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By: Robert Moore, Wednesday, April 10th, 2024

At some point, we have all had to find a notary to get a document notarized.  Ohio law requires certain documents like deeds, long-term leases and vehicle titles to be notarized.  But, have you ever thought, why do we need to have documents notarized and what are notaries?  In this article, we will discuss notaries and the important role they plan in our society.

What Does an Ohio Notary Do?

An Ohio notary is an official empowered by the state to perform various acts that add an extra layer of security and credibility to legal proceedings. Their primary duties include:

  • Verifying Signatory Identity: A notary ensures that the person signing a document is who they claim to be. This involves either personally knowing the person or requesting valid government-issued photo identification and verifying its details.
  • Witnessing Signature: The notary observes the signing of the document and attests to their presence during this act. Their signature and official seal serve as evidence of this witnessing.
  • Administering Oaths and Affirmations: Notaries can administer oaths, which are formal declarations made under penalty of perjury, and affirmations, which are non-religious oaths. This ensures the seriousness and truthfulness of statements made during legal proceedings.
  • Taking Acknowledgments: An acknowledgment is a formal statement confirming that a signer understands the content of a document and willingly signed it. The notary verifies the signer's identity, witnesses their signature, and completes a separate acknowledgment certificate.

Why Do We Need Documents Notarized?

Notarization serves several critical purposes:

  • Combating Fraud: By verifying identity and witnessing signatures, notaries help deter fraud by ensuring documents haven't been forged or signed under duress. This adds a layer of security to important transactions, protecting individuals and organizations from potential scams and financial losses.
  • Promoting Trust: A notary's seal signifies an independent and impartial witness to the signing process. This official recognition instills confidence in the document's authenticity, especially when dealing with parties unfamiliar with each other.
  • Facilitating Legal Processes: Certain legal documents, such as deeds, powers of attorney, and sworn statements, require notarization to be considered valid in court proceedings. The notary's presence strengthens the document's legitimacy and streamlines the legal process.

Who Can Be an Ohio Notary?

To be a notary, a person must meet the following requirements:

  • Be at least 18 years old and a legal resident of Ohio, or
  • Be an attorney admitted to practice law in the state with a primary practice in Ohio.
  • Have no criminal convictions.

All new notaries are required to complete a 3-hour notary class and obtain a background check.  Non-attorneys must also pass an exam. 

Conclusion

Notaries play a vital role in safeguarding the integrity of legal documents and transactions within the state of Ohio. By verifying identities, witnessing signatures, and administering oaths, they contribute to a more secure and efficient legal system. If you're interested in a rewarding role that upholds trust and protects individuals, becoming an Ohio notary public might be a perfect fit for you.

Tractor pulling wagon of grain across beanfield at sunset.

Written by David L. Marrison, Professor & Field Specialist in Farm Management, OSU Extension

“I guess it comes down to a simple choice, really. Get busy living or get busy dying.” This famous line was quoted by Andy Dufresne, played by Tim Robbins, in the iconic movie titled “The Shawshank Redemption” released in 1994.

As we each traverse through our lives, we all are presented with moments that make us pause and reflect on how precious the time is we have been given here on earth. Every time I watch The Shawshank Redemption, I pause and think of the deeper message in this line:  that life can be spent going through the motions and waiting around for something to happen or you can make something happen.

As we look at developing a plan for transitioning the farm to the next generation, are we waiting around for something to happen? Or will we work to make something happen? As farmers, we have to contend with and solve the day-to-day problems which arise on the farm. And there is never a shortage of problems that arise. Because of this, the time for deeper planning functions such as farm transition planning is often pushed down the to-do list.  So, what will be the trigger to make something happen with regards to your succession plan?

What will be your trigger?

One of the hypothetical questions we pose in farm succession workshops is, “What knowledge would you need to pass on if you knew you had only two months to live?” This exact scenario happened to our family in 2010 when my father was diagnosed with pancreatic cancer just as we entered into Spring planting season on our dairy farm in northeast Ohio. 

My father valiantly battled this disease but passed away seven weeks later. Our family learned a lot and had to scramble to manage the farm in the midst of his illness. I am grateful for the short time we had with my dad to make preparations. But it was not long enough to learn everything we needed to know to run the farm without him.

I challenge you to think how your farm and family would react to the loss of the principal operator.  What knowledge and skills need to be transferred to the next generation so they can be successful without you? What can you do today to make something happen?

Who Will Manage the Farm in the Future?

As you develop your succession or transition plan, there are a myriad of decisions to be made. These decisions include identifying the next leader/manager of the farm, how to be fair to off-farm heirs without jeopardizing the future of the on-farm heirs, how to distribute assets through the estate plan, how and when the senior generation will retire, and how the business will deal with unexpected issues such as divorce, disability or paying for nursing home expenses. I would contend that the most crucial planning functions are to identify the next manager of the farm and then strategically plan how to develop them to lead the farm in the future.

The first step is to identify who the next leader or leaders of the farm will be. The next generation could be an immediate family member (son, daughter, grandchild) or extended family member (brother, sister, niece, nephew). With that said, the next leader does not have to be from your family as some farms have transitioned successfully to a non-blood friend or neighbor. The key is to choose a successor who will be the best caretaker of the farm and the land they will be entrusted with.

As you review potential managers and heirs to your farm, it is important to talk with them about their vision for the future and how it aligns with the current farming operation. What are their goals and aspirations for the farm? What concerns do they have about the future of the farm? 

Complete a skills assessment with each potential heir/manager to examine their current strengths and which areas they will need to receive training in order for them to be a better leader for the farm in the future. Talk with them to learn more about what they would be most concerned or scared about if they had to take over the farm today. Are there additional responsibilities they would like to assume and what is their expectation for an appropriate time for management control to be transferred?

The new manager should have experience with how other farms are operated. Having the future manager work on another farm prior to returning to the home farm is a valuable experience. Mentor relationships should also be developed for the new manager to have a trusted team to help them grow.

Putting the Transition into Motion

The transition can be accomplished gradually by turning over more responsibility and authority to the successor.  In fact, this process may (and should) take 5-10 years. It is important to develop a timeline for transferring ownership, management responsibilities, and knowledge from one generation to the next.

As the senior generation transitions their role and responsibilities to the next generation, thought should be given to the overall labor hours which will be available. In some cases, the responsibilities of two members of the senior generation will be transitioned to a single successor. Think of husband/wife combination transitioning to one of their children. This could cause a labor shortage. Could some tasks be outsourced to independent contractors (like accountants)? Can some production practices be accomplished through custom hire arrangements (silage harvest or cattle breeding)?

The biggest task in the transition plan is making sure the next generation has a firm foundation of knowledge to manage the operation in the future. This will look different for each farm and for the type of manager that is needed.

Owner-Operator. If the next manager is going to be an owner-operator, then training will need to include how to manage all aspects of the farm. These include production skills to raise livestock and/or crop enterprises and marketing skills to effectively market each commodity produced. The owner-operator will also need financial skills to manage the operation’s finances and taxes and human resource skills to manage employees. Additionally, they will need to know how to maintain facilities, tools, and equipment as well as how to manage risk through crop, livestock, and farm insurance.

Owner-Landlord. To the contrary, if the next manager will be more of an owner-landlord, they will need to be trained less on the day-to-day production activities and more on how to manage the farm asset. Some skills which are necessary for landlords include tenant and farm rental management, farm finance and tax management, farm insurance decision making, and facilities and other farm assets maintenance.

Strategies recommended for farm businesses to utilize in the transition process are:

  • Every person who is part of the business (family member and employees) should have a written job description which includes job duties, responsibilities, and expectations.
  • Create an organization chart of all employees and how each employee relates to one another.
  • Develop a timeline for the successor to work through each job description on the farm. It is good to start the new family member as an employee and not the top manager.
  • Provide meaningful opportunities for decision-making as well as accepting responsibility for the future manager.
  • Develop a plan on how the future manager can increase their equity in the farm business through gifting, purchasing or inheritance.
  • Develop a timeline for retirement and managerial transfer from senior generation to the succeeding generation.
  • Utilize family business meetings to discuss the transfer and changing roles within the business.

Some experts advise that the current manager take a number of planned absences before retiring to provide an opportunity for the successor to see what it is like to manage the business alone. This will also allow the current manager to see that the farm does not fall apart without them. So how do you know if the next generation is ready?  There are two other approaches which you can use to help prepare the next generation to lead without you:  

Opossum Approach. Just as an opossum plays dead, so too should the principal operator.   Take an unannounced week away from the farm during one of the busiest times of the year for your farm and allow the junior generation to take over with no communication from the senior generation.  I know this sounds crazy but how else will you know what knowledge and skills need to be transferred?  It is a lot easier to come back after a short vacation and be able to answer the questions your son or daughter has.  You won’t have this opportunity when you pass away.

365-Day Challenge.  Outside of using the opossum approach, it should be the goal of the senior generation to transfer at least one knowledge point or skill to the next generation each day. So, by the end of the year, your heirs will have 365 new tools in their management toolbox. If you do this over the next five to ten years, you can teach your heirs an incredible amount.

Take Advantage of OSU Extension Workshops

Attend one of our Planning for the Future of Your Farm” workshops this Winter to learn about the communication and legal strategies that provide solutions for dealing with farm transition needs and decision making.  A webinar version and several in-person options for the workshop are being offered.

Webinar version.  You and your family members can attend the workshop individually and online from the comfort of your homes. The four-part webinar series will be February 5, 12, 19, and 26, 2024, from 6:30 to 8:30 p.m. via Zoom. Pre-registration is required so that a packet of program materials can be mailed in advance to participating families. Electronic copies of the course materials will also be available to all participants. The registration fee is $75 per farm family.  Register by February 2, 2024 to receive course materials in time. Register on this page.

In-person workshops.  Our local Extension Educators are hosting in-person workshops at five regional locations across Ohio. Registration costs vary by location due to local sponsorships. 

More information about our Planning for the Future of Your Farm workshops is available at: go.osu.edu/farmsuccession.

Final Thoughts

So, are you ready “to make something happen” to transition your farm to the next generation?  Farm managers are encouraged to think about how the next generation can be prepared to lead the farm in the future.  And as Andy Dufresne stated in The Shawshank Redemption, “remember, hope is a good thing, maybe the best of things, and no good thing ever dies.”  Good luck as you plan for the future of your farm!

Farmer looking out over field with combine harvesting soybeans in background
By: Peggy Kirk Hall, Friday, November 03rd, 2023

If you and your family are grappling with the critical issue of how to transition the farm operation and farm assets to the next generation, we can help.  Attend one of our “Planning for the Future of Your Farm” workshops this fall and winter to learn about the communication and legal strategies that provide solutions for dealing with farm transition needs and decisionmaking.  We've scheduled both a webinar version and several in-person options for the workshop, with the first in-person workshops coming up soon--November 29, 2023 in Mt. Orab and December 7 in Celina.  

This workshop challenges farm families to actively plan for the future of the farm business.  Learn how to have crucial conversations about the future of your farm and gain a better understanding of the strategies and tools that can help you transfer your farm’s ownership, management, and assets to the next generation. We encourage parents, children, and grandchildren to attend together to develop a plan for the future of the family and farm. 

Teaching faculty for the workshop are David Marrison, OSU Extension Farm Management Field Specialist, and Robert Moore, Attorney with the OSU Agricultural & Resource Law Program. Topics David and Robert will cover in the workshop include:

  • Developing goals for estate and transition planning
  • Planning for the transition of control
  • Planning for the unexpected
  • Communication and conflict management during farm transfer
  • Federal estate tax challenges
  • Tools for transferring assets
  • Tools for avoiding probate
  • The role of wills and trusts
  • Using LLCs
  • Strategies for on-farm and off-farm heirs
  • Strategies for protecting the farmland
  • Developing your team
  • Getting your affairs in order
  • Selecting an attorney 

Webinar version.  You and your family members can attend the workshop individually from the comfort of your homes.  The four-part webinar series will be February 5, 12, 19, and 26, 2024, from 6:30 to 8:30 p.m. via Zoom.

In-person workshops.  Our local Extension Educators are hosting in-person workshops at five regional locations across Ohio:

  • November 29, 2023 - Brown County - Mt. Orab
  • December 7, 2023 - Mercer County - Celina
  • January 19, 2024 - Columbiana County - Lisbon
  • January 26, 2024 - Champaign County - Urbana
  • February 2, 2024 - Seneca County - Tiffin
  • April 4, 2024 - Warren County - Lebanon

Registration is required.  Find registration information for all workshops at https://farmoffice.osu.edu/farm-transition-planning.

We hope you'll join us to move forward on planning for the future of your farm!  For questions about the workshop, please contact David Marrison at marrison.2@osu.edu or 740-722-6073.

By: Robert Moore, Wednesday, November 01st, 2023

One of the primary challenges for a retiring farmer is the large tax burden that retirement may cause.  Throughout their farming careers, farmers do a good job of managing income taxes, in part, by delaying sales and prepaying expenses.  This strategy works well while the farm is operating but can cause significant tax liability upon retirement.  The combination of a large increase in revenue from the sale of assets and little or no expenses to offset the revenue can cause a retiring farmer to be pushed into high tax brackets.  It is not unusual for 40% or more of the sale proceeds from a retirement sale to go to taxes.  One strategy to reduce income tax liability at retirement is a Charitable Remainder Trust (CRT).  A CRT can be an effective way of managing income taxes at retirement, but it is not for everyone. 

A CRT is a charitable trust because at least some of the assets in the CRT must eventually pass to a qualified U.S. charitable organization such as a church or 501(c)(3) corporation.  This charitable nature of the CRT is central to the CRT strategy.  As a charitable trust, the CRT may sell assets without paying tax on the sale.  So, instead of the retiring farmer selling assets in their own name, they donate the assets to the CRT and then the CRT sells the assets.  The retiring farmer then receives an income stream from the CRT.  After a period of time, the income stream stops and the remaining trust assets are contributed to the named charity.  The following are the steps of the CRT strategy:

  1. Assemble a team of advisors and develop a CRT strategy.
  2. Donor establishes a CRT.  The trust document declares the income beneficiaries and the charitable beneficiaries. 
  3. Donor determines the assets to be contributed to the CRT.
  4. Donor contributes assets into the CRT, typically grain, machinery and/or livestock.
  5. The CRT sells the assets but does not pay tax.
  6. The Trustee of the CRT uses the sale proceeds to establish an annuity.  The annuity must be designed to provide at least 10% of the sale proceeds to the charity.
  7. The annuity pays out to the Donor over a number of years.  The Donor pays income tax on the annuity distributions.
  8. When the trust is terminated, the charity is paid the remaining assets.

Consider the following example to help further explain how a CRT strategy works:

Farmer decides to retire at the end of the 2023 crop year.  After harvesting the 2023 crop, Farmer owns $1 million of grain and $1.5 million of farm equipment.  Farmer’s accountant tells him that if he sells all the grain and machinery in one year, he will pay around $1 million in taxes. Farmer decides to implement the CRT strategy.  He establishes a CRT and names himself and his spouse as the income beneficiaries and the local children’s hospital as the charitable beneficiary.  Farmer transfers his grain and machinery into the CRT.  The CRT sells the grain and machinery and receives $2.5 million in sale proceeds. 

The CRT establishes an annuity that will pay out $125,000 for the next 20 years.  Farmer pays income tax on each $125,000 payment which results in $20,000 of annual income taxes.  After 20 years, the trust is terminated, and the children’s hospital receives the remaining funds in the CRT.  

As the example shows, the strategy avoids a large, up-front tax payment in the year of the asset sale.  Farmer pays taxes on each annual $125,000 payment which allows him to stay in a lower tax bracket.  In the example, instead of paying $1 million in taxes in 2023, Farmer spreads the payments out and ultimately pays $400,000 over 20 years.

The primary disadvantage of a CRT is that it is an irrevocable trust.  Once the CRT is set into motion, it cannot generally be undone.  A CRT may not be the best option for farmers who wish to keep flexibility with managing their assets or who are transitioning the farming operation to family members.  While a CRT provides many tax and business benefits, it is not an adaptable plan that can be changed in the future.

Another disadvantage of a CRT is the cost.  It is usually a rather complicated process to establish the trust, calculate the potential tax savings, file a tax return, and establish an annuity.  Legal and other professional fees will often be tens of thousands of dollars. It is important early in the planning process to weigh the potential tax savings against the cost of establishing the CRT.

For more information on CRTs, see the newly published bulletin Charitable Remainder Trusts as a Retirement Strategy for Farmers available at farmoffice.osu.edu.  This bulleting provides details on how a CRT strategy is implemented and its advantages and disadvantages.  Be sure to consult with an attorney, tax advisor and financial advisor before deciding on a CRT for your retirement strategy.

National Agricultural Law Center webinar announcement
By: Peggy Kirk Hall, Monday, February 13th, 2023

After many years in private law practice, OSU’s Robert Moore knows the unique estate planning challenges farm families face.  The capital-intensive nature of farming and the family legacy associated with it are just two of the many issues that contribute to those challenges.  But Moore also knows there are legal strategies that can help farm families meet their estate planning needs.

Join Moore as he reviews both the challenges of farm family estate planning and ways to address those challenges in a webinar this Wednesday at Noon.  The webinar offers a chance to learn more about topics such as dealing with on-farm and off-farm heirs, distribution plan ideas, and how trusts can benefit a farm estate plan.  The National Agricultural Law Center will host the webinar as part of its free monthly webinar series. Registration is necessary and is available online at https://nationalaglawcenter.org/webinars/estate-planning/.

The webinar represents an ongoing partnership between OSU’s Agricultural & Resource Law Program and the National Agricultural Law Center.  For eight years, the two institutions have worked together to bring agricultural law research and information to the nation’s agricultural community with support from the USDA’s National Agricultural Library.  Our agricultural law library on farmoffice.osu.edu contains many resources developed through this partnership, including recent publications on Planning for the Future of Your Farm, Keeping Farmland in the Family, and Long-Term Care and the Farm.  Those and a multitude of other agricultural law resources are also available on the National Agricultural Law Center’s website at nationalaglawcenter.org. 

If you’re not available to attend the webinar this Wednesday, find a recording of it and all other webinars in the monthly series at https://nationalaglawcenter.org/webinars.

Logos

Ohio farm and Planning for the Future of Your Farm Webinar Series title
By: Peggy Kirk Hall, Friday, December 09th, 2022

We're happy to announce our popular “Planning for the Future of Your Farm” webinar series for 2023.  The four-part online series will be on January 23 and 30 and February 6 and 13 from 6:30 to 8:00 p.m. This workshop will help farm families learn strategies and tools for transferring farm ownership, management, and assets to the next generation.

Workshop topics

Here's what the webinar will cover:

  • Developing goals
  • Planning for the transition of management
  • Planning for the unexpected
  • Communication and conflict management during farm transfer
  • Legal tools and strategies
  • Developing your team
  • Getting your affairs in order
  • Selecting an attorney

Workshop faculty

You and your family will learn from two of Ohio's top farm transition experts:

  • Robert Moore, Attorney with our Agricultural & Resource Law Program. If you didn't already know, Robert was in private practice for 18 years before joining our program. He provided legal counsel to farmers and landowners across Ohio on business, farm transition, and estate planning. 
  • David Marrison, OSU Extension Field Specialist in Farm Management. David has been with OSU Extension for 25 years and is nationally known for his teaching in farm succession. He has a unique ability to intertwine humor when speaking about the difficulties of passing the farm on to the next generation. 

Registration

Because of its virtual nature, you can invite your parents, children, and grandchildren to the webinar, regardless of where they live in Ohio or across the United States. The webinar offers an easy way to include all family members in learning about how to develop a plan for the future of your family farm. 

Families must pre-register for the workshop by January 16, 2023 at go.osu.edu/farmsuccession.  We appreciate the support of the Ohio Corn & Wheat Growers Association in sponsoring the workshop and helping us keep the cost at $75 per farm family. The registration includes one printed set of materials that we'll mail to a family member, and other members will have access to electronic copies of the materials.

In-person workshops planned also

Several of our OSU Extension county educators are also hosting day-long in-person versions of the workshop on these dates:

Don't miss out

We hope you'll join us for this important series!  Even if you already have an estate plan or have begun one, this workshop should help you learn more and ensure that you're effectively addressing your goals for the future of your farm and farm family. 

For additional information David Marrison at marrison.2@osu.edu or 740-722-6073.

By: Robert Moore, Wednesday, December 07th, 2022

Legal Groundwork

As 2022 winds down, it’s not too early to start thinking about projects for 2023.  One project, if you have not done so in a while, is to review your estate plan.  Estate plans should be reviewed occasionally and updated as needed.  The following are some items to look at when reviewing an estate plan.

Health Care Power of Attorney.  Check who you have identified as your health care power of attorney.  Is the designated person(s) who you want to act on your behalf and is their address and phone number up to date?  It is also good to have a backup power of attorney in case your primary person is unable or unwilling to serve.

Living Will.  If you have a Living Will, check to be sure the contact person(s) and their contact information is up to date.  Remember that a Living Will is the end-of-life directive that gives permission to a doctor or hospital to withhold or discontinue artificial life support.

Financial Power of Attorney.  You should also check to see who you have designated as your financial power of attorney and make sure their contact information is current.  Do you want to make changes to who will serve as your financial power of attorney?

Wills/Trusts.  These documents determine who will inherit your assets when you pass away.  Review who you have selected for to serve as the executor/trustee and if you should make changes to these designations.  For people with minor children, do you have a guardian named for your children and do you want to make any changes?  Also, review the distribution plan to see if it will work with your current goals and ideas or should you make some changes.

 Balance Sheet and Assets.  We don’t always think about balance sheets with estate plans, but they are a key component of good estate planning.  One issue to address is net worth.  Is your net worth less than the current $12.06 million/person estate tax exemption?  Will your net worth be less than the exemption in 2026 when the exemption reverts to 2017 values (probably around $7 million per person*)?  If you answer no to either of these questions, you should make an appointment with your attorney to address your net worth issue.

The other reason to review your balance sheet and assets is to try to make everything non-probate.  All titled assets can be made non-probate through titling.  Did you buy a new truck or trailer and forget to title it non-probate?  Avoiding probate is relatively easy but it must be done prior to death.  If you have any questions about probate, contact your attorney and review your assets with them.

If you get a chance before 2023 gets too busy, take an hour or two and review your estate plan.  You might be surprised that you have forgotten some of the details of your plan.  Having a good, up-to-date plan is important to make sure that you can pass along assets to your beneficiaries in the most efficient and practical way you can. 

 

*Unless extended by Congress, the estate tax exemption will revert to the 2017 exemption amount which was $5 million.  The amount is indexed for inflation so an exact number cannot be known for 2026 but a reasonable estimate is $7 million.

Posted In: Estate and Transition Planning
Tags: Estate Planning
Comments: 0
Front page of Long-Term Care and the Farm guide
By: Peggy Kirk Hall, Tuesday, November 22nd, 2022

Long-term care costs are a threat to family farms.  In fact, we predict that long-term care costs are the biggest financial threat to farm families, even more so than federal estate taxes.  That’s because long-term care can affect every farm--and when cash or insurance runs out, farm assets may have to be sold to pay for long-term care.  With an increasing elderly population and rising health care costs, the financial pressure of long-term care on family farm succession will probably grow in future years.

What can farm families do to protect farm assets from the risk of long-term care?  Our latest publication by attorney Robert Moore, Long-Term Care and the Farm, addresses this question.  The publication begins with an important first step:  understanding long-term care risk.  What is the chance that a farmer will require long-term care, what kind of care is most common, and what how much will it cost?  Robert presents data and statistics that help us predict the expected type, length, and costs of long-term care services a farmer might require. 

Once we assess long-term care risk, the next important question is how to pay for long-term care while keeping farm assets secure.  Robert explains how Medicare and Medicaid programs can apply to long-term care costs.  He then presents several legal strategies to mitigate long-term care risk and protect farm assets. The guide wraps up with a process a farm family can follow to assess long-term care risk for their individual situation.

It's possible to keep family farmland and the family farm businesses safe from the risk of long-term care.  If long-term care is a concern for your farm family, be sure to read this important new publication and talk with an agricultural attorney about protection strategies. The publication is available at no cost through our funding partnership with the National Agricultural Law Center and the USDA National Agricultural Library.  Read Long-Term Care and the Farm here.

By: Peggy Kirk Hall, Tuesday, November 15th, 2022

Farmland can be a family's most important asset, recognized for both its heritage and financial value.  Here's some proof:  over 1,900 "Century Farms" in Ohio have been in the same family for over 100 years. And 130 of those farms have been in the same family for over two centuries -- testaments to the importance of farmland to Ohio families.

But there are threats that can cause farmland to leave a family despite its value to family members. Long-term care costs, divorce, debt, co- ownership rights, poor estate planning -- these are situations that can put family farmland at risk. The good news is that legal strategies can counter these threats. 

In our new publication, Keeping Farmland in the Family, we offer five legal tools that can help keep farmland in a family:

  • Agricultural or conservation easement
  • Right of First Refusal
  • Long-term lease
  • Limited Liability Company
  • Trust

These legal tools offer a range of protection for family farmland, allowing a family to use a highly restrictive strategy that protects land for many generations or a less restrictive approach that secures land only for a generation or two. Examples provided throughout the publication can help farm families see how different scenarios play out.  The guide does not intend to substitute for individual legal advice, but offers a family a starting point for discussion and decisionmaking with an agricultural attorney. 

Read Keeping Farmland in the Family here.  We were able to produce this publication with financial assistance from the National Agricultural Law Center and the USDA's National Agricultural Library.

 

By: Robert Moore, Thursday, July 28th, 2022

Legal Groundwork

As anyone who has been an executor of an estate or has had to deal with an estate knows, the probate process can be slow, cumbersome and expensive.  Fortunately, much probate, and sometimes all probate, can be avoided with some planning and diligence.  The following is a brief discussion on how to avoid probate with different types of assets.

Real Estate

Survivorship Deeds.  Ohio law allows co-owners of real property to pass their share of the property to the surviving co-owner(s) upon death through a survivorship deed, also referred to as a “joint tenancy with survivorship rights.”  This type of deed is common in a marital situation, where the spouses own equal shares in the property and each becomes the sole owner if the other spouse passes away first.  The property deed must contain language such as “joint with rights of survivorship”.

Transfer on Death Affidavit. Another instrument for designating a transfer of real property upon an owner’s death is the “transfer on death designation affidavit.” This affidavit allows property to pass to one or more designated beneficiaries if the owner dies.  The process is simple, it requires the owner to complete an affidavit and file it with the recorder in the county where the land is located.  Upon the owner’s death, the beneficiary records another affidavit with the death certificate and the land is transferred without probate.

Vehicles

Ohio law also allows motor vehicles, boat, campers, and mobile homes to transfer outside of probate with a transfer on death designation made by completing and filing a Transfer on Death Beneficiary Designation form at the county clerk of courts title office.  There is a special rule for automobiles owned by a deceased spouse that did not include a transfer on death designation. Upon the death of a married person who owned at least one automobile at the time of death, the surviving spouse may transfer an unlimited number of automobiles valued up to $65,000 and one boat and one outboard motor by taking a death certificate to the title office.

Payable on Death Accounts

All personal financial accounts, including life insurance, can include payable on death beneficiaries.  The beneficiaries are added by using forms provided by the financial institution.  Upon the death of the owner, the beneficiary completes a death notification form and submits to the financial institution with a death certificate.  The beneficiaries are then provided the funds held by the account.

Business Entities

The many advantages of using business entities are well known but avoiding probate is an often-overlooked attribute of business entities.  Ohio law allows business entity ownership to be transferred outside of probate by making a transfer on death designation.  This is most commonly done with ownership certificates or within the operating agreement.  Upon the death of the owner, the ownership is transferred to the designated beneficiary with a simple transfer business document.  

Non-Titled Assets

Farms have many untitled assets such as machinery, equipment, livestock, crops, and grain.  These assets can be made non-probate, but it will require either a trust or a business entity.  For example, machinery can be transferred to an LLC.  Then, the LLC ownership is made transfer on death to a beneficiary.

Ohio law allows probate to be avoided relatively easily.  Estates worth many millions of dollars can avoid probate and make the administration easy.  However, the owner of the asset must take the time and make the effort to change the title or add a beneficiary.  An attorney familiar with estate planning can assist with making sure all assets are titled to avoid probate.  The executor and the heirs of the estate will appreciate having little or no probate to deal with.

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