"A whopping 80 percent of adults have done nothing to protect their legacy property," said Tassma A. Powers, an attorney at Schwartz, Bon, Walker and Studer, LLC located in Casper, WY. Powers was a featured speaker at the 18th Annual WY Women's Ag Symposium on Nov. 18, and she offered some words of advice on estate planning and where to begin.
"Estate planning is a lifetime process; you're never done until you pass away," she said. "With proper planning, you can accomplish four important things. First, you can control your property while you're alive and well. Second, you can take care of yourself and your loved ones, if you become disabled. Third, you can give what you want, to who you want, when you want. Fourth, you can do so while avoiding costly legal fees and taxes."
Sound too good to be true? Getting started in estate planning can be a daunting task, but avoiding the process can be catastrophic to the ranch and the future of the operation.
"Doing nothing means you have no control," Powers said. "Intestate means that state laws will dictate where your assets go. If you're okay with letting the chips fall where they may, then do nothing. But, you may not like where your life's work ends up."
She said a will can be as simple as a hand-written letter, signed, dated and labeled "Will" at the top, kept in a place where heirs can find it following a death. A typed will needs to be witnessed by two individuals and signed by the writer and the witnesses. However, a will doesn't necessarily protect the ranch.
"Having just a will practically guarantees probate with a court proceeding that can be quite costly, quite public and quite lengthy," she explained. "A will alone isn't sufficient. You need a trust, which is a legal relationship - a special kind of contract - designed to control property management and distribution. In this contract, there is a trust-maker, who is a grantor or settler who creates and funds the trust. There is a trustee, who holds the property and administers the trust, and there is a beneficiary, who receives the benefits of the trust. The same person can serve in all three roles."
It's important to have a clear understanding of the trust created, and it's important to note that a trust doesn't have to be prorated. A host of things can be included in a trust such as: homes, ranches, income-producing property or real-estate, recreational property and equipment, stocks and bonds, oil, mineral and gas rights and bank accounts.
"Wills and revocable living trusts enable sophisticated planning and protection from creditors, predators and estate taxes," she added. "In addition, a limited liability company (LLC) is highly flexible and holds many benefits for small business owners including farmers and ranchers. An LLC can be thought of as a cross between a partnership and a corporation. Organizing the family ranch into an LLC will provide present benefits, expand possibilities to lower estate taxes and assist in equalizing gifts among heirs."
Powers believes in the mantra, "Fair isn't always equal, and equal isn't always fair," and she has seen these tough realizations far too many times in her office when heirs review wills and trusts.
"Beneficiary designations are very popular," she said. "They trump a will or trust. The transfer of assets occurs at death, but there could be court interference if the beneficiary is incapacitated, a minor or dies first or at the same time. This may result in an unbalanced estate that will leave no money for a funeral, burial and estate taxes, with no predator protection. A formal document is useful until death, but only transfers property you own at death. It doesn't affect jointly-owned property, beneficiary designations or life insurance policies."
One thing Powers brought to attention was the Democrats' proposal to drop the estate tax exemption from $5 million back to $1 million, which could significantly impact succession planning and transitioning the ranch for many business owners. She recommended folks pay close attention as this issue progresses and don't wait until it's too late to get a proper plan in place.
"Like it or not, doing nothing is the worst possible thing you can do for the future of your ranch," Powers said. "Contact a professional and get your life's work squared away for the next generation."