Do You Need a Trust to Protect Your Farm?
Like any good lawyer, the first answer is always, “It Depends.” However, before jumping into a Trust there are a lot of other options to consider.
First – let’s set some parameters for this discussion: if the value of all of your assets is more than the estate tax exemption (for 2023, that is $12.92M or $25.84M for a married couple), then effective planning can be much more complicated and beyond the scope of this article. For purposes of this article, we are assuming that your combined net worth is less than the exemption amount, so we can make use of several techniques that are relatively easy to implement.
Let’s (briefly) talk about the two primary kinds of trusts – Revocable and Irrevocable.
Like the name suggests, a Revocable Trust can be revoked or changed at the whim of the Settlor (the person who creates the trust – in this case, YOU). It is not “irrevocable” until your death. This is useful for easy transition to the next generation and avoids the somewhat time-consuming and cumbersome journey through Probate. It is fairly easy to set up, with the most complicated feature being remembering to put all (or almost all) of your assets into the Revocable Trust as you continue on your life journey.
If a Revocable Trust is a good idea for your planning, I don’t recommend putting your farm assets in the TRUST. Instead, I recommend creating a Limited Liability Company or other entity to hold the farm assets, and then your Revocable Trust can own the entity. The entity is free to continue farming as before, the “public-facing” entity is not a “trust” (more business-like appearance), and it is much easier to divide ownership shares between heirs than acres (or tractors).
A Revocable Trust does not save estate taxes, which is why you should seek other planning if you have a net worth in the Estate Tax Danger Zone (ETDZ).
An Irrevocable Trust cannot be revoked and has only limited ability to change. It is a completed “gift” of your assets to the Trust. Those assets must be appraised and a gift tax return filed, which will erode (reduce) your available estate tax exemption. Because I try to build as much flexibility as possible into my clients’ estate plans, this is not (typically) a good tool for folks not in the ETDZ.
There are other planning tools that might be easier to transfer assets to the next generation if your assets are not an active farm business. For example, if you cash rent all of your land (or farm on the shares), or for other assets like investment accounts, a “Transfer on Death” (TOD) ownership will retain 100% of ownership in your hands and control, but at your death, the asset automatically transfers to the named beneficiary. This technique works for any asset that does not already have a beneficiary designation (such as an IRA). TOD ownership can be used for real estate, investment accounts, automobiles, and anything with a “title” or “named” ownership. You can even use it for “non-titled” personal property, like artwork, furniture, and household goods, if you set it up correctly.
When you talk to your attorney, be sure that your advisor reviews the available options with you. If you go to an attorney and say “I want a Trust,” the attorney should spend some time reviewing other available options with you. If not, then please talk to another attorney. I have seen too many clients who have trusts that are not useful to the client’s estate planning goals – and some with harmful (with a tax burden or impact on family harmony) and unintended consequences. Be sure you understand the options and are comfortable that a Trust is right for you.