|Helena S. Mock, Esq.|
Estate Planning is a complex area of the law because it deals with so many different issues, from asset protection to taxation and almost everything in between. There are a variety of different legal strategies and tools that have been developed and are regularly used to assist in reducing the value of an estate for estate tax purposes while maintaining control and keeping the assets in the family.
One of these strategies is the use of the Family Limited Partnership (“FLP”) or Family Limited Liability Company (“FLLC”). With this strategy, a property owner can give away the underlying equity interest in an asset while still retaining managerial control over that asset. FLPs are most commonly used as vehicles for making gifts of interests in real estate and family-owned business interests. With an FLP, you title assets in the name of the FLP and then gift partnership interests in the FLP to others. It is like giving away pieces of a pie. However, because each piece is valued individually, the sum of the parts does not necessarily equal the whole. The fractional ownership of property by multiple individuals allows for the artificial “discounting” of the value of each individual’s share upon their deaths, thereby reducing estate taxes.
But why are discounts for these interests available? Very simply, it’s because no buyer would pay full price for a fractional interest in a closely-held FLP since profits are shared with the other partners, and the buyer may not have control over how the FLP is managed or when it will be dissolved or the assets sold. The overall value of the property is only artificially diluted by this process, however, because at any time, the partners can agree to dissolve the FLP, and upon termination of the partnership, the assets almost magically return to their full underlying value.
This can also be a way of giving interests in property to beneficiaries who may not yet have the ability to manage assets wisely. Since the FLP allows for centralized management, the individual owners of the separate interests have little to no say in management, development, or sale of partnership property. It is also more difficult for creditors to get at the assets when they are in the FLP than if they were held outright by the beneficiaries. In fact, many experts believe this one document has more important lawsuit and asset protection features than any other estate planning strategy. It can be the fortress protecting your hard-earned wealth.
The result of this strategy is that the family’s assets have greater protection from a personal judgment against any family member. If the limited partnership had not been used, all the family’s assets, including the business or property in the FLP, would have been lost. The laws protecting partnership assets from the reach of creditors of individual partners have been around for many years. In fact, these provisions date back to the English Partnership Act of 1890 and were later adopted by the Uniform Partnership Act which has been the law in America since the 1940s.
There is always the possibility that a judge may not like the fact that a legitimate creditor can’t get paid because of the partnership rules and may take it upon himself to find a way to satisfy the judgment. Perhaps in close cases, a judge may rule that the partnership was set up to defraud creditors and thereby ignore the protection. Or the legislature may decide to change the law. Several years ago, the IRS cracked down on this strategy; however, more recent cases have upheld FLPs as a viable estate planning strategy when they are properly structured and administered.
While FLPs and other advanced planning strategies may not be for everyone, they can be a good tool to minimize estate taxation and maximize asset protection. However, you should seek the advice of an experienced estate planning attorney in determining whether an FLP is appropriate for you and for assistance in setting up and administering the FLP.