Making a Plan for Farming Succession

It takes more than the next generation’s willingness to farm, to see your operation continue. It also requires estate planning.

Among the things an estate plan should include for family farms is guardianship for minor children, beneficiary designations, financial power of attorney for business and power of attorney for health care, an advanced directive for health care, a will and possibly a trust and life insurance.

That’s a lot to tackle, admits Lancaster Farming in the article “Estate Planning Important to Succession.” However, with the right estate planning attorney, it can go more smoothly. Farmers need also to communicate with their families, so the generations can understand each other’s wishes.

How can you structure the business in order to bring in multiple generations, so the farm can continue to support more than one generation? Without an estate plan in place, the state law generally divides assets, which may require the sale of the family farm. The law does not consider whether members of a family farm are contemplating a divorce or who might have estranged children or parents.

Working with an estate planning attorney who has experience with multi-generational farm families can help bring issues to the forefront and resolve them through a carefully created estate plan. If the will needs to be amended or reviewed in the future, that can be done either by creating a new estate plan or drafting a codicil to amend the will.

Note that one cannot simply make notes in the margins and expect them to be considered valid by the court. Any changes must follow the procedures of the state.  That means having the changes made properly, with the help of an attorney.

Assets outside of the will include life insurance policies and payable on death (POD) bank accounts, where a beneficiary has been named. Joint bank accounts and any jointly owned property held with rights of survivorship are also outside of the will.

For some farm families, a trust can be a valuable estate planning tool. With federal estate exemptions now at record highs ($11.4 million for individuals, $22.8 million for couples), trusts are more likely to be used to protect a disabled family member from losing their eligibility for government benefits (A Special Needs Trusts) or for family members who cannot manage their finances on their own.

Wills provide several advantages in succession planning, including control of the property until death, control over who inherits the property, naming a person to be the executor of the estate and naming guardians for minor children.

A living trust eliminates the need for probate and remains private. This makes it more challenging to contest. The trust can also hold assets for minors. However, a living trust has trustee fees and adds a layer of complexity to asset management.

A durable power of attorney appoints a person to act as an agent for all business and financial matters. The authority can have limits; it can be revoked when you want, or it can be written to be active only during a certain time frame, like when you are undergoing surgery.

A health care proxy is the appointment of an agent to make health decisions on your behalf if you become incapacitated and cannot communicate your wishes.

An advance care directive provides specific instructions about what you do and do not wish to happen, when you are facing possible end of life decisions. This may include intubation, artificial respiration, a feeding tube and other means of prolonging life.

These are admittedly not fun conversations but planning in advance for the farm and the farm family will alleviate stress, confusion and costs during emergency situations. An experienced estate planning attorney can provide a great deal of guidance to clarify the family’s values and future plans, as well as help to prepare documents to ensure that the family’s goals are met.

Reference: Lancaster Farming (April 20,2019) “Estate Planning Important to Succession”

Suggested Key Terms: Estate Planning, Succession, Farming, Health Care Power of Attorney, Advance Care Directive, Trusts, Will, Durable Power of Attorney, Beneficiary, Payable on Death

About the author

Bob Brumfield

Attorney Bob Brumfield has been practicing law since 1984 and regularly receives the “Top Lawyers in California” award as well as the “Client Distinction” and “Client Champion” awards from Martindale-Hubbell.

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