Business Law & Succession Planning
Whether you are starting a business or looking forward to the day you can retire, you need to make sure that your business has the proper business formation. Most business owners do not take the time to plan for how they will leave their business. They are busy running the company, or they don’t know where to start. But if you continue to own a business until you die, it will be included in your estate and could be subject to substantial estate taxes.
Planning for how you will exit from your business should be an integral part of your business formation and estate and retirement planning. Proper planning now can provide you with retirement income, reduced income and estate taxes, and even let you benefit a charity if you so choose, regardless of whether you transfer your business to family members at discounted values, to employees, or to an outside buyer. In today’s market, the economy and trends are affecting the timing and value of business transfers.
Business Formation for your company will result in you and your family receiving the best possible tax and asset protection results, both now and after your retirement, disability or death. Contact attorney Lindsey Duvall today to create a well thought out, personalized business succession plan that ensure your business and personal life are enhanced through the smooth transfer of ownership.
Without a Plan
If an owner, executive, or shareholder does not have a succession plan in place, his or her stake in the company is either passed on to relatives as part of the estate, absorbed by other shareholders, or a combination of the two.
In family-owned businesses, disputes may occur between siblings and other relatives. Those more active in the day-to-day operations of the business may feel entitled to larger shares than others who are less involved.
In larger corporations, employees and clients may leave the company for fear of instability, shareholders may not be able to buy out the extra shares, and temporary replacements may not be equipped to lead the company through such a delicate time. In addition, if a spouse or other relative inherits the shares of the deceased owner, disputes between shareholders may occur, stalling progress and possibly leading to a loss of assets.
With a Plan
An attorney with expertise in business and estate planning can help owners and shareholders make a plan to ensure a smooth transition. Plans are customarily created after employees, coworkers, other shareholders and family members have been consulted and after goals for the future of the company have been outlined. Though succession planning can be tailor-made to fit any business model, it typically involves either retention or buy-sell retention.
- Retention Planning involves keeping the business or shares within the family. With a retention plan a spouse, children, or other relatives will retain control of assets.
- Buy-Sell Retention Planning offers the other shareholders or vital employees a larger stake in the company. Interested parties stipulated in the plan will be granted the right of first refusal, or the ability to accept or reject the shares before they are offered to individuals outside of the company. The price of the shares will be determined by a valuation mechanism agreed upon during succession plan negotiations. For example, a valuation mechanism may require that shares be offered for their prevailing full market value, or require multiple professional business valuation appraisals
Properly drafted succession plans provide the remaining members of the company with a procedure to follow in case the unexpected happens. Planning can designate a competent successor, a successor will be named who will be able to guide the business through the transition, reassure employees about their job security, and put safeguards in place to protect the company from loss. A pension or retirement fund may also be written into the plan.
Other arrangements can be made that would transfer the owner or executive’s interest into trusts to be paid out to family members. Assets may also be divided among employees or in other cases, it may be best to sell the company. With so many factors to consider, it is important that you consult an experienced business planning attorney who can understand all of the interests at stake and work with you to protect them.