Once a valid trust is established, the trustee has a fiduciary duty to ensure that the settlors (farmers) assets are administered according to her wishes and that the trust assets are managed in the beneficiaries best interests.7 For some types of trusts, like a Revocable Living Trust, the farmer can be the trustee and manage the assets during her own life. Once the assets are distributed to the beneficiaries, both transfer tax and creditor protection are lost. See Gary A. Hachfeld, et. The operative transfer of the deedfor an unmarried property ownershould read as follows: THIS DEED, made this 21st day of May, 2021 , by and between Robert Andrew Branan (hereinafter Grantor), and Robert Andrew Branan, as Trustee of the Robert Andrew Branan Revocable Trust, a revocable trust agreement executed in North Carolina with an address of address of Trustee (hereinafter Grantee). The trust is a creation of a person who owns property, called a settlor or grantor. al., Revocable Living Trusts, University of Minnesota Extension Estate Planning Series (2016), http://www.extension.umn.edu/agriculture/business/farm-transfer-estate-planning/docs/estate-planning-series5-revocable-living-trusts.pdf. al., Revocable Living Trusts, University of Minnesota Extension Estate Planning Series (2016), http://www.extension.umn.edu/agriculture/business/farm-transfer-estate-planning/docs/estate-planning-series5-revocable-living-trusts.pdf. This means the settlors (farmers) wishes only go into effect upon the farmers death. A trust requires four basic elements: a trustee, a trust document, trust property and beneficiaries. As their names suggest, the difference between these trusts is that one type is revocable, meaning it can be changed, and the other type is irrevocable, meaning it can not be changed. A revocable living trust is created by the settlor during their lifetime and the settlor retains the power to destroy (revoke) the trust at any time during their life. http://www.extension.umn.edu/agriculture/business/farm-transfer-estate-planning/docs/estate-planning-series4-trusts-definitons-types-and-taxation.pdf. Charitable Remainder Trusts can be used together with other trusts, such as Revocable Living Trusts (RLTs) and Testamentary Trusts. B.J., October 2014, at 4,10. A grantor/trustee may use Grantors social security number in setting up the bank account on a revocable trust. This numberthe equivalent of a social security number for entitiesis presented to the bank for set up of a new account, in the name of the trust and trustee, with trustee as signatory on the account. In this scenario, no income taxes are due on this transfer, the assets are still in the farmers control, and they remain as part of the farm estate. Your trust(s) and/or will should be tailored to meet your farm transfer goals. When it comes to maintaining the farm over multiple generations, a trust is a tool that can keep the family farm in the family. This is referred to as funding a trust.5 Funding a trust must be done with the appropriate formal paperwork. It always seemed like we spent more time on repairs and maintenance of the equipment than harvesting crops. Cooperative Extension is based at North Carolina's two land-grant institutions,

Revocable Living Trust (RLT): Can be used during life and at death of the farmer; allows management of the farm in case of disability or incapacity; can allow opportunity for farming heir to buy into the business; flexible and can be amended in certain circumstances before the farmers death; avoids probate for assets placed in the trust; the value of the assets in RLT remain in the value of the farmers estate for estate tax purposes. The beneficiary named by the grantor derives the benefits from the trust, typically in the form of income or future ownership of trust assets. The assets of the trust are managed by the trustee, named in the trust document. See Uniform Trust Code, Section 402, Requirements for Creation, http://www.uniformlaws.org/shared/docs/trust_code/utc_final_rev2010.pdf. al., Trusts: Definitions, Types & Taxation, University of Minnesota Extension Estate Planning Series (2016), http://www.extension.umn.edu/agriculture/business/farm-transfer-estate-planning/docs/estate-planning-series4-trusts-definitons-types-and-taxation.pdf. The grantor of a dynasty trust usually has three objectives: to have control for the longest time allowable by law; to protect the assets from federal transfer taxes for the longest possible period while making the assets available for future generations; and to protect the trust assets from potential claims brought by a beneficiarys creditors. Said Trust is evidenced by a Certificate of Trust recorded at Book 123 Page 456 of the Orange County Registry, North Carolina. If the property is owned by one of a married couple (i.e. For an irrevocable trust, the trustee must secure an Employment Identification Number (EIN) from irs.org. http://www.elderlawanswers.com/what-is-a-miller-trust-14945, https://www.estateplanning.com/Understanding-Charitable-Remainder-Trusts, https://www.extension.iastate.edu/agdm/wholefarm/html/c4-59.html, https://www.estateplanning.com/which-type-of-trust-protect-against-creditors/, Can provide an income stream and donation to charity (Charitable Remainder Trust), Provides assets to beneficiaries immediately, Assets in an ILT are gone for good and cannot be reclaimed, Farmers can no longer control how assets in an ILT are used, Farmers will get no income from assets in ILT, in general (unless the ILT is also a Charitable Remainder Trust), May require the preparation of additional tax returns, such as a gift tax return and an annual trust income tax return. The basic characteristics and the pros and cons of each type are discussed more fully below. The trustee may be a person or a non-human entity. Instead, attorneys can provide information about pros and cons of different options, advice about what is common versus unusual, fair versus unfair, etc. 20. They are called Revocable Living Trusts (RLTs) and Irrevocable Living Trusts (ILTs). Funding the trust with fungible property (cash) is accomplished by opening a bank account in the name of the trust and funding that account. A trustees duty is to continue with the vision the grantor had when they put the trust in place. Placing assets into an ILT is final; farmers no longer own the assets, and farmers retain no decision-making power over the assets.15Additionally, creating an ILT may require the preparation and filing of additional tax returns upon the creation of the ILT and throughout the administration of the ILT.

19. A trust must have ascertainable individuals to ultimately direct assets to (for example, a farmers spouse or children). N.C. The trust instrument is the written document creating and detailing the terms of the trust, how property therein is to be managed, how its income is distributed, and the directions and conditions for distribution of assets. Depending on the type of trust, a trustee can also be the owner of the trust property, meaning farmers can place their own property in a trust and then name themselves as the trustee. Depending on the goals of and family variables faced by the parent or other person who created the trust, beneficiaries might receive their land title outright following the death of the trust creator, or receipt of title to the land may be delayed and they receive a beneficial income interest from the land. If the property was purchased by a married couple and is considered joint property (at least in common law states), and the trust is not a joint trust, the spouse is signing and relinquishing their rights in the property to the trust (the relinquishing spouseas a survivormay of course be made the income beneficiary of the trust. Within the category of living trusts, there are two main types of trusts that are particularly relevant to farm transfer. Cooperative Extension prohibits discrimination and harassment regardless of age, color, disability, family and marital status, gender identity, national origin, political beliefs, race, religion, sex (including pregnancy), sexual orientation and veteran status. In previous years, ILTs were sometimes used by farmers to protect assets from Medicaid spend-down requirements.

A trustee can also be an institution, like a land trust or a bank trust department. However, the prudent investor rule may be modified and restricted by the language of the trust,9 and indeed this is often done by trusts created to manage distribution of farm and forest land, to relieve the trustee of the obligation to liquidate property in the face of an attractive offer. Since a will directs the court how to dispose of your assets at death, this provision will act as a catch-all and direct property still titled under your name to pour into the trust, normally to take advantage of an estate tax exemption of the first spouse to die. To ensure farm transfer goals are met, trusts should generally be used in combination with at least the following: a will, long-term health care planning, life insurance, and tax planning for both estate taxes and gift taxes.1 Note that certain trust arrangements may impact a farmers Medicaid eligibility. If the family is planning for future generations, wishing to transfer farm income to children and the farmland to grandchildren, for example, the use of a trust to protect the family farm will work. Trust beneficiaries can also be non-family members or institutions (like a farm advocacy nonprofit or a land trust). The person who creates the trust is called the trustmaker, grantor, settlor, or trustor. The person charged with managing assets funded to the trust is called a trustee. The revocable trust transfers assets into a trust, but the grantor maintains control over the assets. ", Information in our blogs is very general in nature and should not be acted upon without first consulting with an attorney. 10. Guide to Wills and Estates, Fourth Edition: Everything You need to Know about Wills, Estates, Trusts, and Taxes, American Bar Association (2013), http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_5.authcheckdam.pdf ; see Christopher R. Dang, et. Second, state programs may require steps to continue a real property tracts enrollment after the property is transferred to the trust (revocable or irrevocable). 8. Investing in strategic estate planning up front is often far less costly and disruptive to a farm family than handling these issues after a disability or death. A trust could be described as a custom-designed bucket that holds and takes care of your assets during life and distributes them after death. This is referred to as funding a trust., Funding a trust must be done with the appropriate formal paperwork. Some lawyers have drawn up their own preferred documents and adapted them to the clients needs. For farmers who wish to simultaneously donate to charity, retain an income stream during their lives, reduce income taxes, and reduce estate taxes for heirs at death, a Charitable Remainder Trust is an option to consider.16 This type of trust is a type of Irrevocable Living Trust that transfers the farmers assets to a charity while allowing the farmer to both stay on the land and receive income until death. Washington has extended this period to 150 years. A quitclaim deed (often mistakenly referred as a quickclaim deed) is simply a transfer of all interest a title holder has in the real property, without any warranty to defend the title to the property in event another person claiming title comes forward. NC State University and NC al., Distribution of Estate Assets, University of Minnesota Extension Estate Planning Series (2016), https://www.extension.umn.edu/agriculture/business/farm-transfer-estate-planning/docs/estate-planning-series3-establishing-a-will.pdf. 1. Reference: Ag Decision Maker (Dec. 2020) Trust as an Estate Planning Tool, *All other areas (877) 545-8828*By Appointment Only, 1601 Rio Grande, Suite 550Austin, Texas 78701Phone: (512) 480-8828Email: info@texastrustlaw.com. Learn how to use a will as part of a successful farm transfer plan. Alternatively, a farmer can name a third party to immediately serve as the trustee, and this trustee can be a trusted friend or advisor. Estate planning involves setting farm transfer goals and using legal tools and strategic planning to meet those goals. In order to transact business where the land is concerned, vendors such as banks and timber companies will likely require evidence of the trust (which is a private document) recorded in the chain of title.