Q I have recently inherited a farm from my father and I am farming it part-time. I am married with two young children. I do not have a will at present and do not know how to go about preparing one given that my children are so young. Do you have you any advice?
A If you die without making a will the law states that your spouse is entitled to your entire estate if there are no children. If there are children then your spouse is entitled to two-thirds and one third goes to your children.
However, a will should be made to provide for circumstances where both parents die, leaving a farming business to be run and young children to be taken care of. The most common way of providing for these circumstances is for each parent to make a will leaving their entire estates to each other; with provision for the assets to be held on discretionary trust for the benefit of children until they reach a certain age, normally that’s 21.
A discretionary trust works so that the assets are held by the trustees for the benefit of the persons who are ultimately intended to own the assets. The trustees themselves have no right to any of the assets, but have a general power, subject to whatever rules are written into the trust to give the assets to the children as and when and in whatever amounts the trustees see fit.
It is important to note that none of the children would have an absolute right to any part of the trust fund, the only interest the children would have is the right to be considered favourably for an appointment of property from the trust fund.
While it is up to the trustees to decide who gets what, you can have your views known in two separate ways as follows:
Letter of wishes – this is not legally binding but is intended to guide the trustees on how you would like the assets to be ultimately split. Write legally binding rules into the trust document – such rules should include a date by which the assets must be paid out of the trust and the trust shut down, otherwise there is a danger that the trustee’s could keep power over the assets indefinitely. It is important that these rules are not so specific to make the trust inflexible. For example, if the person who set up the trust provided that the farm should not be sold but instead passed on the children when they reach 21 years of age, the children might miss out on an opportunity to increase farming scale by selling some land as sites and investing the money back into buying more agricultural land.
Q I have recently inherited a farm from my father and I am farming it part-time. I am married with two young children. I do not have a will at present and do not know how to go about preparing one given that my children are so young. Do you have you any advice?
A If you die without making a will the law states that your spouse is entitled to your entire estate if there are no children. If there are children then your spouse is entitled to two-thirds and one third goes to your children.
However, a will should be made to provide for circumstances where both parents die, leaving a farming business to be run and young children to be taken care of. The most common way of providing for these circumstances is for each parent to make a will leaving their entire estates to each other; with provision for the assets to be held on discretionary trust for the benefit of children until they reach a certain age, normally that’s 21.
A discretionary trust works so that the assets are held by the trustees for the benefit of the persons who are ultimately intended to own the assets. The trustees themselves have no right to any of the assets, but have a general power, subject to whatever rules are written into the trust to give the assets to the children as and when and in whatever amounts the trustees see fit.
It is important to note that none of the children would have an absolute right to any part of the trust fund, the only interest the children would have is the right to be considered favourably for an appointment of property from the trust fund.
While it is up to the trustees to decide who gets what, you can have your views known in two separate ways as follows:
Letter of wishes – this is not legally binding but is intended to guide the trustees on how you would like the assets to be ultimately split. Write legally binding rules into the trust document – such rules should include a date by which the assets must be paid out of the trust and the trust shut down, otherwise there is a danger that the trustee’s could keep power over the assets indefinitely. It is important that these rules are not so specific to make the trust inflexible. For example, if the person who set up the trust provided that the farm should not be sold but instead passed on the children when they reach 21 years of age, the children might miss out on an opportunity to increase farming scale by selling some land as sites and investing the money back into buying more agricultural land. 
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