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You have likely taken steps to protect your business from common threats such as natural disasters, theft, and fire by purchasing insurance to compensate you in the event of a loss caused by a covered event. Have you considered though what would happen to the business if something happened to you? Not only could your business suffer considerable economic losses in your absence, but the entire business could go under without you at the helm. Incorporating business succession planning into your overall estate plan helps to ensure that your business continues to successfully operate in the wake of your sudden death or incapacitation.
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No two business succession plans are the same because no two businesses are the same; however, there are some common goals and objectives that most business owners try to achieve with their plan, including:Creating the most advantageous legal structure for the business.
- Making sure that your family will continue to benefit financially from the success of the business in the event of your incapacity.
- Designating someone to take over the immediate day to day control of your business if you are incapacitated tomorrow because of a catastrophic accident or debilitating illness.
- Ensuring that everyone impacted, including employees, business associates, and family, is prepared to accept your designated replacement.
- Preparing the necessary legal documents to ensure that your designated replacement will have the legal authority required to step in and take over.
- Putting a plan in place for someone to take over permanently, or to sell the business, in the event of your death.
- Keeping the business out of probate if possible.
- Devising a plan to value your interest in the business at the time of your death.
- Preparing the next generation to take over the business if you plan to keep it in the family.
- Anticipating the tax implications for the business in the event of your death.
- Making sure sufficient liquid assets are available to cover any tax debt that might be owed when you die.
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Management continuity focuses on what happens in your absence. Who will take over the day-to-day management of your business? Never assume that someone is willing and able to do so, even if that person is an adult child or even a trusted senior employee. Even if they are, does he/she have the legal authority and practical capacity to step into your shoes? If not, the business could falter rapidly.
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One popular method used to transfer ownership of your business from one generation to the next is to create a Family Limited Partnership (FLP). An FLP allows you to transfer your legal interest in the business to the next generation slowly, over time, while maintaining control over the day-to-day management of the operation until such time as you are ready to retire. In addition, you may be able to gain tax advantages by using an FLP to transfer interest in your business to future generations.
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For small business owners that do not plan to pass the business down to the next generation, it is a good idea to plan ahead for the sale of the business in the event of your death or capacity. One option is to enter into a Buy-Sell agreement. A Buy-Sell agreement guarantees that you (or your loved ones) will receive the fair market value of your interest in the business in the event you, or your surviving loved ones, must sell it later. In essence, a Buy-Sell agreement is a binding agreement between you and someone who agrees to purchase your interest in the business in the future for a pre-determined price or using a fixed method of determining the fair market value at the time of the sale.
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Liquidity refers to cash assets or assets that can be readily converted to cash. A small business often lacks sufficient liquidity, particularly when they are relatively young businesses or when they are farm/ranch operations. All too often, the business’s assets are tied up in things such as equipment, supplies, merchandise, or livestock that cannot easily be converted to cash. In the event of your death, however, your entire estate could be subject to federal gift and estate taxes which are calculated based on the value of your estate, without regard to whether your estate assets are liquid or non-liquid assets. If your business lacks sufficient liquid assets to pay any tax due, critical assets might have to be sold to pay the tax, putting the entire business at risk.
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Contact Us
If you have additional questions or concerns about business succession planning in the State of Indiana, contact an experienced Indianapolis, Indiana business succession planning attorney at Frank & Kraft. by calling (317) 684-1100 to schedule your appointment today.
