Make a Strong Devise “Downton Abbey” and Pride and Prejudice each are stories besieged by the perils of a now-abolished type of gift in land called the fee tail. A fee tail is created by making a gift of land “to John Doe and the heirs of his body.” This creates a dynamic where the current holder of land only has a life estate – the ability to control the land and its income for their lifetime but has no ability to sell the underlying land itself – and then at that person’s death decedents inherit the land for their lifetime. The design of this model was to keep large estates in the primary line of succession. As is obvious in both “Downton Abbey” and Pride and Prejudice, the livelihood of a family with only daughters is imperiled if their father dies without a male heir – the land and home of the spouse and daughters can be lost to a distant relative, leaving the female members of the family without a place to live or income to live on.
Today fee tails are abolished almost everywhere because of this exact problem. However, people continue to make weak distributions of their property which have similar unfortunate effects. Giving someone a life estate only prevents that person from selling the property – if they don’t want to live on the land, this devise is essentially a gift of real estate taxes. Other times people make gifts of a fraction of an estate – to each of 7 brothers and sisters equally. Because each new owner only has a 1/7 interest, their ability to control the property is extremely limited. Fractured estates with mineral rights in the West have been such a problem that laws were enacted to determine how such fractured interests would be controlled, resulting in meetings like shareholder meetings of a Fortune 500 company to vote on how to act. Instead of these types of gifts, we often advise people to make a “gift in fee” or each piece of property to one or two people, and then another piece of property to someone else, rather than making all the property subject to small fractional ownership shares. Alternatively, the entire decedents estate could be left to a trustee to manage for the benefit of many owners – that trustee could then sell or keep properties, or sell property to one of the beneficiaries giving the cash to the other beneficiaries.
Unexpected Deaths Downton has a lot of unexpected deaths and bouts of sickness disabling important characters. Although there is no way to prevent these types of events, people can plan for the unexpected to avoid a loss of control. Powers of attorney allow someone else to transact your financial affairs if you are unable to do so yourself. You can also create a healthcare directive (also called a living will) to allow someone to make healthcare decisions on your behalf, if you are unable to do so on your own.
Succession Planning Small businesses, especially farms, are typically passed from generation to generation. However, small businesses are often created by a founder with one set of skills and talents and the subsequent generation often lacks that same skill set and mentality. Think for a moment about a 3rd generation cattle farmer who is to leave the farm to his son, a college graduate with a computer science degree. While each is hardworking, their skills and talents are incompatible.
Similarly, businesses often are created by friends but without planning can result in unforeseen consequences and unwanted partnerships. Business-founder friends often have spouses. If one friend divorces his spouse, or dies leaving the business stock to that spouse, the remaining business-founder could become business partners with the original founder-friend, and/or that friend’s spouse, based on the division of the business stock in a divorce order or will. Perhaps that would work out, but most people do not want to be business partners with the now divorced or widowed spouse of their friend – that could make for awkward and unproductive business meetings, or in the least, inject a new partner that has no idea about how to run the business.
These types of scenarios can be avoided by creating succession plans, like a buy-sell agreement for a business. These types of contracts say that if one partner is to lose their stock, the other partner can buy out that stock at a given price point or according to a certain valuation formula. This way the original partner can retain control of the business, but the other partner (or their spouse) is fairly compensated for that ownership interest in the business. These types of contracts can also be helpful if there is a falling-out between friends themselves by creating a mechanism for one partner to buy out the other partner so they need not be partners any longer.
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