4.1 The Maryland “General” Power

Maryland has a unique rule that holds that a “general” power of appointment is not really a general power of appointment unless it specifically provides that the donee of the power may appoint to his or her self, creditors, or the creditors of his or her estate.   Merely stating that one is granting a “general power of appointment” is insufficient.   Bryan v. U.S., 286 Md. 176 (1979) (a power designated “a general power of testamentary disposition” was held not to be a power to appoint to self, creditors, estate or creditors of estate and therefore did not qualify as a general power of appointment marital trust); Pierport v. Comm’n, 336 F. 2d 277 (1964) (no marital deduction under IRC § 2056); but see Guiney v. U.S., 425 F. 2d 145 (1970) (holding that a “general power of appointment” qualified for § 2056 treatment where the Will specifically stated it was a “general power” in order to qualify for the federal marital deduction).

Therefore, in order to create a general power of appointment in Maryland, the donor of the power must specify that the donee may appoint to his or her self, estate, creditors or creditors of his or her estate.