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Business Succession Planning for Small Businesses

October 13, 2021/in Business Law, Estate Planning /by Michael Lonich

Business succession planning is the process of determining how you are going to transfer your business ownership and transition out of a business management role while maximizing your personal financial security. It is a critical process that determines whether the transition of a business succeeds or fails. This entails a series of logistical and financial decisions that will prove to determine the fate of business succession.

Why Should Small Businesses Worry About Succession Planning?

There are several reasons:

  • Unexpected events, such as death or disability of you or a business partner. Normally, business succession planning is implemented in view of a predetermined retirement date. However, the chances that there could be an occurrence of unexpected events makes the process more important and urgent.
  • Poor business transition can have negative effects on business results. Consequently, failure of business could occur.
  • The value of your business may represent a substantial source of income in your retirement. Therefore, it is important that efforts are made to implement successful succession planning. You could minimize risks to your retirement capital that way.
  • If you wish to transfer your business to a family member, you will likely need to coordinate your business plan with your estate plan. You will also want to explore any tax deferral opportunities that could benefit you and other family members. 

Types of Business Succession Plan

Various options exist for small business owners to explore if they desire to implement a succession plan. An experienced succession planning lawyer can help you move forward with these options. 

Selling Your Business to a Co-owner

If you founded your business with a partner or partners, you may be considering your co-owners as potential successors. A buy-sell agreement could be implemented in this case.

Passing Your Business onto an Heir

This is a popular option for business owners, especially those with children or family members working in their organization. It’s seen as an attractive option even though most second-generation businesses hardly survive business transition. Lifetime transfer strategies could be implemented in this case.

Selling Your Business to a Key Employee

This is selling your business to someone that works within the organization. Most times, employees in the organization don’t have the financial capacity to buy the organization they work in. Seller financing could be implemented in this case.

Selling Your Business to an Outside Party

This is looking elsewhere other than your family members, partners or employees for potential successors. Entrepreneurs or even your competitors could be the outside party.

Selling Your Shares Back to the Company Upon Death

This is an option available only to businesses with multiple owners. An “entity purchase plan” or a “stock redemption plan” is an arrangement where the business purchases life insurance on each of the co-owners. When one owner dies, the business uses the life insurance proceeds to purchase the business interest from the deceased owner’s estate. This gives each surviving owner a larger share of the business. 

Why You Need a Succession Planning Attorney

The success of succession planning hinges on both financial and legal factors. It involves a lot of details revolving around:

  • The timing of the transfer and how interests will be held.
  • Determination of who will succeed in ownership and management.
  • Transfer tax and income tax considerations.
  • Provisions for family members who are not active in the business.

The input of an attorney specializing in business succession planning is critical to your business’s success. An experienced attorney will be an invaluable asset as you navigate the legal factors involved in succession planning. You don’t have to worry about drafting contracts and agreements if you hire a qualified attorney to do this for you. An attorney plays a key role by drafting a buy-sell agreement, creating matrimonial agreements, creating trusts, and restricting corporate capital. The need for an attorney by small businesses when planning a business succession is a matter of extreme importance and urgency.

To learn more about succession planning, visit us here. Lonich Patton Ehrlich Policastri is a leading law firm in the area of business succession planning. They offer free consultations to anyone within the following areas: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, San Jose, and San Benito.Contact them today and successfully implement succession planning for your business.

https://www.lpeplaw.com/wp-content/uploads/2021/10/succession-planning.jpeg 912 1368 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2021-10-13 21:10:042021-12-22 18:17:29Business Succession Planning for Small Businesses

Buy-Sell Agreement In Family Business

January 29, 2020/in Business Law, Estate Planning /by Michael Lonich

You may have heard of shareholder agreements but have you heard of the more specific Buy-Sell Agreement? This is a fundamental succession planning tool when it comes to owning and operating a business. It is especially helpful in the case of family businesses. 

What Is A Buy-Sell Agreement?

Similar to how a will dictates how assets will be transferred in death, a buy-sell agreement is a legal document that dictates where an owner or partner’s share of a business will go in the case of certain life events (i.e. death, retirement, etc.)

Having an agreement like this in place protects the family business. It protects family assets so that everything stays in the family’s control and so that nothing can be transferred outside the family. These agreements can dictate the succession of ownership.

How It Protects Your Family Business


Often, for a myriad of reasons, one family member or partner will try to sell their share of the business. This can cause issues if they’re trying to sell their share outside of the family.Without an agreement in place, they can sell their share off legally despite their intentions. Setting up a buy-sell agreement means you can dictate how shares and assets are transferred or sold. You can create certain stipulations that prevent a family member from selling outside the family. 

A married couple sets up precautions of a divorce in their buy-sell agreement

It can also help to have an agreement in place in case of a divorce. In California, any assets acquired during a marriage qualify as community property. This means that a spouse of the family owner can lay claim to their share of the family business. If you create a strict buy-sell document that requires the spouse to sell their share back to the company in the case of a divorce, you can prevent the share from transferring outside of the family. 

The agreements are meant to be put in place in preparation of certain life events. If there is a divorce, or a retirement or a death, a plan is in place to prevent chaos.  It is also great to have in place in the case of incapacitation which can include dementia or other things that prevent a person from acting in a mentally sound way or making informed choices. 

Having a buy-sell agreement can assure the long term survival of a family business. Why would you not want to have that added layer of protection? 

A Buy-Sell Agreement…

  • Ensures shares stay in the family
  • Creates a special space where shares can be bought and sold under dictated parameters 
  • Identifies potential future events and conditions that trigger the agreement. These will determine what happens to that share
  • Determines the valuation of business shares
  • Specifies the source of funding for the purchase. Where does the money that will be paid in the transfer come from? 

If you own a family business or a partner in one, you should consider the benefits of having a buy-sell agreement. That extra protection can ensure the longevity of your company. Live in the greater San Jose and Bay area? Set up your free consultation with Lonich Patton Ehrlich Policastri today.

https://www.lpeplaw.com/wp-content/uploads/2018/12/helloquence-51716-unsplash-min.jpg 1367 2048 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2020-01-29 20:36:202021-12-22 19:54:23Buy-Sell Agreement In Family Business

Transferring The Family Business, But To Which Child?

July 27, 2015/in Business Law, Estate Planning /by Michael Lonich

After years spend building up a successful family business, many want to pass on their success to their next generation of family members. Unfortunately, conflicts in family businesses are likely to occur when the owner and other family members begin to consider and examine the transfer of the ownership and control of the business. One of the largest conflicts to result often rises in situations where there are two or more children in line to take charge and sibling rivalry erupts. However, in planning the succession of a business, the transition may go smoother with the creation of a trust outlining the steps to be taken in the succession.

The advantage of a business trust is that a plan would have been put in place in the case of an unexpected death. However, there is still a problem with choosing which child to take charge of the family business. One of the greatest challenges in choosing which child to take over is their lack of experience, though this issue can be addressed with the following tips.

  • First Option: Trial Run
    • You can give each child about six months or so to be in charge.
    • Objectively list the qualities that you are looking for before the trial begins.
    • Also, make sure to let the other employees know that the child is in charge.
  • Second Option: Test and Interview the Candidates
    • Put the siblings through a series of written tests.
    • Also, interview each candidate in order to determine who would be the best choice for taking over the business
  • Third Option: Leave It Up to the Children
    •  If there are several children, a good option may be to allow them to set up a board and let them choose who they believe would be the best successor.
    • This can even include outside advisors.
  • Fourth Option: Have a Trustee in Place
    • Put a Trust in place with a trustee running the business until he or she believes the children are ready to take over

The options above are just a few possibilities that a family business owner can try. Nevertheless, they may be able to help family business owners who are troubled by the fear that a child cannot develop the leadership qualities necessary to run the family business. But after getting through this first hurdle and putting these details in a trust, the owner will no longer have to worry about succession of the family business as they will be in capable hands.

Estate planning is a highly complex area of law. If you are interested in creating a trust for your family business or have any questions regarding your current estate plan, please contact the experienced estate planning attorneys at Lonich Patton Ehrlich Policastri for further information. The attorneys at Lonich Patton Ehrlich Policastri have decades of experience handling complex estate planning matters, including family business trusts, and we are happy to offer you a free consultation. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

 

Source: Charles D. Fox, Keeping It In The Family: Business Succession Planning, SS039 ALI-ABA (2011)

 

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2015-07-27 08:31:152021-12-22 20:30:09Transferring The Family Business, But To Which Child?

How will proposed tax reform affect your estate plan?

January 30, 2015/in Business Law, Estate Planning, Probate /by Michael Lonich

On January 20th, 2015, President Obama stood before a joint session of Congress and delivered the annual State of the Union address. Some of the topics discussed were the current State of the Union, College Savings Plan reform, his legislative agenda as well as several White House proposed tax reforms for the upcoming fiscal year.

While many of his new policies will affect all Americans in some way, several of his proposed tax increases will particularly affect upper-income persons and financial corporations. One in particular is a proposed change to the tax on appreciated estate property, otherwise referred to as the “trust-fund loophole.”

Taxation on Appreciated Estate Property

The term Capital Gain stands for the profit realized on the sale of a non-inventory asset that was purchased at a cost amount that was lower than the amount realized on the sale.  In the United States, individuals and corporations pay U.S. federal income tax on the net total of all their capital gains just as they do on other sorts of income. “Long term” capital gains are generally taxed at a preferential rate in comparison to ordinary income.

Currently, the law states that property which has appreciated in value that is owned by an estate is generally not subject to tax at death. Under this tax scheme, children and other heirs typically receive and sell property with little or no capital gains tax since most property receives an increase in basis to fair market value. For example, a parent who dies can pass along a valuable asset to their child or heir with no capital gains tax being due. When the child or heir eventually sells the asset, the current law limits the eventual tax bill by figuring the taxable gain only since the parent’s death. While this is a feature commonly known as a stepped-up basis the administration refers to this as the “trust fund loophole” and is looking to change it.

The White House proposal is to tax this appreciated estate property. The proposal states that the tax will be at 28% if the difference between the cost of the property and the fair market value at death exceeds $100,000 per person. There would be a separate exclusion for a personal residence of $250,000 per person. The proposal would not include clothes, furniture and most other personal items.

In arguing its case for revising this aspect of the tax code, the White House claims that all of the gain on valuable property or assets that occur prior to the death of a parent unfairly escapes tax. The White House claims it is in good company. Critics of the current tax code say that it is outdated. They claim that while the current policy reduces disputes over prices paid for assets long ago, they acknowledge that revision to the tax code would unlock capital by removing an incentive for holding valuable assets for generations.

Many experts, such as USC tax expert Edward Kleinbard, agree. Mr. Kleinbard notes that the capital gains tax is our only truly voluntary tax. Taxpayers can defer it for a considerable amount of time simply by withholding on the sale of their taxable assets. He argues that if you’re rich enough to hang onto your stocks and bonds, or can utilize financial strategies to enable you to exploit their value without selling them, you can defer paying capital gains tax your entire life.

Whether the White House prevails in passing this legislation remains to be seen. It seems clear, however, that negotiations on tax policy will continue in attempts by the current administration to eliminate tax loop-holes. Eliminating the lock-in effect, where holders of appreciated assets avoid selling because of the taxes imposed on the sale, could have a major impact on estate planning strategies and should prompt concerned individuals to look more closely at their estate plans, which should be revised periodically to ensure the best treatment of ones assets.

These are issues that make estate planning a complex field. Whether you are concerned with devising a plan for either a family estate or that of a business, it is important to get good advice. The attorneys at Lonich Patton Ehrlich Policastri have decades of experience handling complex estate planning matters including business succession plans, wills, and living trusts. If you are interested in developing an estate plan or reviewing your current estate plan, contact the experienced estate planning attorneys at Lonich Patton Ehrlich Policastri for further information as we are happy to offer you a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

 

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2015-01-30 16:43:222021-12-22 20:35:43How will proposed tax reform affect your estate plan?

Your Business Exit strategy should start today

July 15, 2014/in Business Law, Estate Planning /by Michael Lonich

If you draft a will in order to ensure that your heirs are taken care, developing a business succession plan will ensure your company continues to thrive after you are gone.

As the economy slowly emerges from the shadow of The Great Recession of 2009, businesses are also starting to thrive again. While storefront businesses are still a staple of the American dream, use of the internet and the relatively low cost of creating a website and selling a unique product or idea has lowered the barrier to entry for entrepreneurs who wish to start a family business.

If you own or are starting a family business, you are in good company: Forbes estimates that family businesses account for 50 percent of the current Gross Domestic Product in the U.S. This includes 35 percent of Fortune 500 companies (the top 500 U.S. publicly and privately held companies ranked by their gross revenue and published by Fortune magazine) that are controlled exclusively by families.

However, there is a problem with the family business model. According to a Pricewaterhouse Coopers survey, only 52 percent of family businesses expect members of the next generation to be able to run their business. Junior members lack of experience for running a company coupled with poor succession planning are the main culprits.

Get a Prenup for Your Business

If a premarital agreement can reduce headache and anxiety in the event of a divorce, then a similar mechanism for a family business – labeled a Shareholder’s Agreement* – will reduce anxiety and hard feelings when it becomes necessary to distribute assets or make tough decisions regarding the family business.

An agreement among shareholders or family owners lays the ground rules of a family business in terms of important topics such as governance, succession, transfer of assets, liquidity and taxes among others. A Shareholder’s Agreement may address such questions as:

  • Board composition:
    • Will each sibling be represented?
    • Will there be a board of directors?
    • Will executives from outside the family be allowed?
    • What training experience will be required?
  • Decision-making process:
    • What is the number of votes needed to approve key issues?
    • What is the method for dispute resolution?
    • What are the rights of family members?
    • Family members not involved in the business?
    • Non-family involved in the business?
  • Business and Owner Estate Plan:
    • Who are the business successors (both managers and owners of the business)?
    • What is the compensation for owners?
    • What is the remaining profit distribution?
    • What are the taxation implications upon sale or transfer of ownership?
    • Is there an estate plan? Is it in writing? Is there a timeline for implementation?

Although many small businesses fail, by addressing these issues a small business owner takes steps towards ensuring his or her family’s interests while saving money, and avoiding conflict.

Careful estate planning can ensure that a family business continues to benefit family members and that ownership of the business is not diluted until the business is ready to accept outside investors. Owners’ estate plans should use trusts or other mechanisms to restrict the ability of their heirs to transfer shares. A successful family business is an excellent means to provide financial security for the small business owner and his or her loved ones as well as employment opportunities for interested family members.

Estate planning is a complex field. Whether you are concerned with devising a plan for either a family estate or that of a business, it is important to get good advice. The attorneys at Lonich Patton Ehrlich Policastri have decades of experience handling complex estate planning matters including business succession plans, wills, and living trusts. If you are interested in developing an estate plan or reviewing your current estate plan, contact the experienced estate planning attorneys at Lonich Patton Ehrlich Policastri for further information as we are happy to offer you a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

*Source

 

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2014-07-15 09:14:432021-12-22 20:38:25Your Business Exit strategy should start today

How to Keep the Family Baggage Out of the Family Business

February 20, 2014/in Business Law, Estate Planning /by Michael Lonich

Family businesses are often the pride and joy of the entrepreneurs who created them – especially if the business has flourished and has been passed down for multiple generations. However, no matter how successful a company is or how many generations it has survived, conflicts can significantly undermine the company’s continued success. Some of the reasons many family businesses run into conflict are over:

  1. Company Resources: Money, money, money. Historically heralded as the root of all evil, money is often at the root of all family business troubles. Resources are limited and folks must be compensated, leaving plenty of opportunity to squabble over nickels and dimes.
  2. Company Strategy: Strategy is a substantial part of running a successful business. Without a similar outlook with regard to strategy, the business will remain at a standstill. Sometimes, discussions regarding strategy will cause disputes because one family member may believe that Strategy A is the best course of business, whereas another family member vehemently believes that Strategy B is far superior.
  3. Company Values: Often times, interests and values will change over time, and family members from different generations will value different aspects of the business. Family members running a family business must have the same outlook for the company and aim to reach the same goals. Otherwise, the business will remain stagnant until these differences are resolved.
  4. Company Rivalry: Just like sibling rivalry is very real, so are rivalries within a family business – so much so that the best interests of a company can take a backseat to upstaging a competing family member.

 

So with all these possible issues of contention, how can a family successfully run a family business without the family baggage? Here are some options to consider implementing:

  1. Appoint independent directors: Having independent directors will ensure that someone with an objective perspective is monitoring the family and offsetting any improper family influences. The family will monitor management, and this independent third party will monitor the family.
  2. Hold regular family meetings: Don’t wait for issues to arise before scheduling a meeting – have them regularly and in taking such preventative measures, perhaps some conflicts can be avoided altogether. Specifically include shareholder sand those who influence the decision-makers.
  3. Evaluate performances: By evaluating performances, the business can have an objective look at how employees are performing (or not performing). This ensures that employees are promoted and compensated not for their familial relationships, but for their commendable performance.
  4. Talk to a professional: Have a professional evaluate your family business – perhaps they can help your family build a business succession plan and help resolve other issues involved in your family business.

 

Business succession planning is a highly complex area of law. If you have any questions regarding your family-owned business, please contact the experienced business attorneys at Lonich Patton Ehrlich Policastri for further information. The attorneys at Lonich Patton Ehrlich Policastri have decades of experience handling complex business succession matters and we are happy to offer you a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Source: http://www.bizactions.com/n.cfm/page/e110/key/254350972G1005J3585631N0P43P2122T3/

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2014-02-20 09:53:282021-12-22 21:12:22How to Keep the Family Baggage Out of the Family Business

Protecting the Hand-Me-Down Business

February 12, 2013/in Business Law, Estate Planning /by Michael Lonich

Big businesses routinely have succession plans in place. Do smaller family-owned businesses? Infrequently, which is surprising and unfortunate. Without well thought-out succession plans in place, many family-owned businesses cease to exist.

To be sure, many family business owners would love to eventually “pass the torch” to a son or daughter. But what will happen in the event of sudden death or disability before they are ready to accept the responsibility? It is in the best interest of all parties involved that a proper estate plan is in place to avoid probate of business assets. The probate process is expensive, may take upwards of two years, lacks privacy, and takes nearly all control out of your family’s hands. Additionally, a plan could eliminate potentially crippling estate taxes on the business.

A business is a sophisticated property interest. For an owner of a small family business, however, the business is more than just a source of income—it represents the history and livelihood of their clan. With adequate planning, the business and its value may be protected, perhaps by creating a family limited partnership or by placing the family’s assets into a living trust. There can be significant estate tax advantages to creating a limited partnership for your family business and transferring minority interests to future inheritors.

Estate planning is a complex field. Whether you are concerned with devising a plan for either a family estate or that of a business, it is important to get good advice. The attorneys at Lonich Patton Ehrlich Policastri have decades of experience handling complex estate planning matters including business succession plans, wills, and living trusts. If you are interested in developing an estate plan or reviewing your current estate plan, contact the experienced estate planning attorneys at Lonich Patton Ehrlich Policastri for further information.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2013-02-12 09:46:002021-12-22 21:27:39Protecting the Hand-Me-Down Business

Commonly Used Terms in Probate and Estate Planning

January 6, 2010/in Business Law, Estate Planning /by Lonich Patton Ehrlich Policastri

Beneficiary – Someone who gets something from a trust. A person who gets money from a trust is called an income beneficiary. A person who gets property from a trust is called a remainder beneficiary.

Will – A legal paper that says what a person wants to happen to his or her personal property after s/he dies.  The person who controls the Will can change or cancel it at any time before they die.

Probate Estate – All the assets in an estate that are subject to probate. This does not include all property. For example, property in joint tenancy, or an IRA account are not part of the probate estate.

Conservatorship – A court proceeding where a judge picks someone (a conservator) to take care of an adult’s personal needs (Conservatorship of the person) and/or his or her finances (Conservatorship of the estate).

Guardianship – A court proceeding where a judge chooses someone to care for a person under age 18 or to manage his or her property, or both. Guardianship of the person gives someone who is not the child’s parent custody and control of the child. Guardianship of the estate gives someone (parent or not) the right to manage the minor’s property until the child is 18.

Trust – A trust is when one person (trustee) holds title to property for the benefit of another person (the beneficiary). A person called the settlor (or trustor) creates the trust and puts the property in the trust. The settlor, trustee, and beneficiary can be different people. But, one single person could be the settlor, trustee and beneficiary.

Joint Tenancy – When 2 or more people own something and have rights of survivorship. This means that if 1 tenant dies, his or her share goes to the other tenants.

Totten Trust Account – A type of savings or checking account. The money that’s left in the account when the owner dies goes to the person the owner chose. It is not subject to probate. The same as P.O.D. (payable on death) accounts. P.O.D. accounts are more common.

Litigation – A case, or lawsuit. The people in a lawsuit cannot agree, so they present evidence and let the court decide.

Will Contest – When you challenge the validity of a Will in probate court. You can challenge a Will because: it was not executed properly; it was cancelled or revoked; the testator was not capable of writing it.

Executor – The person or company named in a Will to carry out the Will’s instructions. Usually, the probate court supervises the executor.

Letters Testamentary – Court papers that let someone be the personal representative of a probate estate.

Fiduciary – A person who acts for another person’s benefit, like a trustee, guardian, or personal representative. It also means something that is based on a trust or confidence.

Intestate – To die without a valid Will. Or, a person who dies without a Will.

Intestate Succession – State laws that say who gets a person’s property when s/he dies without a Will. Or, what happens if the Will does not say what to do with the property.

With help from the Superior Court of California, County of Santa Clara website.

http://www.scselfservice.org/probate/prop/FrequentlyAskedQuestions2.htm

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Lonich Patton Ehrlich Policastri https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Lonich Patton Ehrlich Policastri2010-01-06 13:15:262021-12-22 22:04:43Commonly Used Terms in Probate and Estate Planning
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