Posted on 01 September 2010
Many times small business owners get so caught up in the day to day activities of their business that they either ignore the fact that they have poorly planned their estate, or they simply keep putting it off and putting it off. Also, there is a common misperception out there that estate planning is only for people with high net worth. This is NOT true. Estate planning is more than just making sure that your assets, whatever they may be, go to the right people or organizations. It is about making sure your family and loved ones are taken care of, and that your wishes and instructions are followed, in the event or your death or disability. And for the small business owner, it is about making sure that his/her interest in the business is managed and/or passed along in the proper way.
Here are some steps and tips that anyone can take to put a simple estate plan in place:
- Have a will drawn up. Your will should state who you want to inherit your assets when you die. If you are married, make sure that both you and your spouse each have a will. If you have children, you should name a guardian for those children in your will; you may also want to have your will create a contingent trust to hold and distribute assets for your children until they become adults (naming a trustee to administer the trust also). Our Indiana Simple Will allows you to do all of that.
- Get a Durable Power of Attorney. A Durable General Power of Attorney is usually used to allow your attorney-in-fact to handle all of your affairs during a period of time when you are unable to do so. A Durable General Power of Attorney is frequently included as part of an estate plan to make sure that you have covered the possibility that you might need someone to handle your financial affairs if you are unable to do so.
- Consider a Trust. Trusts allow you to put conditions on how and when your assets will be distributed when you die. They also may reduce estate and gift taxes, as well as allow for distribution of assets to your heirs without the cost, delay and publicity of probate court. Some also offer greater protection of your assets from creditors and lawsuits.
- Create Advance Health Care Directives. Healthcare Directives / Advance Directives protect your right to refuse any medical treatment you do not want, or to request any treatment that you do want, in the event that you lose the ability to make decisions for yourself.
- Appoint a Healthcare Power of Attorney / Healthcare Personal Representative. A Healthcare Power of Attorney lets you name someone to make certain decisions (healthcare, financial…etc) on your behalf in the event you are unavailable or not able to speak for yourself. Your can also appoint a “health care representative” – which under Indiana law means that person may make decisions concerning the withdrawal or withholding of health care; without being appointed as your healthcare representative, your attorney-in-fact will not have this power. Our Indiana Healthcare Power of Attorney form allows you to do this.
- File Beneficiary Form for Bank Accounts. Naming a beneficiary for your bank accounts and retirement accounts typically makes those accounts ”payable on death” automatically to your beneficiary – skipping the probate process. Talk to your bank or retirement account administrator.
- Explore Life Insurance. If you have minor children and/or a mortgage, or will have other unpaid debts when you dies, you should consider obtaining a life insurance policy. Here is an excellent post on exploring life insurance options.
- Discuss Your Estate Plans With Your Heirs and People that are Responsible (trustees, executors…etc) under your plan. This will help prevent confusion about inheritance and what your wishes are, regardless of how well they are spelled out in writing. Make your wishes known regarding organ donation whether you desire burial or cremation.
- Plan Ahead for the Succession of Your Business. Make sure your wishes regarding how the ownership passes are known, planned for, and properly documented. If you are not the only owner, make sure you have a buy-sell agreement in place with the other owners.
Posted on 27 July 2009
When people consider buying or selling a business, they will usually think of it is as a single, simple transaction – they “sell” the business and get lots of cash in return. Not quite. As with most things in the world of business (and through the eyes of lawyers), the process of buying or selling a business can be very complicated. In fact, there are many, many methods in which to accomplish the “sale of a business.” Below I have outlined the basic, most common methods used for selling a business. I will be posting follow-ups to this post dealing with each individual method in the near future.
- Stock Sales. In a stock sale, the buyer purchases the outstanding stock issue by the selling corporation – or in the case of an LLC, the outstanding membership interests. The buyer typically assumes all liabilities of the Seller, unless otherwise agreed by the parties. The Buyer gets a carry-over basis in seller’s assets. Seller’s shareholders will pay taxes on the appreciation in their shares. Sellers will usually prefer stock sales due to the advantageous tax position as well as the assumption of liabilities (creating a clean break for the seller’s shareholders).
- Asset Sales. In an asset sale, the buyer purchases seller’s assets, and assumes only those liabilities that it agrees to assume. Any liabilities not assumed remain the obligation of the Seller. Typically the selling company with distribute the sale proceeds to its shareholders via a dividend. With the exception of a pass through entity, the selling company will pay taxes on the asset sale, and the shareholders will pay taxes on the dividend. The buyer gets a stepped-up basis in seller’s assets. Buyers usually prefer an asset sale to a stock sale.
- Mergers. In a merger, the target company (i.e. the seller) typically merges with and into the buyer company – which survives the merger. This is typically accomplished by the buyer converting the stock owned by seller’s shareholders into the consideration given for the merger
- Tax-Free Reorganizations. Although there are many forms of a tax-free reorganization, the basic concept of a tax-free reorganization is that buyer pays the purchase price by using buyer’s own stock as the consideration, which results in a tax free transaction, except to the extent of any “boot” received by the seller’s shareholders.