Wills

1. Overview
2. What Is A Will?
3. How Wills Work
4. How Wills Relate to Farm Transfer
5. Pros and Cons
6. How An Attorney Can Help
7. Additional Resources

A will is a legal document directing how your assets will be distributed after death. To ensure farm transfer goals are met, a will can generally be used in combination with, at least: one or more types of trusts, long-term health care planning, life insurance, and tax planning for both estate taxes and gift taxes.¹

Using a will as part of the farm transfer process will require a public “probate” process that involves a court, can take at least 12-18 months, and generally requires the help and expense of a probate attorney.

Creating an effective will and farm transfer plan that actually does what you want it to do will almost always require the help of an estate planning attorney. Estate planning attorneys can draft wills, set up trusts, help keep farmland in the family, help find tax advantages, and help determine the best combination of legal tools to meet strategic farm transfer goals. If possible, it’s best to find an estate planning attorney who has experience working with farmers and understands the special rules and benefits that apply to farms.

A will is a plan that someone makes giving instructions about how they want their property (assets) to be distributed when they die. Wills can be highly individualized according to each farmer’s situation, and can include special provisions to help children continue the family farm business. A will can also help farmers thoughtfully distribute assets among multiple children—including some who don’t want to farm (non-farming heirs), and some who do want to farm (farming heirs). If a farmer is married, the farmer and the farmer’s spouse should each have a separate will.

Wills often include:

• Appointment of a trusted personal representative (also known as an “executor”) to handle the estate, collect assets, pay debts, and manage the distribution of assets according to the instructions in the will;
• Procedures for distributing property;
• Special mention of how the spouse will be treated under the will;
• Special mention of how children will be treated under the will;
• Incorporated trusts (often called “testamentary trusts”) to help avoid estate taxes and protect the spouse and/or children;
• Special provisions to help farming heirs remain on the farm; and
• Provisions for the care of minor children.²

If a farmer dies without a will, state law determines how the farm property will be distributed. A person who dies without a will dies “intestate.” Dying without a will is risky, because state law will not account for farm transfer goals. For example, farmland may have to be put up for sale instead of being passed to a farmer’s child who wishes to maintain a family farm legacy.

Most farmers should seek the assistance of an estate planning attorney in order to create a will that follows all state requirements, to meet farm transfer goals, and to design a plan to minimize estate taxes. Some people with small and simple estates can get by with a simple will. Most often, farmers have more complex estates because they own complicated assets, such as farmland, a farm business, farm buildings, livestock, equipment, and may want to keep these assets undivided and under family ownership. Complex estates require more complex wills, and often benefit from the use of one or more types of trust in conjunction with a will. Sometimes a trust might be created by and incorporated into the will itself.

Wills should be kept in a safe place, like a fireproof safe or a safety deposit box, and your personal representative and heirs should know where the will is kept. Additionally, if you would like to make changes to a will, it is important to make those changes formally and in writing—usually with the help of an attorney. Without taking formal steps, any changes you may want to make might not actually take effect at death.

Making a will legally effective after death most often requires a court-supervised probate process, described below. While probating a will has the benefit of a court’s approval and enforcement, many farmers try to avoid it (if possible) because it can be an expensive, lengthy, and public process. Avoiding probate generally requires using a specific type of trust to transfer assets. Trust creation and administration also requires the assistance of an experienced estate planning attorney.

A will is equivalent to a letter of instruction to the court system that automatically starts a probate process when the testator (the will creator) dies. Probate is the process in which a court recognizes that a will is valid, decides who will be the personal representative for the testator’s estate, establishes clear title (ownership) of any assets, and approves the plan for the distribution of assets.

Probate is a public process, and can be time consuming (12-18 months, or more) and costly (2% to 3% of the value of the estate is common). The purpose of probate is for the court to make sure the testator’s (will creator’s) assets are managed and distributed effectively and according to the testator’s wishes as set forth in the will.³ It also ensures that the testator’s tax obligations and debts are paid off before distributing the assets according to the will’s instructions. Assets that are subject to the probate process are any assets that are titled solely in an individual’s name that are not otherwise able to be transferred at death through some other mechanism, such as a beneficiary designation or joint ownership of the asset. While certain assets are subject to the probate process, some assets are not subject to the probate process (these are called “non-probate assets”).⁴ Non-probate assets are assets that can transfer to another individual at a person’s death through a mechanism that avoids court involvement, such as beneficiary designations or joint ownership of the asset. The probate process can be avoided in some instances, at least in part, when farmers strategically use a certain type of trust (like a Revocable Living Trust) to transfer assets at death.⁵

Although the process of probate differs depending on individualized circumstances, there are generally eight steps (described below).⁶ Prior to beginning the probate process, the decedent’s (will creator’s) personal representative or the decedent’s heirs will need to locate the will itself, consult with a probate attorney, and secure copies of the death certificate.⁷

• Individuals who want a court to enforce or invalidate a will file a petition with the court. Generally, the proposed or nominated personal representative will file the petition (often with the help of an attorney).
• The court then appoints the personal representative.
• The personal representative collects and takes inventory of the decedent’s (will creator’s) assets.
• The court determines the validity of the will.
• If the decedent left behind a spouse or minor children and the decedent lived with the spouse or minor children, the spouse or minor children are entitled to certain allowances that take precedence over certain debts, creditors, and obligations of the estate. State laws govern these amounts.⁸
• Creditors are then paid off. The decedent’s creditors are paid from what remains after allowances are given to a qualified spouse and/or children.
• The decedent’s surviving spouse and minor children are usually entitled to a certain share of the assets regardless of what the will left for them. State law determines what these amounts are.
• The decedent’s assets are then distributed according to the instructions of the will.

If a person dies without a will, or if a will does not meet state requirements for being valid, then assets pass through intestate succession, meaning that state laws and state courts determine who gets what property.⁹ This is the case in all 50 states.¹⁰

Generally, in intestate succession, the surviving spouse receives all of the decedent’s property (although this may vary if the decedent had any children from a relationship prior to the relationship with the surviving spouse). If there is no surviving spouse, but the decedent has children who are still living, the property is divided equally among those children. State laws also cover situations where the deceased person has no spouse or living children.

The purpose of intestate succession statutes is to distribute a person’s wealth in a manner that closely represents how the average person would have designed his or her estate plan. However, farmers are not your average person. As a result, state rules can differ dramatically from what a farmer really would have wanted. Even where it is known what a farmer might have intended under a farm transfer plan, no exceptions are made where no valid will exists—state law must be followed. Nor are there any exceptions made based on need or special circumstances.¹¹ That means it is important for a farmer to have a will drafted by an attorney to ensure it is valid and will meet farm transfer goals.

Farmers can use a will to make sure the farmhouse, farm business, farmland, farm equipment, and any other farm assets go to intended people or organizations. People inheriting the land can be within or outside the family.

• Wills drafted by an estate planning attorney can help ensure farm transfer goals are met, and can create and incorporate trusts and other tools (like power of attorney, health care directives, etc.) as necessary.
• Wills are generally easier, and thus less costly, to arrange than a trust.
• Wills generally require a probate process. Although probate involves time, cost, and court intervention, it can be helpful in situations where the heirs may not agree on the will’s instructions for distributing assets.

• The transfer of property under a will only occurs upon the death of the farmer. In contrast, some types of living trusts (and other mechanisms, like LLCs) can be used to gradually transfer property during a farmer’s life. Wills can be used in addition to trusts and other farm transfer tools.
• Wills must generally go through the probate process. Probate can be expensive and lengthy, meaning there may be a delay in transferring the assets. Furthermore, probate is a public court proceeding, which may make farmers and heirs uncomfortable.

• A will, especially if used as one tool in a strategic estate planning process, can protect farming heirs and allow the farm business to be passed on.
• Without a will, state law can take over, and could make preserving a family farm legacy impossible.

• The probate process can cause interruption of the farm business, potentially resulting in financial and other losses.
• A will that is not designed with farm transfer goals in mind could result in family discord and the inability to pass on the farm.

Additional Resources

• Transfer and Estate Planning, University of Minnesota Extension.
• Iowa Farmers Business and Transfer Plans, Iowa State University Extension.
• A Legal Guide to the Business of Farming in Vermont: Farm Transfer and Estate Planning, University of Vermont Extension.