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Tractor Talk Discussion Forum

O.T. Legal Opinion??

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70 Mo

09-10-2004 10:30:39




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I know that I will need to consult an attorney but thought maybe someone here has been through this sitution and could give me some good advice. Might help me avoid some problems. I,m seventy and ready to retire, wife died, two sons with good jobs and not into farming but still enjoy the farm. What would be a good way to keep the farm in the family. I know it probably won,t matter when I,m gone but still need the peace of mind I handled it correctly. Thank you for youe suggestions.

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RayP(MI)

09-11-2004 06:54:26




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 Re: O.T. Legal Opinion?? in reply to 70 Mo, 09-10-2004 10:30:39  
You could do what my parents did - sold me the farm while they were still capable, retain right to live on farm for their natural lives, and then the farm becomes the property of the son(s). They can sell for some rediculous low price if they choose, and divide it up as they choose. Talk to your attorney about this option.



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MarkB_MI

09-11-2004 05:41:28




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 Re: O.T. Legal Opinion?? in reply to 70 Mo, 09-10-2004 10:30:39  
You need to find an attorney who specializes in elder law, preferably one who has some experience with farming families. A wrong move here could have some serious unintended consequences. There's a lot of so-called attorneys out there who make their living setting up trusts without the foggiest idea of what they are doing.

Some things to consider:

If you have to go into a nursing home, how will you pay for it? Medicaid will only cover your care if you are destitute, which means you could end up selling your farm to pay for your care. Note that Medicaid is wise to most of the schemes where you give your property to your heirs in order to qualify, so the rules on this are very strict.

What are the tax consequences if you sell or give your sons your farm rather than let them inherit it? If your sons inherit the farm, they may have to pay inheritance taxes, but they will get a new cost basis. If you give them the farm while you're alive, then your cost basis will become their cost basis. They would have to pay capital gains should they sell the property.

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Mark - IN.

09-10-2004 17:27:06




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 Re: O.T. Legal Opinion?? in reply to 70 Mo, 09-10-2004 10:30:39  
Perhaps a "Living Will". Perhaps that"s not the correct term, but I"m not an attorney. Grandfather did something similar, and was told was a "Living Will". The farm is not left to anyone as an "inheritance", so they don"t get stuck paying "inheritance tax" on it to the government, or risk having the government seize it for unpaid taxes, or having the benefactors having to sell it off just to pay the inheritance taxes on it. My understanding is that a "living will" designates an "executor" to the will (ie: a son, daughter, friend, etc), and they can not sell it or anything like that, because they are an executor, not an/the owner. Should they die or something like that, then they have to pass it on as well, in the same manner, in a never ending chain of executors. And are no inheritance taxes paid to the government to cover the taxes that you"ve already paid your entire life.

Again, I"m not an attorney, so ask your attorney.

Leave your legacy and belongings to those that you love and "will" benefit from them the most, not the government.

Ask your attorney, it may not actually be called "living will", but I think that you get the jest of it, and it happens similarly.

Good luck, and congratulations on the first 70 years, perhaps another 70?

Mark - IN.

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Ryan-WI

09-10-2004 15:11:09




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 Re: O.T. Legal Opinion?? in reply to 70 Mo, 09-10-2004 10:30:39  
Definitely talk to an attorney that specializes in estate planning. My family just went through this and had the extra PITA that grandpa and grandma were in a nursing home. But, we have a good (read: resourceful) lawyer and he was able to figure out a way that allowed grandpa to gift the farm to his 3 kids I believe 6 percent at a time and by doing so the state could not claim any of the assets.

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jc

09-10-2004 14:13:43




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 Re: O.T. Legal Opinion?? in reply to 70 Mo, 09-10-2004 10:30:39  
If your sons don"t want to farm but want to keep the farmland the NRCS has the Farm and Ranch Lands Protection Program. You sell the development rights for half of the appraised (for development) price. You get the money,keep the farm and you, or whoever owns it after you, can sell it at farmland price in the future. I know about the location thing,but I just read about a guy who recieved 1.3 mil. for rights on 400+ acres and still has his farm.

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Walter

09-10-2004 12:16:18




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 Re: O.T. Legal Opinion?? in reply to 70 Mo, 09-10-2004 10:30:39  
You should consult a good attorney, estate laws vary from state to state and you need an attorney who is familiar with the laws in your state.



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TheRealRon

09-10-2004 11:46:09




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 Re: O.T. Legal Opinion?? in reply to 70 Mo, 09-10-2004 10:30:39  
The first question the attorney will ask is if your sons will want to continue to operate the farm. That's the most important question as the answer dictates where you go from there. Frankly, while it may be important for you to keep the farm in the family, it may be less important to them. For example, the land may be worth far more to developers than to you sons as farmland. Have a heart-to-heart with them. When my dad asked me I said, "you earned it, you enjoy it". He sold and spent the next few years traveling the world. I didn't get a dime and don't regret it at all.

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kyhayman

09-10-2004 11:19:24




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 Re: O.T. Legal Opinion?? in reply to 70 Mo, 09-10-2004 10:30:39  
As a layman, I agree with the trust recommendation (I'm sure not a lawyer either, took just enough law classes 10 years ago to be dangerous.) Nothing worse than forcing families into partnerships. Might even be best to have a trustee outside the family, not sure of the whole family dynamic. Either that or divide it into two farms, and will 1 to each. That's what my grandfather did, he ha 2 farms. Left his estate in 6 shares for the 6 kids, was to be appraised and a farm to each of the 2 boys, cash from other assets went to the girls in extra portions up until the farm values were equalled out then split the remainder 6 ways. Everyone was happy. The brother that was farming got the larger farm without the house, and the right to rent and farm the other farm for 5 years. Non farming brother got the rental income from the land, the house (to rent out), and the lease on the hunting rights. Kept the peace for 50 years.

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Allan in NE

09-10-2004 10:53:45




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 Re: O.T. Legal Opinion?? in reply to 70 Mo, 09-10-2004 10:30:39  
70 MO,

I'm no lawyer, just barely mentally stable in fact. :>)

But, you might look into a trust. Seems the safest to me.

Just a thought,

Allan



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Mike(Wi)

09-10-2004 10:51:53




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 Re: O.T. Legal Opinion?? in reply to 70 Mo, 09-10-2004 10:30:39  
I would NOT will the farm to both boys as joint tennants. That seems to cause problems down the road.

I would suggest possibly setting up a revocable trust and placing the farm in the trust with you as trustee. Upon your death, your two sons could take over as trustees. This will allow you to have some control over how that asset will be handled after you are gone.

Whatever you do, DON'T just take advice from someone like me. Get a good lawyer who knows the laws of your state, and pay him well to handle this properly.

Good Luck to you.

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