Recently, I had the opportunity to contribute to the Farm Journal Legacy Project concerning family farm succession planning, a topic that is central to our firm. I am always delighted to have the opportunity to discuss this matter, as succession planning offers the opportunity to save hurt feelings, loss of the farm, and substantial money in taxes. The legacy of a family farm should be that of passing the farm to the next generation, not legal problems.
Fairness and Determining Who Should Inherit Assets
Succession planning offers the opportunity to have open and frank conversations about the desires of the next generation. Which children (if any) will want to work the farm? How can parents be fair in leaving a legacy to those children who don’t want to farm if their estate is comprised almost entirely of farm assets?
There are numerous ways that trusts and other legal agreements can be structured in order to provide fairness and a clear path of succession that will minimize hurt feelings and potential litigation. At the outset, it’s important to have conversations with all involved in order to understand each person’s interests so that a cohesive and fair plan can be developed.
Once the structure has been developed, the legal arrangements, including trusts and buy-sell agreements, can then be created. Because every family’s situation will be unique, their legal matters will also be unique. Ideally, when the time comes for the farm to pass to the next generation, the succession will be smooth, taxes will be minimized, and the farm will be protected.
Non-Family Successors and Purchase Rights
In some cases, succession may involve non-family successors and potential rights to purchase the farm. These issues can raise a number of questions, including:
- Who will have the right to purchase the farm? If there is more than one person, how are the purchase priorities resolved?
- How should the sale be effectuated and the value determined?
- What happens if the purchaser does not have the necessary cash available, and cannot secure adequate financing?
- Are there certain rights with respect to a farm that will continue to be provided to family members or others, such as certain usage rights?
These and many other issues should be carefully considered and addressed legally.
Keeping it in the Family
If not structured properly, there are number of circumstances that can cause a share of the farm (such as a beneficial trust interest) to potentially be owned by others outside the family. Two prominent examples are divorce and bankruptcy. I help clients understand these potential consequences and structure farm ownership in order to best protect families from these unintended consequences.
For more information about these matters and to read the Farm Journal article, please click here.