Farm Succession Planning Mistakes in Wisconsin

By Bryan C. Whitehead | Agricultural Law | Nowlan Law – Janesville, WI

Wisconsin is home to tens of thousands of family farms, many operated by the same families for multiple generations. Keeping a farm in the family is one of the most important goals Wisconsin farm owners share. Yet a significant share of family farms do not successfully transfer to the next generation.

The reasons are often legal. Not criminal, not contested, but legal: plans that were never put in writing, documents that were never updated, trust assets that were never properly titled, or farmland preservation obligations that were overlooked in the transfer process. These are the kinds of mistakes Wisconsin farm families make every year, usually without realizing it until something goes wrong.

This guide covers the most common legal mistakes attorneys see in Wisconsin farm succession planning and what farm families can do to avoid them.

Mistake 1: Having No Plan at All

The most fundamental mistake in farm succession planning is not having one. When a Wisconsin landowner dies without a valid will, state law, not the landowner’s wishes, determines who receives the property.

Under Wis. Stat. ch. 852, Wisconsin’s intestate succession law distributes assets to the decedent’s surviving spouse, children, and other heirs according to a fixed legal formula. That formula may have nothing to do with what the farm owner intended. It can result in multiple heirs owning undivided interests in the same farmland, force a buyout or sale, or create co-ownership conflicts among siblings or blended family members that take years and significant expense to resolve.

Succession planning starts with a valid Wisconsin will under Wis. Stat. ch. 853, and for most farm families, it needs to go much further than that.

Mistake 2: Relying on a Will Alone

A will is an important starting point, but for most Wisconsin farm families it is not sufficient on its own. Wills are subject to probate, the court-supervised process of administering a deceased person’s estate. Probate takes time, involves court costs, and is a public process.

For farm families, probate delays can create real operational problems. Who has the legal authority to manage the farm during the administration period? Who handles lease renewals, equipment decisions, or operating accounts?

A well-structured farm succession plan typically uses a combination of tools depending on the family’s goals and the farm’s structure. These may include a revocable living trust, limited liability company (LLC) formation, land contracts, gifting strategies, or buy-sell agreements. Working with attorneys who understand both agricultural law and estate planning ensures these tools work together rather than against each other.

Nowlan Law’s agricultural law attorneys and estate planning attorneys work with Wisconsin farm families to build plans that address both the land and the legacy.

Mistake 3: Creating a Trust But Not Funding It

A revocable trust is a powerful tool for avoiding probate and ensuring a smooth transfer of farmland to the next generation. But a trust only works if assets are actually transferred into it.

Under Wis. Stat. s. 701.0710, a settlor transfers property to a trust by placing legal title of the property in the name of the trustee. If farmland is never re-deeded into the trust, that land must still pass through probate when the owner dies, defeating the entire purpose of creating the trust in the first place.

This is one of the most frequently overlooked steps in estate planning. Farm owners create the trust documents but never complete the deed transfers to re-title the farm assets. Working with an attorney who oversees both the trust drafting and the re-titling process is essential.

Mistake 4: Treating Equal and Fair as the Same Thing

Many Wisconsin farm families want to treat all their children equally when it comes to inheriting the farm. But equal distribution is not always a fair distribution, particularly when one child has spent decades working the farm while others have built careers elsewhere.

Dividing farm assets equally among all heirs, without accounting for the contributions of the farming heir, can result in co-ownership disputes, forced sales, or a situation where the farming child must buy out siblings at a price that makes continuing the operation financially impossible.

Farm succession plans can address this through buy-sell agreements, life insurance structures, documented compensation arrangements, or phased gifting of farm operating interests over time. The key is addressing these conversations in writing while everyone involved is still alive and able to participate.

Mistake 5: No Disability Planning

Farm succession planning tends to focus on what happens at death, but what happens if the primary farm operator becomes incapacitated first?

Without a valid Wisconsin Power of Attorney under Wis. Stat. ch. 244, no one may have the legal authority to manage the farm’s finances, sign contracts, or make operational decisions while the owner is incapacitated. This can freeze farm operations during planting season, a lease renewal, or any other critical moment.

Disability planning should be part of every Wisconsin farm succession plan, including a durable financial power of attorney, a health care power of attorney, and advance directives.

Mistake 6: Overlooking Farmland Preservation Agreement Obligations

Wisconsin farmland subject to a farmland preservation agreement through the Department of Agriculture, Trade and Consumer Protection (DATCP) carries obligations that do not automatically transfer to a new owner.

When land covered by one of these agreements changes hands, the new owner must work with the county Land Conservation Department to obtain an updated Certificate of Compliance. Certifications of compliance are not transferable across ownership entities.

Landowners who wish to remove land from a farmland preservation agreement before it expires may also be subject to a conversion fee under Wis. Stat. s. 91.66, calculated at three times the per-acre value of the highest-value tillable cropland category in the applicable township for the year of release.

Failing to account for these agreements in a succession plan can result in unexpected fees, compliance obligations, and complications that delay or disrupt the transfer.

Mistake 7: Failing to Update the Plan

Even a well-crafted farm succession plan becomes outdated. A divorce, a remarriage, the birth of grandchildren, the death of a named heir, a land purchase, or a change in the farming operation’s structure can all affect whether the plan still works as intended.

A succession plan created 15 or 20 years ago is unlikely to reflect today’s family or today’s farm. Wisconsin farm families should review their plans at a minimum every three to five years, and any time a significant life or business event occurs.

Talk to a Nowlan Law Attorney Before It Becomes a Crisis

If any of the mistakes above sound familiar, you are not alone. Wisconsin farm families face these challenges every generation. The good news is that every one of them is avoidable with the right plan in place before a crisis forces the issue.

At Nowlan Law, our agricultural law and estate planning attorneys have helped Wisconsin farm families protect their land, their legacies, and their family relationships for more than 150 years. We understand the legal complexity and the personal weight that comes with planning for the future of a farm that has taken generations to build.

Speak with a Nowlan attorney about your farm succession situation.

Janesville: (608) 755-8100
Beloit: (608) 313-8100
Madison: (608) 608-8747
Sun Prairie: (608) 755-8281

Or visit our contact page to reach the office nearest you.

This article is for informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship. Laws and regulations may change. For advice specific to your legal situation in Wisconsin, please consult a licensed attorney at Nowlan Law.