Farm Estate and Succession Planning
This blog focuses on making complex and difficult topics in estate and business planning understandable and applicable to the reader.
Family Limited Partnerships and Gifting - Q&A
Jan 09, 2012
Continuing with the previous posting, this information will address a variety of issues regarding the use of a family limited liability limited partnership (“FLLLP.”) Remember, every state has its own specific laws and every plan is different so it is crucial to make sure this fits your plan. Here are some answers to “practical” questions with using a FLLLP and gifting.
There is a potential benefit of a FLLLP from a gifting strategy standpoint. Once the FLLLP is established, you have the opportunity to begin a gifting strategy involving the land as an asset in the FLLLP and transfer it to your children. Gifting can occur in a variety of ways, but commonly it would work with each year Mom and dad gives limited partnership interests to your children up to the annual gifting amounts. It is also possible to use each of their unified credit amounts, depending on the strategy that works best. Again, as explained earlier, it is important to get an understanding of the latest laws regarding gifting and unified credit amounts, with respect to the newly enacted law, from your attorney.
The benefit of gifting in this entity is that you are able to use Minority and Marketability discounts to reduce the value of the gift, and ultimately give more of the assets. Because the limited partnership interest in the FLLLP lacks control (minority interest) and lacks free transferability (marketability), a discount can be obtained for the limited partnership with a qualified appraisal. Thus, more actual value is transferred through the gift on a discounted basis. The result is that whatever limited partnership interests Mom and dad give away during their lifetime reduces the value of their estates. Moreover, if Mom and dad still own any limited partnership interests at their death, those will also be subject to discounts in value, which reduce the size of the estate and therefore the amount of their estate tax liability. It is a tremendously effective gifting strategy, assuming you choose to implement it. There is no requirement to gift with this entity.
If you do decide to gift, there are some “practical questions” to be answered. The answers are as follows:
1. “Mom and dad” would always maintain their general partnership interests. As general partners, can decide to rent the land in the partnership to anyone they wanted.
· As long as you retain the general partnership ownership units, they have the control of who rents the farmland.
2. If your children owned a limited partnership interest in the FLLLP, they could also, as separate individual farmers, rent the land from the FLLLP.
3. Since mom and dad are General Partners, they have full control of the partnership. However, it is absolutely important that distributions from the profits of the partnership be made in a pro rata format, if gifting begins.
· For example, if Mom and dad own 80% of the limited partnership interests, and your children own 20%, then the distributions for that year would go 80% to Mom and dad, and 20% to your children.
o Because of this, it is crucial that Mom and dad are comfortable with their annual income abilities, and ensure that any gifting that is done is not to the detriment of their income needs.
4. What happens if 5 years down the family decides to dissolve the FLLLP. Further assume that by this time, Mom and dad own 50% of the Limited Partnership interests and remained General Partners. Further assume that your two children each own 25% respectively.
· In this example, all owners of the FLLLP would take their respective shares of the partnership, and as long as they didn’t sell their shares, it would be a non-taxable event.
· Remember, mom and dad have to be comfortable with the land being in their children’s individual names. If something happens to them (divorce, untimely death, etc.), what happens then is usually out of the control of mom and dad.
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