Monthly Archives: January 2013

A Tale Of Two Business Owners

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The following is a true story of two businesses.  Two professionals owned their respective businesses and successfully built them into thriving practices.  Each professional decided to bring a partner on board to share the burden and benefit of ownership.  And, unfortunately, each professional died while still engaged while still practicing their respective trades, leaving their business partners and family members to pick up the pieces.

Professional A had entered into a buy-sell agreement with his partner.  The agreement was fully funded by having each partner buy a life insurance policy on the life of the other.  When A passed away, his partner submitted a claim to his life insurance policy.  Three months after A’s death, his partner received the proceeds from the insurance policy, and used them to buy out A’s widow.  The partner had complete ownership of the business and A’s widow received the full value of her husband’s hard work.

Professional B hemmed and hawed about preparing a buy-sell agreement with his partner.  A draft agreement was prepared, but never signed.  No funding mechanism was ever decided upon or implemented.  When B died, his partner decided that it was his hard work that created the value in the practice, not B’s.  B’s widow tried to buy the partner out, but the partner refused.  Lawsuits commenced with neither B’s widow nor the partner receiving the proper value for their hard work.  Three year’s after B’s death, the lawsuit is still not resolved.

The difference between the end results for A and B’s families illustrates how a properly executed and enacted business succession plan can be the difference between finding a way to move on and being mired in a conflict that outlives our relatives.  It is not enough to just have a succession plan for your business, but the plan needs to consider five important issues, namely:

  1. Who will own the business-Business owners must decide if their business will continue by transferring ownership within the company or to parties outside the company.  For family businesses, having children and other relatives who are divided between active and inactive participants in the business can complicate this issue.
  2. Who will manage the business-Many business owners focus solely on the ownership question without considering who will actually manage the business once they are gone.  Failure to name a successor and prepare that successor for the tasks he or she may face is a common reason for a business succession plan to fail.
  3. How will the buyout of the departing owner be paid for-Regardless of whether a funding mechanism exists, the departing owner or his or her estate will be taxed for the value of their business interest.  By preparing in advance for how a buyout will be paid for is crucial to not only maximize the value the departing owner or his or her estate receives, but also to prevent taxes from being paid from non-business related assets.
  4. For family businesses, what about non-owner family members?  In some instances, not every heir of a business owner will inherit a piece of the business he or she built.  This may create jealousy or resentment if the non-owner heirs are not equalized in some form.  Dividing non business assets more favorably to non owner heirs, purchasing life insurance for the benefit of non owner heirs and providing a non ownership income stream from the business are some examples of how to equalize the non owner heirs.
  5. Special issues for professional businesses (professional corporations and professional LLCs)-Under the New York Business Corporation Law, a professional business cannot be owned by individuals not engaged in the specific profession that the business is engaged in (medicine, law, etc.).  The family of a deceased professional will be able to receive a redemption of the deceased professional’s business interests.  However, without a defined valuation clause or buyout provisions, this may provide the family with only a fraction of the true value of their family member’s interest.

The failure of a business owner to plan for their eventual exit from their business, whether for retirement, death or disability, can wreak havoc for their business and family alike.  Planning ahead, as with all forms of planning, provides a business owner with their best chance of allowing both to thrive once they are gone.

Please contact info@levyestatelaw.com for more information about business succession planning.

Protecting Their Assets, Preserving Your Planning: Why Estate Planning Is A Key Tool For Other Advisors

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The question of why an individual or a family needs an estate plan is often asked and answered in a typical fashion.  Issues regarding proper distribution, the minimization of taxes, who controls assets and cares for children and how a person’s assets and family are protected from disability and incapacity are always part of my answer when it comes to stressing the importance of estate planning.

An additional concern that I raise is important not only to individuals who I work with to prepare estate plans, but also to the other advisors they work with.  Estate planning provides a prophylactic veil over the work of other advisors to ensure that their work is not compromised.  Many advisors recognize the importance of an estate plan to their specific planning and understand the consequences of their clients’ failure to plan.

Some examples of advisors who benefit from their clients’ establishing estate plans include (but are not limited to):

Financial Planners/Investment Advisors-Financial plans and investment portfolios are created with specific goals in mind and allocations based on the advisor’s strategy to achieve those goals.   Without an estate plan, a portfolio may be divided or distributed to persons that were not intended by the client and the advisors.  In addition, without a plan to delay, reduce or eliminate estate taxes or, alternatively, a way to pay for estate taxes, a portion of a portfolio may have to be liquidated prematurely.

Life Insurance Advisors-Life Insurance can be a great source of liquidity when someone dies since the proceeds of the policy will typically be paid prior to any estate taxes being due.   However, without consideration of a person’s assets, life insurance may create an estate tax where none would be due otherwise.  By working with an estate planning attorney to purchase or assign a life insurance policy to a trust, the full value of the death benefit can pass to the intended beneficiaries estate tax free.

Accountants-With many accountants serving as the “quarterback” for their clients over planning, having an estate plan in place ensures that the problems improper distributions or excess taxation harm their clients.  Some accountants will be responsible for the estate, gift and generation skipping transfer (GST) tax returns of theirs clients as well as fiduciary income tax returns for trusts and estates.  Having an estate plan in place makes the tax preparer’s job easier and less complicated.

Other Attorneys-Attorneys who practice in areas such as family, matrimonial and tax law will often be aware of the trusts and estates related issues that may complicate their work.   Real Estate and Corporate attorneys can also benefit from ensuring that their clients’ work with them is not compromised by estate related issues.   In some litigation matters,  having an estate plan in place can expedite the commencement or settlement of a lawsuit with a sick or deceased client.

In a similar vein, estate planning attorneys rely on our clients’ other advisors to help ensure the best results possible.  Advisors working together for the benefit a client enhances the client’s planning and the advisor’s reputation with the client.

Please contact info@levyestatelaw.com for more information.

The New Normal-Estate Planning in 2013 and Beyond

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Since 1997, the federal estate tax exemption and maximum tax rate have changed every year but three.   The exemption has changed eleven times; the maximum rate has changed eight times.  Many of these changes have been due to the temporary nature of the tax legislation that Congress have passed and each change came with a specific end date in mind.  With each change, estate planning attorneys have been forced to speculate as to where the exemptions and rates would end up after the expiration date of each new law.

But, with the passage of the Tax Relief Act of 2012, it appears this consistent uncertainty is coming to an end.  Amongst the many revenue related changes made permanent by this law were permanent extensions of the estate, gift and generation skipping transfer (GST) tax exemptions enacted in 2010.  Each exemption will be adjusted for inflation annually and it is estimated that the 2013 exemption will be $5.25 million.

On the tax rate side, the maximum rate for these three transfer taxes was increased from 35% to 40%.  In addition, the concept known as portability-the ability of surviving spouse to utilize the unused portion of their deceased spouse’s exemption-was also made a permanent part of the estate tax law.  This is a major benefit to couples where one spouse has more wealth than the other.

Beyond the Tax Relief Act, the annual federal gift tax exclusion was increased from $13,000 per beneficiary to $14,000.  Coupled with the extension of the lifetime gift tax exemption, this change will allow for further tax-free lifetime gifting.

The changes at the federal level were not matched by a corresponding change to local state estate tax law.  In the three states that make up the tri-state area, the state estate tax exemptions remain low (the maximum tax rates are significantly lower than the federal rates).  Connecticut ($2 million), New Jersey ($675,000) and New York ($1 million) residents will still need to plan their estates to delay, minimize and possibly eliminate their exposure to state level estate taxes even if their estates are well below the federal exemption amounts

The new certainty to federal transfer tax law does not mean we will not see further changes over the next year.  With the Supreme Court scheduled to determine the constitutionality of the Defense of Marriage Act this summer, same sex married couples may see their estate planning options increase if the court strikes down the law.  Furthermore, it is clear the President Obama will seek to find additional revenue to help balance the current budget deficit and cut our federal debt.  In past budgets, he has indicated a willingness to curb popular estate planning tools such as valuation discounts and complex trusts like GRATs and dynasty trusts to produce revenue.  Whether this will be able to pass a Republican controlled House of Representatives remains unclear if not incredibly unlikely.

Regardless of any future changes, the Tax Relief Act of 2012 has allowed estate planners to shift their focus from predicting where the transfer tax exemptions and rates will end up to simply providing our clients with the best possible advice.  For that reason alone, the Act is a tremendous help to taxpayers and planners alike.

Please contact info@levyestatelaw.com for more information on 2013 estate planning.