Building a business is hard work. From the initial planning stages, to execution, to the day-to-day management of the business, there is a lot to do. With so many pressing obligations, it’s no wonder that estate and succession planning are usually the last things considered by business owners.
But, as a business owner, your business is probably one of the largest and most important assets you have. Protecting it, yourself, and your family must be made as much a priority as the day-to-day management. In order to properly protect your future, it is critical that you have a business succession plan.
Just like in your personal life, as the owner of a business, you need to plan for what will happen when/if you become temporarily or permanently incapacitated or disabled, retire, die or sell the business so that your business will continue despite such an event. You may want the business to survive with whoever you choose receiving the value of your ownership interest. Likewise, if your business has multiple owners and you depart, for whatever reason, the remaining owner(s) usually will want to retain ownership and control and may not want to be in business with your creditors, surviving spouse and/or heirs. If you are temporarily or permanently incapacitated or disabled or die unexpectedly the consequences for your business could be detrimental, from an upheaval in day-to-day operations, to an uproar between people trying to control the business in your absence. This all leads to loss of business profits or the business completely. With a plan, your business will be run by who you want, according to your wishes.
Most business owners have their estate planning prepared because they are worried about what will happen to their business after they are dead. However, proper estate planning has the added benefit of allowing you to make plans for what will happen if you are incapacitated or needing to be away from your business for an extended period of time.
As the owner, you are responsible for the day-to-day operations of your business. This is a full-time responsibility. But what will happen if you can’t be there all the time? You don’t necessarily have to be in a coma to be unable to participate in your business. You could be on an extended vacation or have a medical diagnosis that requires you to take several months away for treatment or recovery. During this time, your business needs to continue on so that you and your employees can continue to take home money.
It is important to think ahead about who will be in charge of the day-to-day operations because a ship without a captain can be dangerous. Not only does this individual need to understand the business, he or she needs to have the respect of your employees, and be confident in making tough decisions in your absence. Without this planning, everyone could jump to the conclusion that he or she is in charge, or alternatively, no one will step up, resulting in chaos either way.
If you have family members working in your business it is also important to explain to them what will happen in your absence and who will be in charge so that someone does not assume they are in charge just because they are family. Importantly, remember that just because your family is involved with your business does not mean that he or she is the best choice to succeed you.
● Enhancing the value of the business; ● Preserving the value of the business; ● Exchanging the value of the business for money with the least amount of taxes; ● Meeting personal and family needs by providing security and continuity of the business in case of the owner’s premature departure; ● Leaving a legacy; ● Giving money to charity; ● Shifting wealth to younger generations; ● Rewarding key employees; ● Keeping the business (or selling the business) at the owner’s death; and/or ● Taking the business to the next level.
Most owners have no idea what their business is worth, but knowing its value can be helpful in achieving many goals, especially if a sale is a potential goal. In the meantime, knowing what your business is worth will help in projecting cash flow, estate and gift tax planning, knowing how much insurance to purchase for buy/sell agreements, compensation planning, knowing available collateral for financing, and retirement planning. It is a good idea to discuss business valuation needs with your estate planner, business advisors, and tax professionals. This does not necessarily mean you must obtain a formal appraisal of the business (although for some goals, you might need to). For many purposes, a “rule of thumb” valuation based on a multiple of earnings can be used as an inexpensive approximation of value.
The ability to sell and the value of the business are both affected by intrinsic factors (e.g. how the business has grown); extrinsic factors (e.g., the local and general state of the economy); and the effectiveness of the sale process. You need to be aware of each of these and have a strategy to maximize the value of your business in the event you have an unfavorable factor working against you.
When looking to make a transfer of the business, there are two types of transfers to consider - to those who are in the business (whether it be a child or key employee) and to outsiders (third party sale). Each has special characteristics.
1. Sale to Children or Key Employees: Your main goal may be to sell the business to your children and/or key employees. This can be a great way to motivate and help retain key employees and family involvement in the business. In order to fund this type of sale, the money usually has to come from the ongoing business, so planning is critical to help reduce the risk of a buyer default and to increase the amount of money you will receive.
In some cases, you may decide that you wish to gift part or all of the business to your children instead of selling it to them. This can be helpful if you need to remove assets from your estate, if your children do not have the cash flow to purchase the business from you, or when your overall estate planning goals are best met by a gift of the business.
2. Sale to Outside Buyer (Third Parties) There are several benefits to selling your business to an outside buyer, such as: receiving cash at closing, not having to finance the sale yourself, no family succession issues, and an increased speed with which you can exit the business. However, this option is not without its difficulties. Everything must come together just right to successfully complete the sale of a small business. Without proper planning, it can be very difficult to find a buyer who is willing to pay your desired price. A third party is purchasing your business to make money and most likely will not have the same emotional attachment that you, your children, or your employees have to the business. The numbers are going to be what matters to them.
Copyright © 2021 The Law Office of Melissa L. Carvajal, P.C. - All Rights Reserved. Office located in Long Island, New York.
ATTORNEY ADVERTISING - Prior results do not guarantee a similar outcome. This website is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this site are encouraged to seek independent counsel for advice regarding their legal issues.
Licensed in New York.
Powered by GoDaddy Website Builder
We use cookies to analyze website traffic and optimize your website experience. By accepting our use of cookies, your data will be aggregated with all other user data.