[Code of Federal Regulations]
[Title 26, Volume 14]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR20.2041-3]

[Page 331-336]
 
                       TITLE 26--INTERNAL REVENUE
 
    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)
 
PART 20_ESTATE TAX; ESTATES OF DECEDENTS DYING AFTER AUGUST 16, 
1954--Table of Contents
 
Sec.  20.2041-3  Powers of appointment created after October 21, 1942.

    (a) In general. (1) Property subject to a power of appointment 
created after October 21, 1942, is includable in the gross estate of the 
holder of the power under varying conditions depending on whether the 
power is (i) general in nature, (ii) possessed at death, or (iii) 
exercised or released. See paragraphs (b), (c), and (d) of Sec.  
20.2041-1 for the definition of various terms used in this section. See 
paragraph (c) of this section for the rules applicable to determine the 
extent to which joint powers created after October 21, 1942, are to be 
treated as general powers of appointment.
    (2) If the power is a general power of appointment, the value of an 
interest in property subject to such a power is includable in a 
decedent's gross estate under section 2041(a)(2) if either--
    (i) The decedent has the power at the time of his death (and the 
interest exists at the time of his death), or
    (ii) The decedent exercised or released the power, or the power 
lapsed, under the circumstances and to the extent described in paragraph 
(d) of this section.

[[Page 332]]

    (3) If the power is not a general power of appointment, the value of 
property subject to the power is includable in the holder's gross estate 
under section 2041(a)(3) only if it is exercised to create a further 
power under certain circumstances (see paragraph (e) of this section).
    (b) Existence of power at death. For purposes of section 2041(a)(2), 
a power of appointment is considered to exist on the date of a 
decedent's death even though the exercise of the power is subject to the 
precedent giving of notice, or even though the exercise of the power 
takes effect only on the expiration of a stated period after its 
exercise, whether or not on or before the decedent's death notice has 
been given or the power has been exercised. However, a power which by 
its terms is exercisable only upon the occurrence during the decedent's 
lifetime of an event or a contingency which did not in fact take place 
or occur during such time is not a power in existence on the date of the 
decedent's death. For example, if a decedent was given a general power 
of appointment exercisable only after he reached a certain age, only if 
he survived another person, or only if he died without descendants, the 
power would not be in existence on the date of the decedent's death if 
the condition precedent to its exercise had not occurred.
    (c) Joint powers created after October 21, 1942. The treatment of a 
power of appointment created after October 21, 1942, which is 
exercisable only in conjunction with another person is governed by 
section 2041(b)(1)(C), which provides as follows:
    (1) Such a power is not considered a general power of appointment if 
it is not exercisable by the decedent except with the consent or joinder 
of the creator of the power.
    (2) Such power is not considered a general power of appointment if 
it is not exercisable by the decedent except with the consent or joinder 
of a person having a substantial interest in the property subject to the 
power which is adverse to the exercise of the power in favor of the 
decedent, his estate, his creditors, or the creditors of his estate. An 
interest adverse to the exercise of a power is considered as substantial 
if its value in relation to the total value of the property subject to 
the power is not insignificant. For this purpose, the interest is to be 
valued in accordance with the actuarial principles set forth in Sec.  
20.2031-7 or, if it is not susceptible to valuation under those 
provisions, in accordance with the general principles set forth in Sec.  
20.2031-1. A taker in default of appointment under a power has an 
interest which is adverse to an exercise of the power. A coholder of the 
power has no adverse interest merely because of his joint possession of 
the power nor merely because he is a permissible appointee under a 
power. However, a coholder of a power is considered as having an adverse 
interest where he may possess the power after the decedent's death and 
may exercise it at that time in favor of himself, his estate, his 
creditors, or the creditors of his estate. Thus, for example, if X, Y, 
and Z held a power jointly to appoint among a group of persons which 
includes themselves and if on the death of X the power will pass to Y 
and Z jointly, then Y and Z are considered to have interests adverse to 
the exercise of the power in favor of X. Similarly, if on Y's death the 
power will pass to Z, Z is considered to have an interest adverse to the 
exercise of the power in favor of Y. The application of this 
subparagraph may be further illustrated by the following additional 
examples in each of which it is assumed that the value of the interest 
in question is substantial:

    Example (1). The decedent and R were trustees of a trust under the 
terms of which the income was to be paid to the decedent for life and 
then to M for life, and the remainder was to be paid to R. The trustees 
had power to distribute corpus to the decedent. Since R's interest was 
substantially adverse to an exercise of the power in favor of the 
decedent the latter did not have a general power of appointment. If M 
and the decedent were the trustees, M's interest would likewise have 
been adverse.
    Example (2). The decedent and L were trustees of a trust under the 
terms of which the income was to be paid to L for life and then to M for 
life, and the remainder was to be paid to the decedent. The trustees had 
power to distribute corpus to the decedent during L's life. Since L's 
interest was adverse to an exercise of the power in favor of the 
decedent, the decedent did not have a general power of appointment. If 
the decedent and M

[[Page 333]]

were the trustees, M's interest would likewise have been adverse.
    Example (3). The decedent and L were trustees of a trust under the 
terms of which the income was to be paid to L for life. The trustees 
could designate whether corpus was to be distributed to the decedent or 
to A after L's death. L's interest was not adverse to an exercise of the 
power in favor of the decedent, and the decedent therefore had a general 
power of appointment.

    (3) A power which is exercisable only in conjunction with another 
person, and which after application of the rules set forth in 
subparagraphs (1) and (2) of this paragraph constitutes a general power 
of appointment, will be treated as though the holders of the power who 
are permissible appointees of the property were joint owners of property 
subject to the power. The decedent, under this rule, will be treated as 
possessed of a general power of appointment over an aliquot share of the 
property to be determined with reference to the number of joint holders, 
including the decedent, who (or whose estates or creditors) are 
permissible appointees. Thus, for example, if X, Y, and Z hold an 
unlimited power jointly to appoint among a group of persons, including 
themselves, but on the death of X the power does not pass to Y and Z 
jointly, then Y and Z are not considered to have interests adverse to 
the exercise of the power in favor of X. In this case X is considered to 
possess a general power of appointment as to one-third of the property 
subject to the power.
    (d) Releases, lapses, and disclaimers of general powers of 
appointment. (1) Property subject to a general power of appointment 
created after October 21, 1942, is includable in the gross estate of a 
decedent under section 2041(a)(2) even though he does not have the power 
at the date of his death, if during his life he exercised or released 
the power under circumstances such that, if the property subject to the 
power had been owned and transferred by the decedent, the property would 
be includable in the decedent's gross estate under section 2035, 2036, 
2037, or 2038. Further, section 2041(b)(2) provides that the lapse of a 
power of appointment is considered to be a release of the power to the 
extent set forth in subparagraph (3) of this paragraph. A release of a 
power of appointment need not be formal or express in character. The 
principles set forth in Sec.  20.2041-2 for determining the application 
of the pertinent provisions of sections 2035 through 2038 to a 
particular exercise of a power of appointment are applicable for 
purposes of determining whether or not an exercise or release of a power 
of appointment created after October 21, 1942, causes the property to be 
included in a decedent's gross estate under section 2041(a)(2). If a 
general power of appointment created after October 21, 1942, is 
partially released, a subsequent exercise or release of the power under 
circumstances described in the first sentence of this subparagraph, or 
its possession at death will nevertheless cause the property subject to 
the power to be included in the gross estate of the holder of the power.
    (2) Section 2041(a)(2) is not applicable to the complete release of 
a general power of appointment created after October 21, 1942, whether 
exercisable during life or by will, if the release was not made in 
contemplation of death within the meaning of section 2035, and if after 
the release the holder of the power retained no interest in or control 
over the property subject to the power which would cause the property to 
be included in his gross estate under sections 2036 through 2038 if the 
property had been transferred by the holder.
    (3) The failure to exercise a power of appointment created after 
October 21, 1942, within a specified time, so that the power lapses, 
constitutes a release of the power. However, section 2041(b)(2) provides 
that such a lapse of a power of appointment during any calendar year 
during the decedent's life is treated as a release for purposes of 
inclusion of property in the gross estate under section 2041(a)(2) only 
to the extent that the property which could have been appointed by 
exercise of the lapsed power exceeds the greater of (i) $5,000 or (ii) 5 
percent of the aggregate value, at the time of the lapse, of the assets 
out of which, or the proceeds of which, the exercise of the lapsed power 
could have been satisfied. For example, assume that A transferred 
$200,000 worth of securities in trust providing for payment of income to 
B for life with remainder to B's issue. Assume

[[Page 334]]

further that B was given a noncumulative right to withdraw $10,000 a 
year from the principal of the trust fund (which neither increased nor 
decreased in value prior to B's death). In such case, the failure of B 
to exercise his right of withdrawal will not result in estate tax with 
respect to the power to withdraw $10,000 which lapses each year before 
the year of B's death. At B's death there will be included in his gross 
estate the $10,000 which he was entitled to withdraw for the year in 
which his death occurs less any amount which he may have taken during 
that year. However, if in the above example B had possessed the right to 
withdraw $15,000 of the principal annually, the failure to exercise such 
power in any year will be considered a release of the power to the 
extent of the excess of the amount subject to withdrawal over 5 percent 
of the trust fund (in this example, $5,000, assuming that the trust fund 
is worth $200,000 at the time of the lapse). Since each lapse is treated 
as though B had exercised dominion over the trust property by making a 
transfer of principal reserving the income therefrom for his life, the 
value of the trust property (but only to the extent of the excess of the 
amount subject to withdrawal over 5 percent of the trust fund) is 
includable in B's gross estate (unless before B's death he has disposed 
of his right to the income under circumstances to which sections 2035 
through 2038 would not be applicable). The extent to which the value of 
the trust property is included in the decedent's gross estate is 
determined as provided in subparagraph (4) of this paragraph.
    (4) The purpose of section 2041(b)(2) is to provide a determination, 
as of the date of the lapse of the power, of the proportion of the 
property over which the power lapsed which is an exempt disposition for 
estate tax purposes and the proportion which, if the other requirements 
of sections 2035 through 2038 are satisfied, will be considered as a 
taxable disposition. Once the taxable proportion of any disposition at 
the date of lapse has been determined, the valuation of that proportion 
as of the date of the decedent's death (or, if the executor has elected 
the alternate valuation method under section 2032, the value as of the 
date therein provided), is to be ascertained in accordance with the 
principles which are applicable to the valuation of transfers of 
property by the decedent under the corresponding provisions of sections 
2035 through 2038. For example, if the life beneficiary of a trust had a 
right exercisable only during one calendar year to draw down $50,000 
from the corpus of a trust, which he did not exercise, and if at the end 
of the year the corpus was worth $800,000, the taxable portion over 
which the power lapsed is $10,000 (the excess of $50,000 over 5 percent 
of the corpus), or \1/80\ of the total value. On the decedent's death, 
if the total value of the corpus of the trust (excluding income 
accumulated after the lapse of the power) on the applicable valuation 
date was $1,200,000, $15,000 (\1/80\ of $1,200,000) would be includable 
in the decedent's gross estate. However, if the total value was then 
$600,000, only $7,500 (\1/80\ of $600,000) would be includable.
    (5) If the failure to exercise a power, such as a right of 
withdrawal, occurs in more than a single year, the proportion of the 
property over which the power lapsed which is treated as a taxable 
disposition will be determined separately for each such year. The 
aggregate of the taxable proportions for all such years, valued in 
accordance with the above principles, will be includable in the gross 
estate by reason of the lapse. The includable amount, however, shall not 
exceed the aggregate value of the assets out of which, or the proceeds 
of which, the exercise of the power could have been satisfied, valued as 
of the date of the decedent's death (or, if the executor has elected the 
alternate valuation method under section 2032, the value as of the date 
therein provided).
    (6)(i) A disclaimer or renunciation of a general power of 
appointment created in a transfer made after December 31, 1976, is not 
considered to be the release of the power if the disclaimer or 
renunciation is a qualified disclaimer as described in section 2518 and 
the corresponding regulations. For rules relating to when the transfer 
creating the power occurs, see Sec.  25.2518-2(c)(3) of this chapter. If 
the disclaimer or renunciation is not a qualified disclaimer, it is

[[Page 335]]

considered a release of the power by the disclaimant.
    (ii) The disclaimer or renunication of a general power of 
appointment created in a taxable transfer before January 1, 1977, in the 
person disclaiming is not considered to be a release of the power. The 
disclaimer or renunciation must be unequivocal and effective under local 
law. A disclaimer is a complete and unqualified refusal to accept the 
rights to which one is entitled. There can be no disclaimer or 
renunciation of a power after its acceptance. In the absence of facts to 
the contrary, the failure to renounce or disclaim within a reasonable 
time after learning of its existence will be presumed to constitute an 
acceptance of the power. In any case where a power is purported to be 
disclaimed or renounced as to only a portion of the property subject to 
the power, the determination as to whether or not there has been a 
complete and unqualified refusal to accept the rights to which one is 
entitled will depend on all the facts and circumstances of the 
particular case, taking into account the recognition and effectiveness 
of such a disclaimer under local law. Such rights refer to the incidents 
of the power and not to other interests of the decedent in the property. 
If effective under local law, the power may be disclaimed or renounced 
without disclaiming or renouncing such other interests.
    (iii) The first and second sentences of paragraph (d)(6)(i) of this 
section are applicable for transfers creating the power to be disclaimed 
made on or after December 31, 1997.
    (e) Successive powers. (1) Property subject to a power of 
appointment created after October 21, 1942, which is not a general 
power, is includable in the gross estate of the holder of the power 
under section 2041(a)(3) if the power is exercised, and if both of the 
following conditions are met:
    (i) If the exercise is (a) by will, or (b) by a disposition which is 
of such nature that if it were a transfer of property owned by the 
decedent, the property would be includable in the decedent's gross 
estate under sections 2035 through 2037; and
    (ii) If the power is exercised by creating another power of 
appointment which, under the terms of the instruments creating and 
exercising the first power and under applicable local law, can be 
validly exercised so as to (a) postpone the vesting of any estate or 
interest in the property for a period ascertainable without regard to 
the date of the creation of the first power, or (b) (if the applicable 
rule against perpetuities is stated in terms of suspension of ownership 
or of the power of alienation, rather than of vesting) suspend the 
absolute ownership or the power of alienation of the property for a 
period ascertainable without regard to the date of the creation of the 
first power.
    (2) For purposes of the application of section 2041(a)(3), the value 
of the property subject to the second power of appointment is considered 
to be its value unreduced by any precedent or subsequent interest which 
is not subject to the second power. Thus, if a decedent has a power to 
appoint by will $100,000 to a group of persons consisting of his 
children and grandchildren and exercises the power by making an outright 
appointment of $75,000 and by giving one appointee a power to appoint 
$25,000, no more than $25,000 will be includable in the decedent's gross 
estate under section 2041(a)(3). If, however, the decedent appoints the 
income from the entire fund to a beneficiary for life with power in the 
beneficiary to appoint the remainder by will, the entire $100,000 will 
be includable in the decedent's gross estate under section 2041(a)(3) if 
the exercise of the second power can validly postpone the vesting of any 
estate or interest in the property or can suspend the absolute ownership 
or power of alienation of the property for a period ascertainable 
without regard to the date of the creation of the first power.
    (f) Examples. The application of this section may be further 
illustrated by the following examples, in each of which it is assumed, 
unless otherwise stated, that S has transferred property in trust after 
October 21, 1942, with the remainder payable to R at L's death, and that 
neither L nor R has any interest in or power over the enjoyment of the 
trust property except as is indicated separately in each example:

    Example (1). Income is directed to be paid to L during his lifetime 
at the end of each year, if living. L has an unrestricted power

[[Page 336]]

during his lifetime to cause the income to be distributed to any other 
person, but no power to cause it to be accumulated. At L's death, no 
part of the trust property is includable in L's gross estate since L had 
a power to dispose of only his income interest, a right otherwise 
possessed by him.
    Example (2). Income is directed to be accumulated during L's life 
but L has a noncumulative power to distribute $10,000 of each year's 
income to himself. Unless L's power is limited to himself. Unless L's 
power is limited by an ascertainable standard (relating to his health, 
etc.), as defined in paragraph (c)(2) of Sec.  20.2041-1, he has a 
general power of appointment over $10,000 of each year's income, the 
lapse of which may cause a portion of any income not distriibuted to be 
included in his gross estate under section 2041. See subparagraphs (3), 
(4), and (5) of paragraph (d) of this section. Thus, if the trust income 
during the year amounts to $20,000, L's failure to distribute any of the 
income to himself constitutes a lapse as to $5,000 (i.e., the amount by 
which $10,000 exceeds $5,000). If L's power were cumulative (i.e., if 
the power did not lapse at the end of each year but lapsed only by 
reason of L's death), the total accumulations which L chose not to 
distribute to himself immediately before his death would be includable 
in his gross estate under section 2041.
    Example (3). L is entitled to all the income during his lifetime and 
has an unrestricted power to cause corpus to be distributed to himself. 
L had a general power of appointment over the corpus of the trust, and 
the entire corpus as of the time of his death is includable in his gross 
estate under section 2041.
    Example (4). Income was payable to L during his lifetime. R has an 
unrestricted power to cause corpus to be distributed to L. R dies before 
L. In such case, R has only a power to dispose of his remainder 
interest, the value of which is includable in his gross estate under 
section 2033, and nothing in addition would be includable under section 
2041. If in this example R's remainder were contingent on his surviving 
L, nothing would be includable in his gross estate under either section 
2033 or 2041. While R would have a power of appointment, it would not be 
a general power.
    Example (5). Income was payable to L during his lifetime. R has an 
unrestricted power to cause corpus to be distributed to himself. R dies 
before L. While the value of R's remainder interest is includable in his 
gross estate under section 2033, R also has a general power of 
appointment over the entire trust corpus. Under such circumstances, the 
entire value of the trust corpus is includable in R's gross estate under 
section 2041.

[T.D. 6296, 23 FR 4529, June 24, 1958; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 8095, 51 FR 28367, Aug. 7, 1986; T.D. 8744, 62 FR 68184, 
Dec. 31, 1997]