202
 is enacted to read:
 75-10-202.
Nontransferability.
A powerholder may not transfer a power of appointment. If a powerholder dies without
exercising or releasing a power, the power lapses.
Section 9. Section 
75-10-203
 is enacted to read:
 75-10-203.
Presumption of unlimited authority.
Subject to Section 
75-10-205
, and unless the terms of the instrument creating a power
of appointment manifest a contrary intent, the power is:
(1) presently exercisable;
(2) exclusionary; and
(3) except as otherwise provided in Section 
75-10-204
, general.
Section 10. Section 
75-10-204
 is enacted to read:
 75-10-204.
Exception to presumption of unlimited authority.
Unless the terms of the instrument creating a power of appointment manifest a contrary
intent, the power is nongeneral if:
(1) the power is exercisable only at the powerholder's death; and
(2) the permissible appointees of the power are a defined and limited class that does
not include the powerholder's estate, the powerholder's creditors, or the creditors of the
powerholder's estate.
Section 11. Section 
75-10-205
 is enacted to read:
 75-10-205.
Rules of classification.
(1) In this section, "adverse party" means a person with a substantial beneficial interest
in property that would be affected adversely by a powerholder's exercise or nonexercise of a
power of appointment in favor of the powerholder, the powerholder's estate, a creditor of the
powerholder, or a creditor of the powerholder's estate.
(2) If a powerholder may exercise a power of appointment only with the consent or
joinder of an adverse party, the power is nongeneral.
(3) If the permissible appointees of a power of appointment are not defined and
limited, the power is exclusionary.
Section 12. Section 
75-10-206
 is enacted to read:
 75-10-206.
Donor's power to revoke or amend.
A donor may revoke or amend a power of appointment unless or to the extent the
instrument creating the power is made irrevocable by the donor or the exercise of a presently
exercisable power has been irrevocably made or effected.
Section 13. Section 
75-10-301
 is enacted to read:
Part 3. Exercise of Power of Appointment
 75-10-301.
Requisites for exercise of power of appointment.
A power of appointment is exercised only:
(1) if the instrument exercising the power is valid under applicable law;
(2) if the terms of the instrument exercising the power:
(a) manifest the powerholder's intent to exercise the power; and
(b) satisfy the requirements of exercise, if any, imposed by the donor; and
(3) to the extent the appointment is a permissible exercise of the power.
Section 14. Section 
75-10-302
 is enacted to read:
 75-10-302.
Intent to exercise -- Determining intent from residuary clause.
(1) As used in this section:
(a) "Residuary clause" does not include a residuary clause containing a
blanket-exercise clause or a specific-exercise clause.
(b) "Will" includes a codicil and a testamentary instrument that revises another will.
(2) A residuary clause in a powerholder's will, or a comparable clause in the
powerholder's revocable trust, manifests the powerholder's intent to exercise a power of
appointment only if:
(a) the terms of the instrument containing the residuary clause do not manifest a
contrary intent;
(b) the power is a general power exercisable in favor of the powerholder's estate;
(c) there is no gift-in-default clause or the clause is ineffective; and
(d) the powerholder did not release the power.
Section 15. Section 
75-10-303
 is enacted to read:
 75-10-303.
Intent to exercise -- After-acquired power.
Unless the terms of the instrument exercising a power of appointment manifest a
contrary intent:
(1) except as otherwise provided in Subsection (2), a blanket-exercise clause extends to
a power acquired by the powerholder after executing the instrument containing the clause; and
(2) if the powerholder is also the donor of the power, the clause does not extend to the
power unless there is no gift-in-default clause or the gift-in-default clause is ineffective.
Section 16. Section 
75-10-304
 is enacted to read:
 75-10-304.
Compliance with donor-imposed formal requirements.
(1) A powerholder's compliance with formal requirements of appointment imposed by
the donor is sufficient only if the powerholder substantially complies with the conditions,
requirements, and formalities set forth in the power of appointment, including complying with
all the requirements for making specific reference to the power, that the power shall be
exercised in a specific document such as a will, or that the document exercising the power shall
be witnessed or notarized. If the donor limited the powerholder's exercise to a validly executed
will, substantial compliance may not include the exercise of the power by a trust or another
document not meeting the requirements of a properly executed will.
(2) Unless required by the instrument creating the power, the probate of a properly
executed will is not required for the exercise of a power to be valid and complete.
Section 17. Section 
75-10-305
 is enacted to read:
 75-10-305.
Permissible appointment.
(1) A powerholder of a general power of appointment that permits appointment to the
powerholder or the powerholder's estate may make any appointment, including an appointment
in trust or creating a new power of appointment, that the powerholder could make in disposing
of the powerholder's own property.
(2) A powerholder of a general power of appointment that permits appointment only to
the creditors of the powerholder or of the powerholder's estate may appoint only to those
creditors.
(3) Unless the terms of the instrument creating a power of appointment manifest a
contrary intent, the powerholder of a nongeneral power may:
(a) make an appointment in any form, including an appointment in trust, in favor of a
permissible appointee;
(b) create a general power in a permissible appointee; or
(c) create a nongeneral power in any person to appoint one or more of the permissible
appointees of the original nongeneral power.
Section 18. Section 
75-10-306
 is enacted to read:
 75-10-306.
Appointment to deceased appointee or permissible appointee's
descendant.
(1) Subject to Sections 
75-2-603
 and 
75-2-604
, an appointment to a deceased appointee
is ineffective.
(2) Unless the terms of the instrument creating a power of appointment manifest a
contrary intent, a powerholder of a nongeneral power may exercise the power in favor of, or
create a new power of appointment in, a descendant of a deceased permissible appointee
whether or not the descendant is described by the donor as a permissible appointee.
Section 19. Section 
75-10-307
 is enacted to read:
 75-10-307.
Impermissible appointment.
(1) Except as otherwise provided in Section 
75-10-306
, an exercise of a power of
appointment in favor of an impermissible appointee is ineffective.
(2) An exercise of a power of appointment in favor of a permissible appointee is
ineffective to the extent the appointment is a fraud on the power.
Section 20. Section 
75-10-308
 is enacted to read:
 75-10-308.
Elective allocation doctrine.
If a powerholder exercises a power of appointment in a disposition that also disposes of
property the powerholder owns, the owned property and the appointive property shall be
allocated in the permissible manner that best carries out the powerholder's intent.
Section 21. Section 
75-10-309
 is enacted to read:
 75-10-309.
Capture doctrine -- Disposition of ineffectively appointed property
under general power.
To the extent a powerholder of a general power of appointment, other than a power to
withdraw property from, revoke, or amend a trust, makes an ineffective appointment:
(1) the gift-in-default clause controls the disposition of the ineffectively appointed
property; or
(2) if there is no gift-in-default clause or to the extent the clause is ineffective, the
ineffectively appointed property:
(a) passes to:
(i) the powerholder if the powerholder is a permissible appointee and is living; or
(ii) if the powerholder is an impermissible appointee or is deceased, the powerholder's
estate if the estate is a permissible appointee; or
(b) if there is no taker under Subsection (2)(a), passes under a reversionary interest to
the donor or the donor's transferee or successor in interest.
Section 22. Section 
75-10-310
 is enacted to read:
 75-10-310.
Disposition of unappointed property under released or unexercised
general power.
To the extent a powerholder releases or fails to exercise a general power of appointment
other than a power to withdraw property from, revoke, or amend a trust:
(1) the gift-in-default clause controls the disposition of the unappointed property; or
(2) if there is no gift-in-default clause or to the extent the clause is ineffective:
(a) except as otherwise provided in Subsection (2)(b), the unappointed property passes
to:
(i) the powerholder if the powerholder is a permissible appointee and is living; or
(ii) if the powerholder is an impermissible appointee or is deceased, the powerholder's
estate if the estate is a permissible appointee; or
(b) to the extent the powerholder released the power, or if there is no taker under
Subsection (2)(a), the unappointed property passes under a reversionary interest to the donor or
the donor's transferee or successor in interest.
Section 23. Section 
75-10-311
 is enacted to read:
 75-10-311.
Disposition of unappointed property under released or unexercised
nongeneral power.
To the extent a powerholder releases, ineffectively exercises, or fails to exercise a
nongeneral power of appointment:
(1) the gift-in-default clause controls the disposition of the unappointed property; or
(2) if there is no gift-in-default clause or to the extent the clause is ineffective, the
unappointed property:
(a) passes to the permissible appointees if:
(i) the permissible appointees are defined and limited; and
(ii) the terms of the instrument creating the power do not manifest a contrary intent; or
(b) if there is no taker under Subsection (2)(a), passes under a reversionary interest to
the donor or the donor's transferee or successor in interest.
Section 24. Section 
75-10-312
 is enacted to read:
 75-10-312.
Disposition of unappointed property if partial appointment to taker in
default.
Unless the terms of the instrument creating or exercising a power of appointment
manifest a contrary intent, if the powerholder makes a valid partial appointment to a taker in
default of appointment, the taker in default of appointment may share fully in unappointed
property.
Section 25. Section 
75-10-313
 is enacted to read:
 75-10-313.
Appointment to taker in default.
If a powerholder makes an appointment to a taker in default of appointment and the
appointee would have taken the property under a gift-in-default clause had the property not
been appointed, the power of appointment is considered not to have been exercised and the
appointee takes under the clause.
Section 26. Section 
75-10-314
 is enacted to read:
 75-10-314.
Powerholder's authority to revoke or amend exercise.
Unless the terms of the instrument creating the power of appointment or the instrument
exercising the power of appointment provide that the exercise is irrevocable or unamendable, a
powerholder may revoke or amend an exercise of a power of appointment made by an
instrument effective during the life of the powerholder where the exercise is to become
effective at some future time or contingency and where that future time and contingency has
not yet occurred, as long as the revocation or amendment is done with the same formality as the
original exercise of the power of appointment.
Section 27. Section 
75-10-401
 is enacted to read:
Part 4. Disclaimer or Release - Contract to Appoint or Not to Appoint
 75-10-401.
Disclaimer.
As provided by Section 
75-2-801
:
(1) A powerholder may disclaim all or part of a power of appointment.
(2) A permissible appointee, an appointee, or a taker in default of appointment may
disclaim all or part of an interest in appointive property.
Section 28. Section 
75-10-402
 is enacted to read:
 75-10-402.
Authority to release.
A powerholder may release a power of appointment, in whole or in part, except to the
extent the terms of the instrument creating the power prevent the release.
Section 29. Section 
75-10-403
 is enacted to read:
 75-10-403.
Method of release.
A powerholder of a releasable power of appointment may release the power in whole or
in part:
(1) by substantial compliance with a method provided in the terms of the instrument
creating the power; or
(2) if the terms of the instrument creating the power do not provide a method or the
method provided in the terms of the instrument is not expressly made exclusive, by a record
manifesting the powerholder's intent by clear and convincing evidence.
Section 30. Section 
75-10-404
 is enacted to read:
 75-10-404.
Revocation or amendment of release.
A powerholder may revoke or amend a release of a power of appointment only to the
extent that:
(1) the instrument of release is revocable by the powerholder; or
(2) the powerholder reserves a power of revocation or amendment in the instrument of
release.
Section 31. Section 
75-10-405
 is enacted to read:
 75-10-405.
Power to contract -- Presently exercisable power of appointment.
A powerholder of a presently exercisable power of appointment may contract:
(1) not to exercise the power; or
(2) to exercise the power if the contract when made does not confer a benefit on an
impermissible appointee.
Section 32. Section 
75-10-406
 is enacted to read:
 75-10-406.
Power to contract -- Power of appointment not presently exercisable.
A powerholder of a power of appointment that is not presently exercisable may contract
to exercise or not to exercise the power only if the powerholder:
(1) is also the donor of the power; and
(2) has reserved the power in a revocable trust.
Section 33. Section 
75-10-407
 is enacted to read:
 75-10-407.
Remedy for breach of contract to appoint or not to appoint.
The remedy for a powerholder's breach of a contract to appoint or not to appoint
appointive property is limited to damages payable out of the appointive property or, if
appropriate, specific performance of the contract.
Section 34. Section 
75-10-501
 is enacted to read:
Part 5. Rights of Powerholder's Creditors in Appointive Property
 75-10-501.
Creditor claim -- General power created by powerholder.
(1) In this section, "power of appointment created by the powerholder" includes a
power of appointment created in a transfer by another person to the extent the powerholder
contributed value to the transfer.
(2) Appointive property subject to a general power of appointment created by the
powerholder is subject to a claim of a creditor of the powerholder or of the powerholder's estate
to the extent provided in Title 25, Chapter 6, Uniform Fraudulent Transfer Act.
(3) Subject to Subsection (2), appointive property subject to a general power of
appointment created by the powerholder is not subject to a claim of a creditor of the
powerholder or the powerholder's estate to the extent the powerholder irrevocably appointed
the property in favor of a person other than the powerholder or the powerholder's estate.
(4) Subject to Subsections (2) and (3), and notwithstanding the presence of a
spendthrift provision or whether the claim arose before or after the creation of the power of
appointment, appointive property subject to a general power of appointment created by the
powerholder is subject to a claim of a creditor of:
(a) the powerholder, to the same extent as if the powerholder owned the appointive
property, if the power is presently exercisable; and
(b) the powerholder's estate, to the extent the estate is insufficient to satisfy the claim
and subject to the right of a decedent to direct the source from which liabilities are paid, if the
power is exercisable at the powerholder's death.
Section 35. Section 
75-10-502
 is enacted to read:
 75-10-502.
Creditor claim -- Power not created by powerholder.
(1) The property subject to a general or a nongeneral power of appointment not created
by the powerholder, including a presently exercisable general or nongeneral power of
appointment, is exempt from a claim of a creditor of the powerholder or the powerholder's
estate. The powerholder of such a power may not be compelled to exercise the power and the
powerholder's creditors may not acquire the power, any rights thereto, or reach the trust
property or beneficial interests by any other means. A court may not exercise or require the
powerholder to exercise the power of appointment.
(2) As set forth in Section 
75-10-103
, the law of the donor's domicile at the time of
creation shall govern claims of creditors and other parties claiming an interest in property or
rights subject to a power of appointment.
Section 36. Section 
75-10-503
 is enacted to read:
 75-10-503.
Power to withdraw.
(1) For purposes of this part, and except as otherwise provided in Subsection (2), a
power to withdraw property from a trust is treated, during the time the power may be exercised,
as a presently exercisable general power of appointment to the extent of the property subject to
the power to withdraw.
(2) On the lapse, release, or waiver of a power to withdraw property from a trust, the
power is treated as a presently exercisable general power of appointment only to the extent the
value of the property affected by the lapse, release, or waiver exceeds the greater of the amount
specified in 26 U.S.C. Sec. 2041(b)(2) and 26 U.S.C. Sec. 2514(e) or the amount specified in
U.S.C. Sec. 2503(b).
Section 37. Section 
75-10-601
 is enacted to read:
Part 6. Miscellaneous Provisions
 75-10-601.
Uniformity of application and construction.
In applying and construing this uniform act, consideration shall be given to the need to
promote uniformity of the law with respect to its subject matter among states that enact it.
Section 38. Section 
75-10-602
 is enacted to read:
 75-10-602.
Relation to Electronic Signatures in Global and National Commerce
Act.
This chapter modifies, limits, or supersedes the Electronic Signatures in Global and
National Commerce Act, 15 U.S.C. Sec. 7001 et seq., but does not modify, limit, or supersede
Section 101(c) of that act, 15 U.S.C. Sec. 7001(c), or authorize electronic delivery of any of the
notices described in Section 103(b) of that act, 15 U.S.C. Sec. 7003(b).
Section 39. Section 
75-10-603
 is enacted to read:
 75-10-603.
Application to existing relationships.
(1) Except as otherwise provided in this chapter, on and after May 9, 2017:
(a) this chapter applies to a power of appointment created before, on, or after May 9,
2017;
(b) this chapter applies to a judicial proceeding concerning a power of appointment
commenced on or after May 9, 2017;
(c) this chapter applies to a judicial proceeding concerning a power of appointment
commenced before May 9, 2017, unless the court finds that application of a particular
provision of this chapter would interfere substantially with the effective conduct of the judicial
proceeding or prejudice a right of a party, in which case the particular provision of this chapter
does not apply and the superseded law applies; and
(d) a rule of construction or presumption provided in this chapter applies to an
instrument executed before May 9, 2017, unless there is a clear indication of a contrary intent
in the terms of the instrument.
(2) Except as otherwise provided in Subsections (1)(a) through (d), an action done
before May 9, 2017, is not affected by this chapter.
(3) If a right is acquired, extinguished, or barred on the expiration of a prescribed
period that commenced under law of this state other than this chapter before May 9, 2017, the
law continues to apply to the right.
Section 40. 
Repealer.
This bill repeals:
Section 
75-2-608
,
Exercise of power of appointment.
Section 
75-2-704
,
Power of appointment -- Meaning of specific reference
requirement.