Estate planning is a very personal process involving legal counsel and family members. Timberland is usually a “highly appreciated asset,” that is, the fair market value of the property on the date of death of the decedent is much greater than the basis of the property. This “built-in gain” is why timberland is a “wealth creation vehicle,” but this adds a challenge to the estate planning process, albeit a nice one to have. The challenge is to pass this wealth to lineal decedents or other beneficiaries without incurring an income tax liability on the built-in gain, and minimizing any estate taxes. Aside from federal estate taxes, the federal gift tax can be also be included in this category if a gifting program is part of an estate plan. A less dramatic catch-all term is “transfer taxes.” Pennsylvania also has an inheritance tax program to deal with.
Minimizing transfer taxes tends to dominate discussions of estate planning, but this is only one aspect. Other considerations include support and care of a surviving spouse, the needs of children, and helping favorite charities, among many others. Many timberland owners are also concerned about what will happen to their timberland after they die. The forestry community tends to discuss the intergenerational transfer of timberland in terms of continuity of forest management. While it’s not possible for a timberland owner to literally “rule from the grave” there are options available to increase the likelihood that the land will not be converted to housing subdivisions, second home sites, or malls and parking lots.
Any estate plan must of course start with the goals to be achieved. The next step is an assessment of the assets available to achieve these goals and whether these assets are adequate to do so. Once the fair market value of assets is tallied it’s possible to deal with the question of whether or not your estate will potentially be faced with a Federal estate tax liability. If a majority of your assets will pass-on to a surviving spouse you most likely do not have an estate tax issue. This assumes that you place very limited, if any, restrictions on what your spouse can do with these assets. But, if significant wealth is involved, the estate tax issue must also be considered for the surviving spouse’s estate, frequently the bigger challenge. For additional information go to the National Timber Tax website.
Our Pennsylvania landscape is changing and forestland continues to be broken into smaller parcels and converted into housing developments at an astonishing rate. Although Pennsylvania ranks 48th in population growth, only 4 other states lose more open land every year to development; we convert nearly 300 acres to urban sprawl every day. If you and other forest landowners want to ensure that your forest stewardship efforts extend beyond your tenure and your forest is available for future generations to use and cherish, you must act responsibly and take charge of the direction and long-term future of your land. The question is how to assure that your property is managed responsibly?
Concept of conservation easements, how they work and some of the benefits:
A conservation easement is a legal agreement between a landowner and a nonprofit land trust or governmental entity that permanently limits the uses of the land in order to protect specified conservation values. It does this by restricting the amount of development and activities that can take place in the future. Since the development value of the property cannot be realized, the market value of the property may be reduced to that of “open land”, i.e. the value of the land for agricultural or forest uses. Not only do conservation easements protect open space values such as wildlife habitat, ecological diversity, and forest beauty, but they can also protect the economic and community benefits that arise out of the forest’s production of forest products, goods and services. Future owners are also bound to the easement’s terms and conditions.
A Working Forest Conservation Easement (WFCE) may be your ideal answer. All forests “work” by providing wildlife habitat, clean air, clean water, beautiful surroundings, etc., but a “working forest” is one that is actively managed using a forest stewardship plan as the roadmap or guide. This is in contrast to an easement that is commonly called “forever wild”, where forest harvesting is prohibited so that nature can take its course. It is also different from an easement with no harvest restrictions at all. Working Forest Conservation Easements (WFCEs) do more than restrict specified development rights on a property. WFCEs can protect forest values by assuring sustainable forest practices and encouraging long-term land stewardship, all in accordance with the goals and objectives of the easement Grantor (the donor or seller of the easement). And, WFCEs can enable landowners to continue to derive economic value from the land through the harvest of forest products, good and services, to support the ongoing costs of ownership and stewardship.
Excellent additional info on WFCEs can be found in Working Forest Conservation Easements: a Primer for Forest Landowners, a publication of the Maryland Cooperative Extension. You can find contact information for many of Pennsylvania’s Conservation Land Trusts at the Pennsylvania Association of Land Trust (PALTA). You’ll also want to read information at the website for the Working Woodlands program of the Nature Conservancy in Pennsylvania. A broad list of recommended experts, including attorneys, can be found at conservationtools.org (http://conservationtools.org/
Forest Legacy Program:
The Forest Legacy Program (FLP) is a partnership between individual states and the USDA Forest Service to identify and help conserve environmentally important forests from conversion to non-forest uses. The main tool used for protecting these important forests is a conservation easement. Participation in FLP is entirely voluntary and limited to private forest landowners. To be included in the Forest Legacy Program, a property must lie partially or entirely within a designated Forest Legacy Area. To qualify, landowners are required to prepare a multiple resource stewardship plan as part of the conservation easement acquisition. The Federal government may fund up to 75% of program costs, with at least 25% coming from private, state or local sources. In addition to gains associated with the sale or donation of property rights, many landowners also benefit from reduced taxes associated with limits placed on land use.
In Pennsylvania, the FLP is administered by the Department of Natural Resources (DCNR) Bureau of Forestry in cooperation with the state’s Forest Stewardship Steering Committee, which is composed of private landowners, professional resource managers, and representatives from conservation organizations, higher education, industry, and government.
Visit the Forest Legacy Program website.