Small Business Estate Planning

February 27, 2017

Estate Planning for a Closely Held or Small Business

In addition to focusing on their business strategies, small business owners and owners of closely held businesses must also address the typical estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. concerns that our other clients face. Yet, these business owners must also address the objectives and issues presented by an ongoing business, especially where those businesses comprise a substantial part of the client’s assets. Not addressing the unique estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. aspects of an ongoing business can result in disagreements amongst family members, power struggles, and non-interested family members gaining too much control over a business upon the death of the owner.

At Wokwicz Law Offices, our firm has been guiding clients in Kenosha and across southeast Wisconsin through the process of small business estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity.. This article details some of the key considerations surrounding this specific area of estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity..

Coordinating an Estate Plan for the Small Business Owner

An estate plan willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. normally address unique assets directly as part of the estate plan. In addition to the typical estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. concerns, small business owners generally need to address additional estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. challenges and opportunities unique to that small business owner. A simple trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. and power of attorneySee Power of Attorney for Health Care, Financial Power of Attorney, and Durable Power of Attorney. may not be enough where a small or closely held business is part of the estate assets. Avoiding probateThe court process proving the validity of a Will and conducting the orderly Inventory, Accounting, and Administration of a decedent’s assets under a Will or under Intestacy laws if there is no Will. The probate process in Wisconsin typically takes between six to twelve months in Wisconsin and can take longer in some cases. Probate can be avoided by proper Estate Planning and through the use of beneficiary designations, Transfer on Death Deeds, Marital Property Agreements and Trusts. and addressing all of the usual concerns, without addressing the small business issues directly, can leave a hole in the estate plan that results in unintended family issues.

Addressing Small Business Owner’s Estate Planning Needs

A properly crafted estate plan for a small business owner willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. need to address and consider the following questions to ensure that the plan is as thorough, robust and comprehensive as the client needs.

• Is a small business or substantial ownership interest in real estate to be sold or inherited by certain family members?
• How willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. the current owner’s desires, directions, and requirements be addressed following the owner’s death?
• How willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. co-owners be handled? WillA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. there be a buy-sell agreement allowing or requiring the surviving co-owners to buy out the deceased owner?
• Is a child or are children active in the business? WillA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. these children inherit the business in lieu of or in addition to other assets?
• What is the corporate or entity type of ownership and willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. that affect the plan?
• If the business is to be inherited by family members, willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. there likely be family disputes that need to be addressed?
• WillA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. the business be held in a trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. or willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. some form of voting rights need to be separated and addressed amongst various owners?
• WillA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. there be taxes at death that need to be paid and addressed as part of the estate plan?

As you can see, the ownership of a small business creates additional issues and opportunities to address during the small business estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. process.

It is important that these type of issues and other unique concerns and family situations be addressed as part of the estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. process.

Transferring a Small Business to Next Generation Family Members

Some clients willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. have a buy-sell agreement where other co-owners willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. buy-out the deceased owner, or where the business willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. be sold to third parties upon death. However, sometimes the goal is to pass on a business to the children as part of the estate plan. An issueA person’s children and/or lineal descendants such a grandchildren and great-grandchildren. It refers to a direct blood line in Wisconsin along with legally adopted persons. In Wisconsin the term “issue by right of representation” is commonly used to indicate that a share of beneficiary, if predeceased, shall be distributed to his or her children or lineal descendants. Although slightly different this is often also referred to as Per Stirpes distribution. can arise where there are multiple family members in the business and where there are family members who are not part of the business. This latter situation is one of the more common situations that our estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. attorneys are called to address for clients.

It can be easy to address an on-going business where all of the children willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. be equal owners and all are actively involved in the business. Sometimes, the estate plan in these types of situations willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. simply leave the business equally to the children. However, there are still some concerns that need to be addressed, such as voting rights among the children, and how ownership willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. be dealt with on the death of a child. We want to avoid family conflict and avoid having unintended spouses of children or grandchildren involved in the business. Therefore, some well thought out structure for future generations is normally advisable, even where all of the children are active in the business. Two common estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. scenarios are:

1. Only certain children willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. have voting rights or willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. be responsible for business operations; or,
2. Maybe certain children willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. have superior voting rights versus other children.

Of course, these are only two potential resolutions. There are certainly additional approaches to resolve how best to pass along a business to multiple children.

Treating Children Equally and Limiting Ownership to Operating Children

Most of our small business estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. clients want to treat their children more or less equally, where possible. However, many business owners have children that are not actively involved in the business which raises additional questions to address. WillA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. the non-active children receive ownership in the business and if so, willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. they have voting rights? WillA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. the non-active children not receive an ownership interest in the business and instead receive some other assets or benefits? In these cases, being treated substantially equally requires some additional planning.

Often for very good reasons, our clients want to limit the ownership to the children actively involved in the business. This can help avoid future disputes over minority rights, dividends and salary amounts for those actively involved in the business versus those not actively involved. Voting rights and the ability to determine the direction of the company can also raise issues between those actively involved and those who are not.

Often enough, spouses of children may also feel that they have a right to be involved in the business. If both actively involved and non-actively involved children willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. be owners, it is important to address voting rights and the governance of the business by the children. Trying to anticipate challenges and potential disagreements and addressing them as part of the estate plan is an important step to maintaining family harmony in these types of situations.

Small Business Buy-Sell Agreements

A buy-sell agreement, sometimes called as a cross-purchase agreement, gives one owner the right to purchase another owner’s interest upon a certain event, such as death,disability, or even retirement. It could also apply to children who inherit the business following the business owner’s death as a prerequisite to inheritance.

At our firm, we use these agreements to help limit the “wrong” people becoming owners of a business. For example, often with multiple owners, the surviving owners do not want the deceased owner’s ownership to transfer to a spouse or others outside the business or family. These can also set forth items such as mandatory or optional buy-backs, how to value the business, payment terms, life insurance proceeds, marital propertyA law for married persons with respect to ownership and rights in and to assets, property, and income during life and upon death of a married couple. Marital Property law is unique to the State of Wisconsin, but is a form of and based upon many principals contained in Community Property law. laws, and other issues including shareholder agreements for certain type of corporations.

Double Step-Up At Death of First Spouse

Ensuring that ownership is properly structured between the current spouses to ensure that there willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. be a double step-up for the tax basis on the first spouse to pass is another issueA person’s children and/or lineal descendants such a grandchildren and great-grandchildren. It refers to a direct blood line in Wisconsin along with legally adopted persons. In Wisconsin the term “issue by right of representation” is commonly used to indicate that a share of beneficiary, if predeceased, shall be distributed to his or her children or lineal descendants. Although slightly different this is often also referred to as Per Stirpes distribution. that we typically address.

Since Wisconsin is a marital propertyA law for married persons with respect to ownership and rights in and to assets, property, and income during life and upon death of a married couple. Marital Property law is unique to the State of Wisconsin, but is a form of and based upon many principals contained in Community Property law. state, which is a form of community propertyOwnership of property in “community property” states under which married persons property and income may be considered owned by both spouses in certain circumstances, such as property acquired during the marriage. This is relevant to Wisconsin Estate Planning, as Wisconsin is a Marital Property state which is a form of Community Property. Also see Marital Property and Marital Property Agreement., IRS rules allow for a full or double step-up (or down) to the basis of the property on the first spouse to die if ownership is held as marital propertyA law for married persons with respect to ownership and rights in and to assets, property, and income during life and upon death of a married couple. Marital Property law is unique to the State of Wisconsin, but is a form of and based upon many principals contained in Community Property law.. Therefore, sometimes ownership adjustments between spouses are required or a marital property agreementA document created by married persons in advance of marriage (prenuptial agreement) or following marriage (post-nuptial agreement) to agree with or alter the pre-set Wisconsin Marital Property laws. A Marital Property agreement can also be used to direct that property, upon death of one or both spouses, shall be distributed to a trust or person to avoid probate. In Wisconsin, a Marital Property Agreement can be used to help fund a Revocable Trust at the death of a spouse of both spouses to avoid probate and can be referred to as a Non-Probate Marital Property Agreement. is advisable to ensure that the double basis step-up applies on the first spouse’s death, thereby allowing a sale or transfer prior to the second spouse to pass with an increased tax basis. In addition, sometimes a trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. and marital property agreementA document created by married persons in advance of marriage (prenuptial agreement) or following marriage (post-nuptial agreement) to agree with or alter the pre-set Wisconsin Marital Property laws. A Marital Property agreement can also be used to direct that property, upon death of one or both spouses, shall be distributed to a trust or person to avoid probate. In Wisconsin, a Marital Property Agreement can be used to help fund a Revocable Trust at the death of a spouse of both spouses to avoid probate and can be referred to as a Non-Probate Marital Property Agreement. limit the rights of a surviving spouse’s ownership, especially in second marriage situations.

Tackling Your Small Business Estate Planning

At Wokwicz Law Offices, our estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. lawyers have helped hundreds of owners with their small business estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity.. Those estate plans thoroughly address and protect the many particular concerns that come with small or closely-held business ownership. We invite you to contact us to learn how we can help address your estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. needs as a small business owner.