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Medicare Planning and Farm Assets

The best bet to make sure that your farm assets are passed to the next generation and you are able to meet your medical needs as you age is to buy a crystal ball and determine when you will need nursing home care for you and your spouse, set aside five years’ worth of care (accounting for social security and fixed income streams during that time period, inflation in cost of care and medicine) for each of you and the spouse and give the rest away. This should provide five years’ worth of “Self-pay” for each person and when the 5 years are up, they can apply for title 19 support for care. You can order your crystal ball at www.amazon.com/tktk.

Mine has been on back order for quite some time. Failing that, we have several principles we can consider for Medicare planning and farm assets. These are different aspects that need to be considered when contemplating long term care.

Spend down.

The general rule is that you need to apply for the spouse in the facility to split the facility bound spouse assets with the spouse that remains out of living in the community. The yearly amount changes as to what exactly the community spouse can have for assets, but the spouse “in the wild” can retain a certain value of assets as theirs to live upon outside the care facility. At a minimum, the spouse in the community will have around $125,000 attributed to them that does not have to be spent down.

Once the excess resource amount is identified, spend it down. Resources can be used to benefit either the nursing home resident or the spouse in the community. Funeral plots and plans, tires, stoves, chairs, beds, roof repair are all valid spend downs. Encourage the community spouse not to skimp on essentials or amenities that they need to function, remembering that their long term partner in crime is no longer available to provide assistance to them.

Understand that once a spouse is made eligible for title 19 assistance, further income or asset collections in the hands of the other spouse are not eligible to be considered a spouses resource for care. That means that a wind fall post title 19 will not cause problems for the spouse in the facility. The “tab” that Title 19 is running will continue to accumulate and become payable when both spouses are deceased.

Specifically turning to Farm Assets. The residence and the surrounding farm ground is exempt from the spend down process. Non continuous chunks are not.

The forty 2 miles from the house is not as valuable as the 40 that touches the homes 120 acres. Consider marshalling assets and trading, swapping, acquiring adjacent ground to create a larger exempt chunk of property.

Gift and Wait.

Gifts made five years prior to the application for title 19 assistance do not count against the applicant. Gifts made within the 5 year period do count against the applicant and can make the applicant ineligible for assistance.

Example

Retiring farmer gave a $500,000 farm to her son 4.5 years ago, prior to entering a

nursing home. She has paid for her nursing home care since then, but

is now out of money. Will she be eligible for Medicaid?

Since the son is not disabled and there is no other exception to the

transfer of assets rules that apply, the retiring farmer will not be eligible since the

gift was within the five-year look-back period prior to her need for

Medicaid.

What is the solution? Son could pay for farmer’s care for another six months, then the

remaining part of the gift could be kept by him without affecting retired farmer’s eligibility. Not only that, but no state agency will get the chance to wax poetic on what the sale price was and whether it was fair in terms and prices.

So, what happens when the kid doesn’t pony up or give back the assets. The gift giver will need a hardship exemption. .A hardship exemption allows resident to be eligible despite a transfer that causes a penalty if:

  1. Penalty would deprive resident of necessities that would endanger

her life.

  1. Resident has exhausted all means to recover the resource, including

legal remedies.

  1. Remaining resources, excluding home, household goods, one vehicle and $4,000 in burial funds, are less than the monthly average cost of facility services.

No hardship waiver will be granted if resource was transferred to person handling the financial affairs of the resident, or to the spouse or children of the person, unless payments cannot be recovered from that person.

Turning back to our example, Retired farmer writes a letter to son and asks for the ground back. If it was a valid gift, that is all the effort retired farmer needs to make. The retired farmer then applies for a hardship waiver. However, the state will likely seek contribution from the son for the value of the asset. The son is foolish not to cover the short fall and now gets to interact with the state agency, which could lead to elder abuse charges in some circumstances.

Life Estates

Life Estates are an asset available to pay for care. For best results, dispose of them prior to applying for Medicare/Title 19. Sell the life estate through a real estate agent or auctioneer. If auctioning an asset, you must document attempts to sell at fair market value and that the auction is properly advertised to the public.

Otherwise, hire an actuary or other disinterested, knowledgeable third party to determine the value of the life estate and sell it at that value after obtaining the consent of DHS.

You can assert the homestead is the life estate and then the life estate value will be collected at time of death if the applicant is otherwise eligible.

Land Contracts

For Medicaid purposes, the seller’s interest in a contract is considered an asset.  The contract can be mortgaged or sold so it has value   Medicaid considers the land contract as personal property. The value of the contract is determined by identifying the value of the contract on the day it was signed and subtracting payments made on the contract, loans on the contract and valuation discounts.  This is the value of the contract.  The contract is an available asset unless:

  • the contract prohibits its sale

2) no one is willing to purchase the contract.  Evidence must be produced by obtaining a letter from at least one individual or organization that is in the business of buying land contracts to say they won’t buy it. 

The contract stays in existence and the buyer just shifts who the payments are made to.  The seller then has cash which can be used for cost of care, other items, or placed into another exempt Medicaid category

What about the payments?  The Medicaid handbook advises the workers to count the interest from land contract payments as unearned income.  The principal is not counted because that is a conversion of one asset to another (land to cash).  Expenses are allowed to be deducted.

The State will not have a lien on a property owned that is being sold with a land contract because the seller’s interest is considered personal property.  However, they may have a claim for the payments being made from the contract or if the contract is sold.  Collection could be difficult if there is no probate, but nevertheless, there may be an assertion for the right to receive payment. Also, in the event the contract if forfeited and title returns to the seller, a lien will attach.

Thieving Children

File a complaint with the DHS Elder Abuse Hotline, 1-800-362-2178.

The DHS staff should investigate the abuse, refer the abuse to the county attorney, who should then establish a guardianship and conservatorship to resolve the problem.

Under Iowa’s new elder abuse law, some counties have been very aggressive in pursuit of financial crimes against elders. It is broadly written and those serving as a POA should be careful to document what they do and avoid any implication that they are benefiting by the POA position.

A solution may be for the facility to petition for a guardianship and conservatorship to take charge of the elder’s finances and resolve the problem. The costs of the action would be paid from the Elder’s income and assets. The conservator could then use the legal system end

further looting and recover the misspent assets.

Unmarried Folks

If you are living together, unmarried and old, conventional wisdom says, you should stay unmarried to avoid having to pay for other’s care. However, if one has no assets and is healthy and the other has assets but is sick, they can get married, transfer the asset to the healthy one, apply for care and have the asset and maybe some of the income attributable to the person going into the facility (up to the limits) considered the asset of the spouse not going into the facility.

Farm Specific Issues in Estate Planning
 
The Farm Service Agency
Farm clients are a unique subset of estate planning clients. Their wealth is largely illiquid and many times they have no desire to see the illiquidity changed in the hands of their beneficiaries, to include their spouses. Frequently, they care slightly less about dollars in the hands of their off spring and more about preserving an economic enterprise. We have all heard that over and over, however, few talk about the operations of the farm as it relates to the Farm Service Agency.
Dealing with the Farm Service Agency is a part of life for the farm operation.  A review of some of the documents and programs that farm operations must consider is important and as critical to an active farm operation as deciding who gets grandma’s tea set, if not more so. 
 
Documents
Generally, most farms should have a FSA Form 578 production record available to the operator. Also, a Form 156 can provide information to the executor or estate planner regarding the operation. This data drives the potential valuation of the farm.
Form AD-1026 is a document that provides advance determination of a farm’s highly erodible soils and wetlands. This document may or may not exist contemporaneously at the local USDA service center. Farm operations should make sure copies of this document are part of the “permanent record” as it establishes what production practices are authorized. This is especially important where the operation has wetland areas.
Operators must follow conditions on any land owned or farmed that is highly erodible or that is considered a wetland. Producers and any person or entity considered to be an "affiliated person" of the producer, are subject to these conditions. 
 By certifying on Form AD-1026, producers agree they will not:
• Produce an agricultural commodity on highly erodible land without a conservation system;
• Plant an agricultural commodity on a converted wetland;
• Convert a wetland to make possible the production of an agricultural commodity.
 
Form CC 941: The form certifies that that for the three preceding years, the adjusted gross income of the person owning a portion of the operation was under $900,000. This is applied per person, meaning a married couple has no concerns until the 1.8-million-dollar mark is reached.
As farms increase in size, this must as important to consider as taxation and spendthrift clauses in estate plans.
As to government programs and the limits paid to participation, it is a per person limit. Who is a person is the key to understanding how the limits impact an operation? As operations get larger and children become more successful, this may impact the farm operation if they obtain a slice of it at their parent’s death.
How you operate impacts this as well. A general partnership is not a person. Each individual in the partnership is its own person. A husband and wife partnership is eligible for 2 payment limits (one for each of them). If the estate plan moves all the assets of the farm into an LLC, corporation or trust, the payment limitation is one limit. Additionally, moving land into an LLC precludes the LLC, unless it is a partner, from securing or guarantying the notes or operation of a tenant or operator of the ground.  The correct placement of the operator into a separate trust, LLC or corporation can remove these payment limitation issues.
 
Programs
The USDA has a wide variety of programs a farm operation is potentially involved in here are some of the common ones.
• CRP
• CSP
• Ad Hoc disaster programs
Conservation Reserve Programs (production idling programs paying per acre land rent to the land owner) and Conservation Security Program (paying for production practices on whole farms to encourage general conservation techniques) and farm disaster payments are subject to a limit of $50,000 per person for CRP, $40,000 for CSP with disaster payments varying from authorization to authorization.
• ARC
• PLC.
Landowners or tenants need to be considered actively engaged in farming to qualify for Price Loss Coverage or Ag Risk Coverage. This replaced Direct Payments and the other USDA production-based payment programs from earlier farm bills.
 
Agriculture Loss Coverage
With the removal of direct payment programs of the 1980s following some World Trade Organization rulings that considered the programs distorting to the world markets, the government had to develop another method of taking some of the wild swings and risk out of crop production. What they came up with are programs based on actual production reported. They developed two strains, the ARC and PLC programs.
The ARC (average revenue coverage) program provides revenue loss coverage at the county level. ARC-CO payments are issued when the actual county crop revenue of a covered commodity is less than the ARC-CO guarantee for the covered commodity.
 
Price Loss Coverage (PLC)
PLC (price loss coverage) program payments are issued when the effective price of a covered commodity is less than the respective reference price for that commodity. The effective price equals the higher of the market year average price (MYA) or the national average loan rate for the covered commodity.
The MYA price for a given crop year is used to calculate any potential payments for the programs. The historical MYA prices are also used to determine the benchmark revenues for program options. The MYA price for a given commodity is not based on the Chicago Board of Trade commodity prices, or any specific local or terminal grain prices. The MYA price is the 12-month national average price for a commodity, based on the average market price received at the first point of sale by farm operators across the United States. The USDA National Agricultural Statistics Service collects grain sales data on a monthly basis, which is then weighted at the end of the year, based on the volume of bushels sold in each month.
USDA updates the average MYA price estimates for a given marketing year in the monthly World Agricultural Supply and Demand Estimates report. USDA also publishes monthly and season-average estimated market prices for various commodities, which are available on the Farm Service Agency website.
The payments depend on MYA price levels on Aug. 31, or any adjustments made by USDA in the announced NASS yields to arrive at the final FSA county yields, which are used to calculate ARC-CO payments. 
Producers must be enrolled in the one or the other program for corn and soybeans in order to be eligible for any payments.  
 

 

Once again, litigants are attacking production agriculture in North Carolina. Large verdicts have returned against Smithfield Foods, a large pork integrator that places its owned animals on custom feed floors. The latest trend is not to sue the actual farm operator, but rather sue the company that owns the hogs on contract to be fed by the producer. The lawyers attacked the anaerobic lagoons and the spraying of manure upon fields, asserting they were a public nuisance. In the North Carolina cases, despite the big headlines, the actual damages will be limited to $3 million dollars or less.

Interestingly, the North Carolina legislature responded by limiting the time line for neighbors filing lawsuits against farm operations to the first year that they are established or have a “fundamental” change. It also prohibits damages being awarded unless the farm operation has already had a criminal or regulatory sanction.

Concerningly, the federal legislators in farm states are making rumblings about a national prohibition on lawsuits against farm operations similar to the North Carolina measure. I am not a fan of a large federal government that provide blanket policy on how individuals use the land. The federal government’s foray in to land use management via the EPA and the Army Corps of Engineers is not a shining example of how to achieve results. Each of the 50 states should retain its own power to determine land use decisions. The solution in Hawaii is not the same solution in Texas. In fact, in response to the North Carolina jury decision, speculation has begun that more swine operations will move west, to the Dakotas and other wide-open spaces where people are not. This action may be encouraged or discouraged by the people of South Dakota through its laws, as it should be. Perhaps they want more jobs and pork production, perhaps they don’t want the associated negative impacts. The people of South Dakota should make those decisions, not a federal blanket policy.

In other attacks on agriculture, Monsanto suffered a large verdict against it for allowing the use of Glyphosate (Roundup) without adequate warnings or research. Observers who are pro and anti chemical companies noted that the trial was less about science and more about corporate practices and indifferences towards discovering the potential harm of the product.

What is concerning about in both these cases is the attack on the perceived faceless, monolithic corporations. It is generally more palatable to sue a company than to sue an individual over a perceived wrong. As corporations continue to grow and independent producers are pushed out, the corporate face will be an easy one to attack. What appears to be a faceless corporation is actually thousands and thousands of employees and stock holders who will bear the economic costs of continued litigation. Those economic losses or fear of those losses will be passed along in the form of higher product costs to the end user, the farm operator. That farm operator has nobody to pass the costs on to.

July is the month most law changes take effect in Iowa. Some highlights that impact agriculture operations are below:

Small Claims. More Fighting for less.

The small claims limit will be raised from $5,000 to $6,500, effective July 1st. Plaintiffs can now collect up to $6,500, plus fees if applicable, when filing small claims actions. Small claims are more cost effective than formal district court litigation as discovery and other things that slow down civil litigation are not generally an issue. You also can get a court date much quicker and a ruling much faster. Also, attorneys are optional at best in small claims.

OWI

All OWI related offenses will require the “blow and go” breath analyzer to ensure that the operator is not consuming alcohol while driving. It used to be only those with a high BAC at the time of arrest were required to get the analyzer for a 1st offense OWI.  The rules for getting a work permit after your licenses has been suspended have been loosened up and should reduce the number of violations for driving while suspended.  This should increase access to the work force as those under suspension should be able to get a license that is broader in nature than previously allowed.

Chapter 12 Bankruptcy

Agriculture is full of risks: marketing, financial, production, labor, and legal risks that must be managed.  Net income on the farm in 2017 was down 9% from the previous year. While the last four years have shown a decrease in total bankruptcy filings, farm bankruptcy filings are up 17%.  It appears to be moving higher.

Bankruptcy is a risk management tool of last resort for a farming operation.  We in the Midwest are ingrained with a "pull ourselves up by the boot straps" approach to all problems, but this may not be the wisest decision when it comes to farm business in peril.

Chapter 12 of the Bankruptcy Code has made business reorganization and debt repayment a much more streamlined process, allowing family farmers and fishermen to reorganize their operation to avoid failure.    

To qualify under a Chapter 12 proceeding, the farmer must have “regular annual income” which is “sufficiently stable and regular enough income” to make payments for a restructured business through this chapter (11 U.S.C. § 101(19)). A farmer can be an individual and spouse, a corporation or a partnership. The farmer can’t have over $4,031,575 of debt.  If the limits are exceeded, a Chapter 11 or 13 can still be used. The farmer must also have 50% of the debt connected to the farm operation and 50% of the gross income from the farm. Chapter 12 is not for weekends and nights, hobby farmers.

Chapter 12 allows a farmer to alter debt owed by reducing total debt “to the fair market value of the property, reducing the interest rate to the current market rate, and … extending the payment period”. This is sometimes referred to as a cram down.

To file, the farmer needs $700 ($200 on the day of filing and $500 within 15 days of filing). A complete list of assets, liabilities, income, expenses, contracts, and a financial affairs documents also need to be prepared.  Further, the farmer must include a list of creditors, amount and nature of the claim, the source, amount and frequency of farm income, a list of the farmer’s properties, and a detailed list of monthly farming and living expenses. The claims are divided up into three categories. Priority claims are first class claims, like taxes, that must be addressed in the plan. Secured claims, are obligations with a piece of collateral tied to it, like a mortgage tying real estate to a promissory note. Unsecured claims are not tied to collateral, like a credit card or an open account feed bill.

Collection actions are stopped during this time by a Stay order. Between three and five weeks after filing, a meeting of the creditors will be held where the trustee and the creditors of the farmer can ask the farmer questions under oath.

A trustee is assigned upon filing, who collects the income from the farm and pays it to the creditors according to a plan that the court approves. That plan has to be approved within 90 days of filing.  The plan needs to detail how to pay debts over 3-5 years. 45 days after the filing of the plan, a hearing will be held on if the plan is to be accepted. Creditors can appear to object.

The plan generally includes payment to creditors, with interest, if the obligation is a secured debt, selling excess assets, full payment of priority claims and giving up assets that are secured by liens and obligations. The idea is that the lenders and secured creditors get at least the value of the asset securing the promise to pay. Anything above the value is “unsecured” and may or may not get paid out. Once the trustee has collected all the payments under the plan, the case may be discharged and the farmer will not owe for obligations not addressed as part of the plan.

 Some things cannot be discharged like alimony, child support, debts obtained via false information, and debts for physically hurting someone.

If the plan doesn’t work, the court can dismiss the case or convert it to a Chapter 7 case, which is a liquidation. That only happens if fraud is involved.  

If a business is filing a Chapter 12, a personal bankruptcy may still be needed to resolve personal guarantees.

Wednesday, December 12, 2018
  • Patrick B. Dillon
  • Jill Dillon
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Patrick B. Dillon enjoys finding solutions to legal issues and catching problems for clients. Pat practices in the Sumner office regularly represents clients in district, associate district and magistrate courts for agricultural, real estate, criminal and collection issues. He drafts wills and trusts, creates estate plans and helps clients through the probate process.
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Jill Dillon focuses on family law, estate planning and IRS matters. Jill is a University of Northern Iowa undergraduate (Political Science Cum Laude) and a Drake University Law School graduate. Jill spent extensive time advocating for low income tax payers in front of the IRS and the State of Iowa Department of Revenue while at Drake.

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