Author’s note: I am not a lawyer and do not give legal advice. This article is to help you get ready for effective communication with your lawyer.
Find a lawyer you like. Ask other farmers which professionals have served them well. You can also go to the Canadian Association of Farm Advisors directory to find great advisers who care about agricultural families.
Many lawyers now work with virtual meeting platforms and you can sign documents digitally, so there is no excuse for not finding the best fit. You will need three appointments: draft, review, sign.
Find a binder.
Grab a pad of notepaper or open a new Word document on your computer.
Who do we want to be our executor? Do they live in our province? Would they work well with our accountant? Will the executor keep track of details and inform the family with great communication? Make sure you confirm your executor wants the job.
When my father was showing signs of memory loss, yet still deemed competent by his lawyer, we were able to simplify the number of executors and ensure the process would be smoother for execution. Wills need to be updated whenever there is a significant change in your intentions or a family event such as death, divorce or purchase of major assets.
Do you have a power of attorney? It may be your spouse, but you may also want an alternate. We have included our successor son as our power of attorney. This came in real handy when my husband’s accident in 2017 landed him in trauma care during harvest.
Do you have special possessions you wish to pass on to certain family members or friends? I have asked, and no one wants my stuff. This may surprise you when you start asking.
Charities and gifts. If you have a lot of charities who appreciate your gift, research the work of Abundance Canada who make giving easier.
In conflict resolution, we talk about being clear with your intentions. In some wills, it is appropriate to write out why certain decisions have been made. You can also write out your “script” to use as the pre-work in your family meeting when you sit down as a family to explain your will.
Open communication is clear with setting expectations. Being clear is kind. Some farm families avoid making a will to avoid family conflict. The good news is: Having a third party facilitate this discussion will help you get harmony through understanding. In July 1998, I had the opportunity to share my expectations with my farming parents and my farming brother and my non-farm siblings. This event was attended by a tax specialist and the founders’ accountant. When my mom died unexpectedly six weeks later, it was helpful to have the conversations of the family meeting fresh in mind.
I encourage you to share your will openly with your family; this is 2023, not 1973. Secrets are very damaging and traumatizing to family dynamics.
Farmers with young children aren’t getting wills done. Expensive? No. Hard to pick guardians of your precious young children? Yes. We chose non-family members as guardians for our children – and when they became teens, we let them choose who they would want to live with if we died in their teen years. Wills can be updated with codicils, which are like a type of amendment, so get the basics done now. Make sure the guardians agree to the responsibility you are giving them. A recent agriculture financial survey found 58% of farmers under age 40 had wills. I suspect this is due to uncertainty of who to choose as guardians.
This is a universal issue confirmed in February when I spoke to a group of Mexican farmers and business people in Cuauhtemoc. While you are jotting down your thoughts and wishes, have private conversations with each of your adult children and your spouse. Ask, “While we are preparing our estate plan, I am curious to know, what does fairness look like to you? What are you expecting from our estate?”
Many young farmers want an opportunity to have equity long before the founders' death. They also realize the hard work of their parents and want the founders to enjoy the fruits of their labours and live a decent life, to have time to travel and have less responsibilities in the business. These conversations are not nightmares; they can be life-giving, once expectations and timelines are clear.
I write this article after a good friend passed away. I reflect on the gifts she gave me with warm hands, particularly her laughter, her support of our daughter and her quilts. Many of you are hanging on to wealth you cannot enjoy that would really give a leg up to the next generation. My father-in-law and mother in-law wisely gave land to their non-farm heirs when we as the farm couple bought farm assets. We as the farm heirs and successors were given first right of refusal to buy the land.
People think this is difficult to do now, as land is so expensive, but there are still ways to give assets, money, small parcels of land to heirs when the gift will be a real benefit to the receiver. You can also think about long-term lease agreements with rental of farmland back to the farm successor. Each situation needs discussion, sharing of intention and vision for the farm to stay intact.
Digital calendars are your friend, as is the old-school paper calendar on the kitchen wall. Book an appointment with your lawyer today. April is “Wills Month.”
I have a basket of important documents on my desk waiting to be updated in my life binder. Life on the farm is a journey and things are constantly changing. The best gift we can give our families is open, loving communication with certainty of timelines and agreements. Execution of my father’s estate was not a nightmare but a great lesson on having an excellent lawyer and documents readied before the death happened.
We all are longing for the currency of time. We all get to choose how we spend our time and get our affairs in order.