Most small business owners think about the future of his or her business. Because “the business” is usually the primary wealth generator and a large portion of personal net worth, many estate planning issues interact with business succession planning. A business succession plan is a comprehensive look at your estate that can include everything from how your assets are diversified, your required income after exit, shareholder buy-sell agreements, management plans, and any other documentation that will help ensure the smooth operation of the business. Traditional estate plans are designed to avoid probate court, ensure you have control over asset disposition, and to minimize taxation; whereas business succession planning is aimed at maintaining the future health and value of the business.
Protection for Family Members and Executors
Proprietorships and partnerships must cease operation upon the death of an owner or partner. A partnership agreement generally will provide for the continuation of the partnership by the surviving owners, though it’s important that some provision be made for the acquisition of the deceased partner’s interest. A sole proprietorship can’t be continued in the same manner as a partnership. For example, if a proprietor’s assets are not specifically bequeathed to a child as the successor to the decedent, they will pass under the general dispositive provisions of the will. During the probate process, the executor would be responsible for operating the business, which could result in business losses and lost value.
This example, shows just one reason why a business succession plan is critical. Such a plan, which might consist of a buy-sell agreement or carefully drafted will provisions, can help provide answers to the following important questions about the future of the business:
- Who has the authority to continue its operation?
- Will it be sold, liquidated, or continued? Internal buyer or third-party buyer?
- Who are potential buyers, and do they have the cash to activate the purchase in a timely fashion?
To promote the continued operation of a sole proprietorship, the owner might leave written instructions setting forth your intentions with respect to management of the business following death. Such a written document might provide some guidance to a successor proprietor (e.g., a spouse or child who might need assistance during the transition period). Since the successor would, however, own all of the business assets and have full control of business operations, the successor could choose not to follow such guidance.
In some instances, a sole proprietor may be able to simplify the transfer of the business at death by converting it to corporate form while alive. Since a corporation has continuity of life, many of the issues confronting a sole proprietor at death can be avoided. Nevertheless, it would still be important for there to be competent management in place to succeed the decedent, and to have a buy-sell agreement in place to govern the transfer of his or her shares.
Insurance Often Plays a Key Role
Typically, an owner’s death or disability can create an array of financial problems affecting both the business and the owner’s family. For instance, issues such as estate taxes, loss of income, or whether a buyer has adequate cash to purchase the deceased or disabled owner’s shares are problems that cannot be entirely ensured merely by a business succession plan. For this reason, life insurance and disability income insurance often go hand-in-hand with a succession plan. Proper insurance coverage can:
- Help an owner’s family meet estate tax obligations, which in many instances may help keep a business in the family (if so desired);
- Help replace an owner’s loss of income due to death or disability; and
- Help a partner(s) or existing employees have the necessary cash to buy out the deceased or disabled owner’s share of the business.
Where to Begin
An estate planning team may consist of lawyers, accountant, valuation, and insurance professional who can help you develop a business succession plan that works for your goals. There are established methods for transition that will leave both your business and successor management free from unnecessary worry or risk. In addition, through carefully planned life and disability insurance coverage, the transition can be properly funded and avoid substantial losses that might otherwise occur.
Jerry Matecun helps business owners to discover key planning and investment considerations vital to build and protect the value of your business and personal assets. For a no cost, confidential conversation regarding your business valuation and exit plans call or email Jerry at 949-273-4200, or email@example.com.