Recent Blog Posts

Those familiar with serving as an executor or navigating probate understand the daunting nature of the task. The process often entails numerous filings and can extend over several months or even years. Consequently, seeking legal counsel is frequently necessary to navigate this complex procedure and ensure the estate is managed appropriately. One common question concerning the engagement of attorneys for probate concerns their fees: what are their charges?

The Ohio Revised Code allows attorneys to receive "reasonable fees" for their services in aiding with estate matters. However, Ohio law doesn't offer a specific definition of what constitutes reasonable fees, nor does it prescribe a straightforward formula for determining them. Ultimately, it falls upon the county probate judge to decide whether an attorney's fees are reasonable for overseeing estate administration. Given the potentially burdensome task of assessing fees for each estate, many county probate courts set standardized rates that estate attorneys can charge, thereby streamlining the process.

The probate rates vary from county to county but generally range from 1% - 5% of the total value of the estate.  As an example, the following are the probate rates for Brown County, Ohio:

            For all personal property:

                        5.5% on the first $50,0000;

                        4.5% for $50,000 - $100,000;

                        3.5% for $100,000 - $400,000;

                        2.0% above $400,000.

            For real estate:

                        1% for all real estate transferred to a spouse;

                        2% on the first $200,000 transferred to a non-spouse;

                        1% over $200,000 transferred to a non-spouse.

Let's examine the potential probate fees for a medium-sized farm located in Brown County. This farm comprises $1,000,000 worth of real estate, $500,000 of machinery, $300,000 in crops/livestock, and $200,000 in savings/investments. Under these circumstances, an attorney could charge up to $37,500 in legal fees, which would be automatically approved by the probate court.

Probate fees work well for smaller/simpler estates. In fact, attorneys are sometimes justified in asking for more than the county rates to cover their fees. However, for farm estates, especially with significant real estate, the county probate rates can cause permissible legal fees to become very high.  For example, a large farm estate in Brown County with $5 million of land and $2 million of equipment/crops/livestock would result in permissible legal fees of $97,500.

To tackle the issue of high legal fees in farm estates, two strategies can be employed. Firstly, opting out of using the county rates to determine legal fees can be beneficial. The county rates represent the maximum fees that the court will approve but are not obligatory for attorneys to charge. For farm estates, billing on an hourly basis often leads to substantially lower legal fees compared to using the county rates. Therefore, when engaging an attorney for estate assistance, inquire about their estimated fees based on both the county rates and an hourly basis. If the hourly rate proves to be less expensive than the county rates, simply proceed with hiring the attorney based on their hourly rate. It's crucial to recognize that you always retain the option to request an attorney to bill on an hourly basis instead of using the county rates.

The second option is to avoid probate.  The same $5 million dollars of land that can cost $50,000 to probate can be transferred for a few hundred dollars using a transfer on death affidavit.  It is relatively easy to transfer any titled asset outside of probate.  Bank accounts, investments, vehicles and business entities can all be transferred using transfer on death or payable on death designations.  Especially for financial accounts, an attorney may not even be needed to transfer the asset to the beneficiaries.  Let’s consider this point using an example:

Farmer owns $5 million of land and $2 million of equipment and crops in Brown County, Ohio.  As already provided above, county probate rates would allow legal fees for probating the estate to be up to $97,500.  Before death, Farmer executes a transfer on death affidavit transferring his land at death to his children.  Farmer also sets up a single-member LLC for his farming operation and transfers his equipment and crops into the LLC.  He then makes his LLC ownership transfer on death to his children.  Now, when Farmer dies, his $7 million of assets can be transferred outside of probate with only a minimal amount of paperwork needed. 

By spending perhaps a few thousand dollars on a transfer on death affidavit, an LLC and minor paperwork at death, Farmer can save his heirs up to $97,500.  Avoiding probate is a great way to minimize legal fees for an estate. For more information on avoiding probate, see the Legal Tools for Avoiding Probate bulletin available at farmoffice.osu.edu.

Farm estates are not obligated to adhere to the county probate rates. In fact, it's possible to title many, if not all, assets in a manner that bypasses probate altogether. For assets that do undergo probate, it's advisable to inquire with the estate attorney about the fees based on both the county rates and an hourly rate. While some extensive and intricate farm estates may still incur substantial legal fees even if probate is avoided and hourly rates are applied, for many farm estates, the legal fees could be significantly lower than those dictated by the county rates.

The U.S. Department of Agriculture Agricultural Marketing Service (USDA) is asking the agricultural community to weigh in on a new program aimed at the voluntary carbon market in the U.S.  The agency has published a Request for Information seeking input on what the agency should consider in developing rules for the new “Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Program.”  The purpose of the new program, created by the passage of the Growing Climate Solutions Act last year, is to facilitate farmer, rancher, and private forest landowner participation in voluntary carbon markets by: (1) publishing a list of widely accepted protocols designed to ensure consistency, reliability, effectiveness, efficiency, and transparency of voluntary credit markets; (2) publishing descriptions of widely accepted qualifications possessed by covered entities that provide technical assistance to farmers, ranchers, and private forest landowners; (3) publishing a list of qualified technical assistance providers and third-party verifiers; and (4) providing information to assist farmers, ranchers, and private forest landowners in accessing voluntary credit markets.

Farmers haven’t engaged in the voluntary carbon market to the extent some predicted several years ago, when “carbon agreements” began circulating through the agricultural community.  A carbon agreement is a private  contract that compensates a farmer for adopting practices that sequester carbon, with one ton of sequestered carbon creating a “carbon credit.”  Those who pay farmers for the carbon credits can retain the credits or trade the credits through a carbon market.  The owner of the carbon credits can use the credits to offset their greenhouse gas emissions, with the goal of reducing their “carbon footprint.”

According to USDA Secretary Vilsack, “high-integrity voluntary carbon markets offer a promising tool to create new revenue streams for producers and achieve greenhouse gas reductions from the agriculture and forest sectors.  However, a variety of barriers have hindered agriculture’s participation in voluntary carbon markets and we are seeking to change that by establishing a new Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Program.”  In its Request for Information, the agency seeks responses to eight questions:

Question 1: How should USDA define the terms “consistency,” “reliability,” “effectiveness,” “efficiency,” and “transparency” (see 7 U.S.C. 6712(c)(1)(A)) for use in protocol evaluation?

Question 2: What metrics or standards should USDA use to evaluate a protocol's alignment with each of the five criteria to be defined in Question 1? What should USDA consider as minimum criteria for a protocol to qualify for listing under the Program?

Question 3: In general, after a new protocol is published, how long does it take for a project to use the protocol and be issued credits ( i.e., what is the lag time between protocol publication and first credit generation)?

Question 4: Which protocol(s) for generating voluntary carbon credits from agriculture and forestry projects should USDA evaluate for listing through the Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Program?

Question 5: Additional information for any protocol(s) identified under Question 4.

Question 6: How should USDA evaluate technical assistance providers (TAP)? What should be the minimum qualifications, certifications, and/or expertise for a TAP to qualify for listing under the Program?

Question 7: Should the qualifications and/or registration process be different for entities and individuals that seek to register as a TAP?

Question 8: What should be the minimum qualifications and expertise for a third-party verifier to qualify for registration under the Program?

The agency will accept comments on the questions until June 28, 2024.

Part of a broader policy initiative

USDA announced the Request for Information on the same day that Secretary Vilsack, Energy Secretary Granholm, and Treasury Secretary Yellen, published a Joint Statement of Policy and Principles for Voluntary Carbon Markets, which outlines seven principles for the government’s approach to advancing “high-integrity voluntary credit markets,” summarized in a White House Fact Sheet:

1. Carbon credits and the activities that generate them should meet credible atmospheric integrity standards and represent real decarbonization.
2. Credit-generating activities should avoid environmental and social harm and should, where applicable, support co-benefits and transparent and inclusive benefits-sharing.
3. Corporate buyers that use credits should prioritize measurable emissions reductions within their own value chains.
4. Credit users should publicly disclose the nature of purchased and retired credits.
5. Public claims by credit users should accurately reflect the climate impact of retired credits and should only rely on credits that meet high integrity standards.
6. Market participants should contribute to efforts that improve market integrity.
7. Policymakers and market participants should facilitate efficient market participation and seek to lower transaction costs.

The recent USDA announcements once again suggest that there are many issues for farmers considering engaging in the carbon market.  Caution is usually warranted when dealing with a new, developing market.  For farmers who do want to enter into the carbon market, be sure to refer to our posts on Carbon as a commodity for agriculture? and Considering carbon farming? Take time to understand carbon agreements.  The Farmers Legal Action Group also has an excellent publication on Farmers Guide to Carbon Market Contracts in Minnesota, also useful for Ohio farmers.

Updated February 2025

The poison hemlock popping up across Ohio and the questions we’re receiving in the Farm Office both signal that the high season for “noxious weeds” has begun. Ohio has several statutes and regulations intended to curtail the spread of the invasive and potentially harmful weeds we refer to as noxious weeds.  The most common question we’re hearing is this:  if there is a weed problem spreading onto or around my property, what can I do about it? 

There are several answers to this question, and the first is to have a civil discussion with the landowner or agency responsible for the property, alerting them to the problem.  Sometimes that party simply doesn’t know about the weeds or doesn’t know how to remedy the problem.  If the neighborly discussion strategy fails, then the legal answer to the question depends upon two factors:  1) whether the weed is one named in the law or on the “noxious weeds” list, and 2) the location of the weed.

1. Does the law apply to the weed?

There are two ways Ohio noxious weeds law would apply to a weed situation. One way is if the law specifically refers to the weed.  For example, one law specifically names wild parsnip, wild carrot, oxeye daisy, and wild mustard. The second way is if the law refers generally to noxious weeds, which applies to weeds named on Ohio’s noxious weeds list.  The Ohio Department of Agriculture has the responsibility of identifying and maintaining a list of noxious weeds—that list is in Ohio Administrative Code 901:5-37-01 and includes the following:

• Shatter cane (Sorghum bicolor)
• Russian thistle (Salsola Kali var. tenuifolia)
• Johnsongrass (Sorghum halepense L. (Pers.))
• Wild parsnip (Pastinaca sativa)
• Grapevines: when growing in groups of one hundred or more and not pruned, sprayed, cultivated, or otherwise maintained for two consecutive years.
• Canada thistle (Cirsium arvense L. (Scop.))
• Poison hemlock (Conium maculatum)
• Cressleaf groundsel (Senecio glabellus)
• Musk thistle (Carduus nutans)
• Purple loosestrife (Lythrum salicaria)
• Mile-a-mnute Weed (Polygonum perfoliatum)
• Giant Hogweed (Heracleum mantegazzianum)
• Apple of Peru (Nicandra physalodes)
• Marestail (Conyza canadensis)
• Kochia (Bassia scoparia)
• Palmer amaranth (Amaranthus palmeri)
• Kudzu (Pueraria montana var. lobata)
• Japanese knotweed (Polygonum cuspidatum)
• Yellow Groove Bamboo (Phyllostachys aureasculata), when the plant has spread from its original premise of planting and is not being maintained.
• Field bindweed (Convolvulus arvensis)
• Heart-podded hoary cress (Lepidium draba sub. draba)
• Hairy whitetop or ballcress (Lepidium appelianum)
• Perennial sowthistle (Sonchus arvensis)
• Russian knapweed (Acroptilon repens)
• Cypress spurge (Euphorbia cyparissias)
• Hedge bindweed (Calystegia sepium)
• Serrated tussock (Nassella trichotoma)
• Columbus grass (Sorghum x almum)
• Forage kochia (Bassia prostrata)
• Water hemp (Amaranthus tuberculatus)
• Spotted knapweed (Centaurea stoebe)

2.  What is the location of the weed?

There are several different noxious weeds laws, and which one applies depends on the location of the weed.  Here are the three most common locations we receive questions about:

• If a noxious weed is in the fence row on land outside of a municipality, Ohio’s line fence law addresses noxious weeds in ORC 971.33—971.35.  The law states that a landowner or occupant may give notice to an adjacent landowner or tenant to clear “brush, briers, thistles, or other noxious weeds” within four feet of the line fence on the owner or tenant’s side of the fence.  If the adjacent owner or tenant fails to do so within 10 days, the landowner or occupant may provide notice to the board of township trustees and the trustees must view the premises and determine if there is just cause for the clearing.  If there is, the trustees must “cause the weeds to be cut, by letting the work to the lowest bidder, or by entering into a private contract.”  The county auditor must assess the costs on the landowner’s property taxes.
• If noxious weeds, wild parsnip, wild carrot, oxeye daisy, wild mustard, or other harmful weeds are on private land beyond the fence row, a person may send written information to the township trustees of the weeds and where they exist.  The trustees must then notify the owner or about the existence of the weeds. The owner must either destroy the weeds or show the township trustees why there is no need for doing so.  If the owner does not take one of these actions within five days of the trustee’s notice, the township trustees “shall cause the weeds to be cut or destroyed and may employ the necessary labor, materials, and equipment to perform the task.” The county auditor must assess the costs on the landowner’s property taxes.
• If noxious weeds are along a public roadway, Ohio law requires counties, townships and municipalities to cut or destroy the noxious weeds every year between June 1 and 20, August 1 and 20, and if necessary, September 1 and 20, or whenever it’s necessary to destroy the vegetation to prevent or eliminate a safety hazard.  ORC 5579.04 and 5579.08. 

There are other laws that help us deal with the noxious weeds high season, and we review each of those in our law bulletin, Ohio’s Noxious Weeds Laws, in the Property Law Library on farmoffice.osu.edu.

Producers shipping certain types of cattle and bison across state lines might have to use electronic identification (EID or RFID) tags if a final rule developed by USDA’s Animal and Plant Health Inspection Service (APHIS) becomes effective. Federal funding is available to help producers obtain the EID tags.  But efforts are underway to stop the EID rule from taking effect.  As we’ve seen in the past, disagreements continue over animal traceability and EID mandates. Here’s an update on the current events surrounding the EID issue.

The APHIS final rule.  The final rule announced by APHIS on April 26, 2024 will amend the animal traceability rule enacted in 2013.  That rule requires “official identification” on certain cattle and bison moved in interstate shipment for the purpose of animal disease traceability. Under the rule, “visual” ear tags are a form of official identification, in addition to certain pre-approved brands and tattoos and group lots.

The new final rule, originally proposed in 2022, will expand the requirements for ear tags used as official identification.  For animals tagged after the rule’s effective date, the ear tags “must be readable both visually and electronically (EID).” The EID rule will continue to apply only to these types of cattle and bison when shipped across state lines:

• Sexually intact cattle and bison 18 months of age or older;
• Dairy cattle;
• Cattle and bison of any age used for rodeo or recreation events, shows, or exhibitions.

Effective date of the rule.  The EID requirement is not yet effective. The final rule will take effect 180-days after the rule was published in the Federal Register.  USDA published the final rule on May 9, 2024, making the effective date November 5, 2024.

Funding for EID tags.  Before APHIS finalized the rule, Congress approved funding to help producers voluntarily obtain EID tags, which cost around $3 each.  The Consolidated Appropriations Act passed in March of 2024 allocated $15 million for EID.  Ohio producers should contact the State Veterinarian’s office at the Ohio Department of Agriculture for information about the availability of free EID tags that comply with the official identification requirements.

EID bill in Congress.  A bill introduced on May 8 by Sen. Mike Rounds (R-SD) would counteract the APHIS final rule. The one-paragraph bill simply states:  “The Secretary of Agriculture shall not implement any rule or regulation requiring the mandatory use of electronic identification eartags on cattle or bison.”

Why the debate over EID?  Animal traceability has long been a controversial issue for the livestock industry.  APHIS and Sen. Rounds capture the two sides of the controversy well with their recent statements summarizing their efforts.  APHIS explains that “the most significant benefits will be enhanced ability to limit disease outbreak impact in the U.S., as well as maintaining foreign markets.”  On the other hand, Sen. Rounds states that “USDA’s proposed RFID mandate is federal government overreach, plain and simple. .. If farmers and ranchers want to use electronic tags, they can do so voluntarily.”

What’s next?  Given the slow pace of legislative activity in Congress, it’s unlikely that Sen. Rounds’ proposal will affect the November 5 effective date of the EID final rule.  Several associations have threatened to bring legal action against the rule, however, so it’s likely we’ll see litigation and other legal challenges.  As seems always to be the case with animal traceability, we still don’t yet know what the future holds.