Part One of the Dynasty Family Business covered necessary characteristics a family business needs to become a Dynasty Family Business, and was posted on May 24, 2017.  In this second part, the passage of ownership will be explained.

The “live forever plan” has not yet been shown to be successful.  For a family business to be dynastic, there must be a successful transition of ownership or a passage of ownership.  A lifetime transfer of ownership allows a donor to “see” how the transferee acts as an owner.  This causes the family member who becomes an owner to have some “skin in the game”, which can impact their actions and perceptions.

When the time comes to sell the business their are important factors to keep in mind.  If a shareholder sells stock or membership units, the sale can create a taxable event for the seller.  If a shareholder sells stock or membership units at a discount, the sale can create a gift to the buyer.  The purchase of newly issued stock at a discount may create compensation for the Buyer.  In regards to the purchases and sales of the business, there is no need to transfer the whole company at once.  You could create a series of Options, an installment sale, or you could transfer part of the business during your lifetime and the other part after passing.  These payments could be made over time creating a retirement income.  All sales among family members or sales by the company of newly issued stock/membership units to a family member should be memorialized in a stock purchase agreement.  By doing this, it will provide representations and warranties on which the buyer can rely.  This is critical when the Buyer is paying over a period of time and/or the Buyer has rights to acquire more in the future.  This can be used to refute allegations of a gift, provides evidence of basis for the buyer, and this can promote family harmony by providing evidence of a “real” transaction rather than favoritism.  Until the transferee owns ALL the stock/membership units, there should be a Buy/Sell Agreement whereby the Seller (which could be the Company) can reclaim the stock/membership units in case the transferee dies, becomes disabled, quits or is terminated.  Gifting the company can remove assets from a donor’s taxable estate at a discounted value, could create a future tax problem for the transferee (they take the donor’s basis), and could cause disproportionate gifting (or perceived disproportionate gifting) which could create family discord.

Some choose to transfer ownership post mortem.  An agreement like this may be made during a lifetime and can take effect after passing.  It is important that plans such as this be in writing and in a way to fully express all of the terms of the transaction.  This could be funded in whole or in part by insurance, it can provide liquidity for an estate, and this could “equalize” the estate if there are multiple beneficiaries.  A Will or Revocable Trust can contain provisions to sell the stock/membership units.

When bequests are made, the recipient takes fair market value as “basis” for tax purposes.  Disproportionate bequests can create family discord: “fair” is not always “equal”; and “equal” is not always “fair”.

Absence of a Will or Trust can create problems.  It can lead to a discounted sale or closure of the business, which in turn can cause valuable employees and clients to leave the business, and can cause the termination of a franchise agreement.  When there is no Trust or Will, the Executor/Trustee runs the business until distribution of the stock/membership interest.  In the absence of a family agreement, the Spouse gets 50 – 100{7643a07be85def2dedbecc56bad3bab67e83a7c22b809f3c7a47a1fa73b8911c} and any share that does not go to the Spouse is divided between the children equally.  All beneficiaries are entitled to their pro-rata share of ALL assets of the deceased, including the stock/membership units.   Recipients may not be qualified to make necessary business decisions.

Dynasty Family Business does not just happen.  They have certain characteristics which set them apart form those family businesses which close or pass outside of the family.  To successfully establish a Dynasty Family Business, documentation of the transfer of the ownership of your business within your family is critical.

Please contact our office at 515-727-0900, or at info@kreamerlaw.com when you are ready to form your business to become a Dynasty Family Business.

 

 

Absent an estate plan, the Iowa Code governs these matters.

A court will decide who is best suited to distribute your property after you pass.  This may not be the same individual you would choose.  Similarly, the Iowa statute establishes a plan for distribution of your assets which may or may not conform to your wishes.  If there is no Will:

• A surviving Spouse gets all of the Estate if you do not have children or if all of your children are also children of the surviving Spouse.
• If you have children who are NOT the surviving Spouse’s children (i.e. a “blended” family) the surviving Spouse get half and the children who are NOT children of surviving Spouse get half.
• If there is no surviving Spouse and you have no children your Estate goes to your parents (in equal shares).
• If there is no surviving Spouse, children or parents, your Estate will go to your siblings in equal shares.
• If there is no surviving Spouse, then your children get everything in equal shares with no opportunity for a trust.  A court would establish a conservatorship for assets which would otherwise be given to minor beneficiaries, and there are significant limitations on actions a court appointed conservator can take without prior court approval.

Similarly, if there is no surviving spouse, a court has to appoint a guardian to raise your children.  This may or may not be the same individual you would choose, and accordingly, they may or may not raise your child in the manner you would want them to.

Estate Planning is the set of declarations of what you want to have happen when you can no longer make decisions for yourself due to death, injury or illness.

Normal Estate Planning includes Wills,Powers of Attorney for Health Care, and Powers of Attorney for Financial Matters.

• A Will controls the distribution of your property after you pass, and also establishes who would be guardian for children who have not reached “legal age”.
• A Power of Attorney for Health Care (sometimes called a “medical directive”), appoints someone to make health care decisions for you if you cannot make one for yourself.  This normally includes directions on whether to engage in, or withhold, “life sustaining procedures.”
• A Power of Attorney for Financial Matters appoints someone to make financial decisions for you if you cannot make one for yourself.  This normally includes the power to sell your property.

Estate Planning can also include trusts.

• A trust is a series of instructions to a trustee on how to manage the assets entrusted to them.  Those instructions, normally include some direction on how the income of the trust is to be used and when the trust’s assets will be distributed to the specified beneficiaries.
• Trusts can be created in a Will (called a “testamentary trust”) or can be established separately (called an inter-vivios trust).
• We commonly include a trust in Wills to protect potential beneficiaries who are minors at the time of execution of a Will (like children) or could be minors at the time of your passing (like grandchildren).