Are you a first-time owner of farmland in Kansas? Whether you have inherited the farmland or are an investor looking to diversify your assets, you need a plan to manage this new property as a revenue source.

As a new land owner, if you have no interest in managing the farmland yourself, you can contact local or regional land management companies to help you with the management process. These companies specialize in locating area farmers to actively farm your land, negotiate lease terms, and essentially act as the landlord in your absence. This is a viable, stress-reduced option for some individuals, especially investors who may not depend on the annual revenue from the farmland. However, you will want to thoroughly understand what the management fees will cover and how much they will impact your profits.
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If you feel confident in your knowledge of the area where your property is located and are comfortable negotiating directly with farmers, you may want to handle your own lease agreement and landlord responsibilities.

As the land owner, if you don’t want to come up with the cash for operating expenses or are unable to do so and prefer instead to just have a guaranteed income annually, it might be desirable to establish a cash lease with your farming tenant. The cash lease is a way to reduce your risk, while guaranteeing you receive a set income. You won’t be responsible for any of the tenant’s expenses related to the crop planting and harvest. The downside is that you will also not be entitled to any of the profits from the crop.

A cash lease should be in writing and should include the names of the parties, term of the lease, the property description, the lease rate per acre, payment schedule, renewal terms (if any), and party signatures. We also recommend including a clause regarding workmanship (including noxious weed control), government payment splits (if any), land use, sublet provisions (if any), pasture use (if any) and specifications regarding any easements, minerals, or wind leases pre-existing on the property. There are additional provisions that should be included but may vary based on your individual circumstance, the type of farmland you own and its location. As an absentee land owner with a cash lease, you generally will not be considered to be in the business of farming for tax purposes. Check with your accountant to verify your tax situation prior to negotiating and signing a lease.

If you are more comfortable with risk and want the chance to share in a larger profit from the crops grown on the land, you should consider using a crop share lease. A typical Kansas crop share lease holds the landlord responsible for 1/3 of all expenses on the crop and the tenant is responsible for the remaining 2/3 of expenses, however those ratios are negotiable. Expenses may include the cost of fertilizer, lime application, herbicides, etc. The crop yield is split in a similar manner, with the landlord and tenant receiving the same ratios of yield as they contribute to the expenses. The remaining lease provisions will be very similar to the cash lease. Again, additional provisions are necessary to include in a crop share lease agreement that protects you and your tenant, but your unique situation will influence what provisions will need to be included. Although you can receive a larger annual profit by utilizing a crop share lease, you will bear the risk of having a year(s) with complete crop failure and no income (in the absence of crop insurance).
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If you have questions about a Kansas farm lease, contact Davis & McCann, P.A., Dodge City, Kansas at 620-225-1674. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Special Needs Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate, 1031 Exchanges, and related matters.

Q:       Our son is leaving for college this week. He has signed a Health Care Power of Attorney, Durable General Power of Attorney and a HIPAA release. Is there anything else legally that we need to do before he leaves?

A:       First of all, congratulations on your son’s new adventure. Sounds like he has received some solid advice even before he moves on to pursue his higher education.

It is great that your son completed the important legal step of executing Powers of Attorney and a HIPAA. These documents likely will be his most utilized legal instruments until he graduates.

Unless your son feels extremely comfortable keeping his signed estate planning documents with him while away at college, I would recommend that he place the originals of these documents in your family bank box or fireproof safe. The originals should always remain in a safe location and only copies should be provided to others, barring a few exceptions. However, it is important that he have access to a copy of the documents while away from home. I also would recommend that he provide a copy of these documents to anyone he has named to act as his agent under the Powers of Attorney. Further, I suggest that he and his agents all keep a scanned copy of these documents on their phones for easy access in the case of an emergency. Most attorneys routinely keep a hard and/or an electronic copy of these papers in their client files that can be sent to doctors, hospitals, etc. if a client needs them, which will give you another way to access the documents if you do not have them. However, emergencies do not always happen during business hours and so it is a good idea to try to keep a copy close-at-hand.

If your son has a chronic health condition that will require constant monitoring and checkups while he is away from home, your son may want to provide a copy of his Health Care Power of Attorney and HIPAA to the medical providers at his new location. This will expedite communication between his new health care providers and his appointed agents in the event of an emergency.
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If you have questions, about any estate planning matter in Kansas, contact Davis & McCann, P.A., Dodge City, Kansas at 620-225-1674. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Special Needs Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate, 1031 Exchanges, and related matters.

Q:        I have changed my mind about who I want to serve as my Executor. How complicated is it to make that change in my Will?

A:        As long as you are mentally competent, you can revise your Will in any way you wish. We recommend the use of a Codicil when a person wants to make minor changes to an existing Last Will and Testament. A Codicil is a short legal document that serves as a type of addendum to your existing Will. Generally speaking, this is a quick and easy change.

The language contained in your Codicil supersedes the language contained in your original Will, replacing the old language. The Codicil is executed in the same manner as your original Will, in that you sign the document before a notary public and two disinterested witnesses. Your original Codicil and Will should always be stored together in a fire-proof location. In the situation you describe, a Codicil would be the most cost-effective choice to achieve your desired change. If however, you decide to revise multiple provisions within your original Will, you may want to consider simply executing a new Last Will and Testament, as a Codicil under these circumstances would likely cost the same as a new Will and executing a new Last Will and Testament would be clearer and more concise. You will also want to keep in mind that when you have a Will-based estate plan your Last Will and Testament and any Codicils will be filed of public record. Therefore, if you would not want someone to know about a change that you made, you might decide it is more prudent to simply sign a new Last Will and Testament rather than have the changes that you made to your planning filed with the Court.
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If you have questions, about any estate planning matter in Kansas, contact Davis & McCann, P.A., Dodge City, Kansas at 620-225-1674. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Special Needs Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate, 1031 Exchanges, and related matters.

Q:  What happens if my husband and I can’t agree on what we want in our Will or Trust? Do we need to have separate lawyers prepare our estate planning documents?

A:  Maybe. When couples choose to do estate planning with one attorney, complications can arise when the couple disagrees with how their estate plan should be drafted. If the disagreements are minor and the couple is otherwise amicable, you can have the same attorney work on a mutually agreeable resolution and draft all your estate planning documents. However, if the differences of opinion remain substantial and/or the couple has an adversarial relationship, it may be prudent for each individual to seek independent legal counsel. This will ensure that both husband and wife have received fair, unbiased advice and their estate planning reflects their individual wishes. Please be aware, though, that spouses have certain property rights that can only be waived if they have a prenuptial agreement or consent to one another’s planning.

Here are just a few of the common points of contention between couples we have encountered over the years:

1. One spouse wants to leave a substantially larger (or smaller) inheritance to one or more of their children than does the other spouse. This is often common when a child is involved in a business venture with the parents and the other children are not.
2. One spouse doesn’t want the surviving spouse to have control over their assets in the event of a remarriage.
3. The spouses disagree on who would be the best conservators/guardians for their minor children.
4. One spouse has “family property” he/she inherited from his/her family and wants said property to remain in their bloodline rather than go to their surviving spouse.
5. A difference of opinion on how to treat “his, her and our” children is very common in secondary marriages.
6. Adult children from a first marriage often want their parent to severely limit any inheritance to a stepparent.
7. If a child has an addiction, is financially irresponsible, or has a troubled marriage/relationship, spouses are often at odds about what, if anything, the child should receive by way of inheritance.

​Please remember, for every problem, there exists a solution. Your willingness to compromise on non-essential items and to have an open mind are essential to a successful plan. Additionally, the experience and expertise your estate planning attorney brings to the table also is a key element. If you have questions, about any estate planning matter in Kansas, contact Davis & McCann, P.A., Dodge City, Kansas at 620-225-1674. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Special Needs Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate, 1031 Exchanges, and related matters.