Faulkner Law


Why Having a Will May Cost You Your Business


Why Having a Will May Cost You Your Business

Your business is likely the most valuable asset you own - it’s not only your source of income, but it is the product of your hard work and perhaps even the livelihood of others. As a business owner, it is essential that you plan for the fate of your business if you become incapacitated or pass away unexpectedly. This estate plan should be comprehensive, and it should be carefully crafted to create the exact result you intend. Without an estate plan, or if you simply have a will transferring your business to a partner or family member, the results will be messy and may even result in the collapse of the business.

Transferring a Business Using a Will

If you are the sole business owner, your business (and everything it owns) will be a part of your estate. That means, when you pass away, the business and its assets will pass to the heirs you designate in your will. Your will specifies how you want assets transferred and to whom, and it will allow you to identify an executor.

If you choose to transfer your business in your will, your estate must first pass through the probate process. This process is a public court proceeding that can take anywhere from six to eighteen months. If a business is a part of your estate, it is likely that the probate process will take more time than if the estate was simply personal assets.

Putting a business through probate can be a nightmare. First, there is the time. During the probate period, the business will essentially have to be put on hold while the courts determine whether there are any outstanding debts to be paid, as well as how and to whom the business should transfer. Secondly, the cost of probate can be prohibitive. The high costs of legal fees as well as court costs may end up driving your business into bankruptcy pretty much immediately. Thirdly, because probate is public, all information about your business value, assets, and debts will become part of the public record. 

There are other ways of transferring your business and its assets that can keep the business out of probate and protect the business from bankruptcy during this transition.

Succession Planning

Creating a succession plan is the best way to protect your family, your business, and your employees in the event that you become incapacitated or pass away unexpectedly.

When creating a succession plan, you will need to look at the structure of your business and decide whether you want your business to pass to the next generation, be sold at a fair price, or dissolve once you are no longer able to run it. If you have business partners, will they want to buy out your share of the business once you are no longer involved? Or do you want someone in your family to take your place?

If the business is dependent on your skills and there is no one to take over the business, your succession plan may just be to settle all debts, pay fair severance to all employees, and wind down the business gracefully. Doing so, however, requires careful planning. You will need to document your intent to terminate the business on the owner’s death.

If you want the business to pass to an heir and you have no other business partners, you will need to have your succession plan written down and fully detailed. Discuss the plan with the designated successor ahead of time to ensure that they are willing and able to take on the business. If you would rather your family be able to sell the business after you pass, do research ahead of time so that your family will be prepared for the process and know a fair price for selling the business.

Regardless of whether you want your business to wind down or to continue thriving, it will be essential that you provide all information that may be necessary for an executor or successor to take control of your business during the transition. This means providing this trusted individual with account names and passwords for all bank accounts, email accounts, social networking sites, and file storage sites. It is a good idea to keep a notebook with all account information, locations of assets, and passwords in a secured place where the named executor or other trusted person knows how to access it.

Buy-Sell Agreements

If your business is co-owned with other individuals, it is important that you enter into a Buy-Sell Agreement that plans for the retirement, incapacity, or death of any of the business owners. In a Buy-Sell Agreement, co-owners agree on a plan for the business’s future, including a sale price for each owner’s share of the business and any restrictions on what should not happen with the business. Without a Buy-Sell Agreement, your share of the business will pass to your heirs as part of your estate, and your loved ones could end up co-owning a business that they don’t want. This may lead to disharmony within the business or your family member selling your share for less than a fair price.

Life Insurance

If you have a Buy-Sell Agreement with your co-owners, it is likely that each co-owner will want to take out a life insurance policy on each of the other owners. This provides surviving co-owners with the cash to buy out your share of the business: fulfilling the Buy-Sell Agreement and providing your family with supplemental support. Co-owners in a business often place these policies in an irrevocable life insurance trust.

If your family relies upon your business income, it may also be prudent for your family to take out a life insurance policy on you. This allows your family some time to adjust to life without your business income.

Another form of life insurance that may save your business is called “Key Man Insurance.” This is a policy that a company can take out on the owner or other key employee of a business without whom the business would fail. The pay out from Key Man Insurance gives the business time to either hire a replacement or wind down the business gracefully. Key Man Insurance is designed to prevent a company from having to immediately file for bankruptcy on the death of a founder. 

Power of Attorney

It will also be essential that you have Durable Power of Attorney documents in place before the unexpected occurs. If you become incapacitated, it is important that you have named an individual who can carry on business affairs such as payroll.

Considering Trusts

One way to avoid probate is to place assets or business ownership into a trust. There are different ways to structure a trust based on what is appropriate for your business. Placing assets into a trust can keep the business’s affairs private, reduce legal fees, and provide some protection from creditors.

Because trusts allow the grantor to exercise a certain amount of control over how assets are distributed and used, a trust is a useful tool to accommodate more complex transfers. For example, if you want to leave the business to one of your children, but you want others of your children to benefit from the proceeds as well, a trust is a good way to achieve this.

A revocable living trust is a flexible form of asset protection because it can be amended during your lifetime. While revocable trusts don’t provide the same protection from creditors as an irrevocable trust, there are benefits to keeping a trust flexible.

Ask For Help From A Marietta Business Attorney

When planning for your business’s future, there will be a lot to consider. Consult with a Marietta attorney and a tax professional to determine which is the best plan for you and your family. Contact Faulkner Law at (770) 685-9501 to do a full analysis.