Business Succession Planning for Small Business Owners in MD

Serving Clients in Laurel, Maryland and the Surrounding Area

It would be an understatement to say that family businesses are the backbone of the American economy. Some 90 percent of all businesses in this country are either family-owned or family-controlled. They come in all shapes, sizes and colors, representing all sectors of our economy. From agriculture to services, technology and manufacturing, family businesses generate an estimated one-half of the U.S. Gross National Product and pay half of all wages earned in this country.

Not all family businesses are traditional small businesses either. In fact, roughly one-third of all businesses included in the Fortune 500 are family businesses. But not all of the family business statistics are rosy.

Family businesses tend not to outlive their founders. At any given moment, 40 percent of family businesses are in the process of transferring their ownership. Unfortunately, two-thirds of all initial transfers fail. Of the one-third that survives an initial transfer, only one-half will survive a second transfer. It is estimated that by 2040 about $10.4 trillion in family business owner net worth will be transferred.

Why Family Businesses Do Not Survive

Why such a dismal success rate? The reasons are as varied and unique as the businesses and business owners themselves. Nevertheless, many of the failed transfers can be traced to three causes: people, taxes and cash.

Family Business Owners and Estate Planning for the Family

The family element in every family business can mean the difference between its success or failure during the transfer process. The retirement, disability or death of the business owner are all common events that can trigger a business transfer.

Tough questions must be asked and answered. Otherwise, a business that took decades to build can be destroyed overnight.

For example, who will run the business after you? Will it be your spouse, one of your children or a non-family member key employee? If your spouse will not run the business, will he or she still be financially dependent on it… or can you make arrangements to ensure they are financially independent of it?

What arrangements have you made for the inheritance of your children who are not active in the business? Have you in-law proofed your estate?

Thinking ahead to the second-generation transfer of your business, what provisions have you made to encourage thrift and industry among your grandchildren?

Estate Tax Uncertainty

The only certainty about the federal estate tax is its uncertainty with each change in Congress and the White House. Additionally, some states, including Maryland, now impose their own estate taxes, independent of any federal estate taxes.

Accordingly, careful monitoring of the economic, political and legal climate is required. Why? Without proper estate-liquidity planning, your family may have to sell the business just to meet an estate tax cash call.

Coordinating Financial and Estate Plans

If your financial and estate plans are not carefully coordinated, there may not be enough cash to fund your objectives. An appropriately-funded estate plan can meet all of your people-planning objectives and provide liquidity for estate taxes (and business debts). Life insurance, owned in the proper amount, type and manner, may be effectively used to fund such money matters.

The Business Buy-Sell Agreement (BSA)

A BSA is a lifetime contract providing for the transfer of a business interest upon the occurrence of one or more triggering events as defined in the contract itself. For example, common triggering events include the retirement, disability or death of the business owner. An interest in any form of business entity can be transferred under a BSA, to include a corporation, a partnership or a limited liability company. Also, a BSA is effective whether the business has one owner or multiple owners. As a contract, a BSA is binding on third parties such as the estate representatives and heirs of the business owner. This feature can be invaluable when the business owner wants to ensure a smooth transition of complete control and ownership to the party that will keep the business going. Subject to certain Family Attribution Rules under Internal Revenue Code § 318, a BSA can help establish a value for the business that is binding on the IRS for federal estate tax purposes as provided under Internal Revenue Code § 2703.

Entity Buy-Sell, Cross-Purchase Buy-Sell
and Wait-and-See Buy-Sell Agreements

A BSA is commonly structured in one of three general formats: An Entity BSA, a Cross-Purchase BSA or a Wait-And-See BSA. Under an Entity BSA, the business entity itself agrees to purchase the interest of a business owner. Conversely, under a Cross-Purchase BSA, the business owners agree to purchase one another’s interests. The Wait-And-See BSA gives the entity a first option to purchase the interest before the remaining business owner(s).

In addition to these three general formats, a One-Way BSA may be used when there is one business owner and the purchaser is a third party. The selection of the appropriate BSA format is critical for a variety of tax and non-tax reasons beyond the scope of this discussion. However, no BSA is complete without a proper funding plan. Like a beautiful automobile without fuel in the tank, a BSA without cash to fund the purchase is going nowhere.

Funding a Buy-Sell Agreement

Some common options to fund the purchase obligation under a BSA include the use of personal funds, creating a sinking fund in the business itself, borrowing funds, installment payments and insurance. Of these options, only the insured option can guarantee complete financing of the purchase from the beginning. Accordingly, a proper BSA will include both disability buy-out insurance and life insurance. Since the health of the business owner determines their insurability, any delay in acquiring appropriate coverage could be fatal to the success of the BSA and, with it, the survival of the business itself.

Sources

Testimonials

Steve Z.

Erik and Wendy were patient and thorough. Great follow up. Made sure that I considered all aspects of estate planning and provided me with peace of mine for my family when I am gone.

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Michael C.

Probate Court “It went better than expected during a year of dealing with paperwork and going to the Courthouse several times. But in the end it worked out better than I could of hoped for. Certainly Recommend to anyone who needs a Lawyer to stop by, their right beside the Post Office on Main Street in Laurel.”

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Michael M.

Fantastic!! I came very confused after my wife‘s death and in a half hour with Tom I felt like I knew what I needed to do and they have been with me every step of the way. Very pleasant, knowledge and a great help in navigating areas with which I have no experience. Thank you very much!

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Keith B.

Tom is an excellent attorney who really knows his business. He won’t guide you wrong. Our kids grew up together & I’ve known him for decades. I know him form more than just his professional work. He is a very good man and someone you can absolutely trust

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Lynn D. C.

We had the Downs Law Firm set up a trust for us years ago and recently made an appointment to review the information and make some changes. Tom was very helpful in expediting the necessary changes. The office staff was very friendly. We have been very satisfied with the Downs Law Firm. We also used Tom’s services to have a will and other necessary documents drawn up for my Dad. We would recommend the Downs Law Firm to others.

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Cynthia F.

Tom Downs has always provided our family with expert and professional estate planning advice and documents. We highly recommended him to anyone living in the State of Maryland to seek out his advice and services for their estate planning needs.

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