By: Senior Attorney Dan Vu
I have always found that farming families are more aware of the importance of proper estate planning than the general population. This is perhaps, because most farmers have a story or two of an estate plan that went terribly wrong. I am never surprised, because there are plenty of ways for an estate plan to fail, especially for farmers.
For farmers, the stakes are high and the goals are even higher. For example, most want the farm to stay in the family for their children who want to continue the farming tradition. The difficulty is somehow also providing for the children who don't want to farm while burdening all of their children with as little tax and debt as possible. These are long-standing problems for farmers, and I am certain that the fairly recent boom in farmland prices have only exacerbated the problems.
With these issues looming, most farmers attempt to resolve them earlier than most other families. I confirmed this when I was recently working in our booth at the Farm Science Review in London, Ohio. Many farmers I met already had a revocable living trust in place. This was good news since I believe that a revocable living trust is a necessity for a farming family. If properly created and utilized, it can resolve many of the farmer's concerns. However, I was also glad to be there to explain how a typical revocable living trust cannot, on its own, solve all of the problems that face a modern farming family.
The most often overlooked but most costly modern problem is the devastating expense of long term care. Today an extended stay in a nursing home could literally cost the farmer his or her farm because, unfortunately, a revocable living trust cannot protect the farm against these long term care costs. In fact, the State routinely requires farms to be sold to pay for the cost of long term care… and … the State will place a lien on farms that can't be sold.
Also often overlooked is the problem of the capital gains tax. This is not a new problem but with elimination of the Ohio Estate Tax and the increase in the Federal Estate Tax exemption, the modern farming family has a new opportunity to take advantage of the “step-up in basis” rules. A “step-up in basis” occurs at a farmer's death and it allows the family to re-depreciate assets or sell them with little to no capital gains tax. Before the changes in the estate tax, the farming family would have to choose between paying the estate tax or receiving a favorable capital gains tax treatment. With these recent estate tax law changes, many farming families can now receive favorable capital gains tax treatment without a large estate tax.
It's not often that the government lets you have your cake and eat it too. But you do not get the full use of the “step-up” rules with a typical revocable living trust. In fact, many of these older trusts were created before the estate tax law changes and most put the farming family in a worse tax position than they would have been with no trust at all.
So if you are a farmer, it is important that you take another look at your revocable living trust and your existing estate plan as a whole. Make sure it is built to face the modern problems of today's farming families. I know you are thinking that you already took the time to do so years ago with some attorney who you can barely recall. But unfortunately things change, so make sure your plan changes with it. Swing by our booth at next year's Farm Science Review or better yet, call us after this year's harvest for a complimentary appointment with one of our knowledgeable attorneys.