Elder Law Report
Elder Law Report
Safeguarding Your Business Legacy: Essential Estate Planning and Probate Strategies for Business Owners
Unlock the secrets to safeguarding your business legacy with expert insights from Brenton Begley and Jordan McIntyre of McIntyre Elder Law. Imagine a future where your business thrives seamlessly, even in your absence. That's what you'll discover as we explore the world of estate planning tailored specifically for business owners. We discuss why a general durable power of attorney is crucial for ensuring that a trusted person can make vital business decisions if you're unable to. Learn how to sidestep the often taxing probate process by setting up a revocable trust or integrating a strategic succession plan into your business's operating agreements or bylaws.
Probate can be a perilous journey, fraught with risks like disputes and operational stalls. We lay bare the vulnerabilities your estate could face and why avoiding probate is essential to maintain business continuity. A carefully crafted succession plan—be it a trust or a detailed operating agreement—means your business interests pass smoothly to your chosen successors, without hitch or hiccup. For business owners eager to shield their enterprise from uncertain futures and preserve their vision, we discuss actionable strategies for probate and asset protection. Dive into this rich discussion and if you're keen on furthering your strategy, reach out for a free consultation to fortify your business against the unexpected.
Good morning. My name is Brenton Begley, I'm an attorney and partner with McIntyre Elder Law, and this is the Elder Law Report. I'm joined by Jordan McIntyre, associate with our office. Say hi, jordan, hey guys, hey guys. And today me and Jordan are going to discuss business ownership and why it's important for any business owner to have an estate plan in place. So we've identified three main key points as to why it's helpful to have a business plan. Right, an estate plan is for a business. So point number one let's jump right into it. One of the main concerns that I would have if I were a business owner is you know, if I'm running a business, if I'm doing the day-to-day managing, making big decisions regarding businesses, you know what if something happens to me, if I'm the president, ceo, owner, founder, whatever right, I have to sign the checks, I have to sign the contracts. I have to be the person making, you know, legal, financial decisions for the company. I become sick, jordan. What would I want to have in place to make sure the business still works if I become?
Jordan McIntyre:sick. You want a general, durable power of attorney. That would be crucial so the business could continue on while you're incapacitated.
Brenton Begley:Right, exactly, so you know what you're saying is. Look, you know, if you have a business and you're the one making all the decisions, then if something happens to you, then who can make those decisions for you? Is there something in place where someone else can step in and make important decisions regarding the business? So the simple solution would be assign somebody that's the power of attorney, name them your agent and then they can continue on running the business on your behalf.
Jordan McIntyre:And not just anyone, right, not just anyone. If you don't want to be some guy down the street or your neighbor, you want to make sure that somebody you trust to run your business.
Brenton Begley:Right, exactly. So that means that they need to be inherently trustworthy. Number one, number two they should probably know a little bit about what you do on a daily basis. So yeah, so the you know what happens if someone dies. Could a power of attorney act then?
Jordan McIntyre:No, it only takes effect while you're living.
Brenton Begley:Okay, so the power of attorney is only in effect during the life of the person who made it right? Yes, okay. So that leads us to number two. Number two you know, one of the concerns I would have is, you know, if you have a business owner and they die again, that's the guy or girl who is able to make decisions on behalf of the business, keeping the business running, that sort of thing. You know, a lot of our clients are small business owners and with a small business, you usually don't have like a board of directors, of directors, or if you do, you know there's not all these provisions in place to keep the property or the business running if the main person who owns the business dies. Right, so the concern would be okay if the business has to go through probate, if the owner of the business dies.
Brenton Begley:You know probate can be a very long, difficult, expensive process to go through and you're going through a court process and in this court process you're dealing with all these requirements that you have to buy by because probate has its own set process right. So whether you like it or not, you have to do it, and so it can be very difficult in that process to navigate it in the first place but to continue on with the running the day-to-day, you know, operations of the business can be very, very difficult. So how might we keep a business out of that probate process that can bog down the running of the business and complicate the already difficult task of running a business?
Jordan McIntyre:Yeah, I think you'd want some type of succession plan in place, whether you use a trust or it's specified and some type of operating agreement. I think that you really want to have a succession plan in place to avoid probate and I think that a revocable trust would be the main tool to be able to do that, where you determine who gets the business, who's going to run it, all the day-to-day operations. You really want to not have a business be halted because of probate. Can you imagine your business being held up for six months to two years? That could ruin the business, yeah absolutely, you want an effective succession plan in place.
Brenton Begley:Absolutely. So you know what you're saying is hey, you know you have the opportunity to keep your business from passing through this process where it can be halted for a number of months, a number of years even. And the way to do that is, you know it's multifaceted, it really depends on the business that you have, whatever assets you have, that sort of thing. But one clear way is you can put it in a theory, into a revocable trust, and still run that business. And if you put it in a trust, you're not picking up any ownership of the business, you're not transferring your power over the business. It's your trust. Business goes into your trust and you're going to run it. But it gives you the opportunity to keep that business out of probate. So after you pass away, the business interest goes to whomever you leave.
Jordan McIntyre:Snap the fingers.
Brenton Begley:It's like same thing would happen in an operating agreement that retains a business succession plan. So, division, business succession plan. An operating agreement is bylaws, like corporate bylaws, that control the you know the entity, the LLC or corporation right. So if you have some type of corporate structure, if it's an LLC or corporation, you can put in place a operating agreement or bylaws that contain a provision for what would happen at the end of the business time. And if it's already assigned to those individuals, then no need to have that interest passed. So that leads us to our last point is what other dangers might there be in probate? One of the main dangers of probate is that it's the only opportunity for a creditor to come out, and it's also the opportunity for families to really fight.
Brenton Begley:So what do you think about that, Jordan? If you have a situation where probate is open for six months, two years, would that provide an opportunity for other family members who maybe didn't get what they want, to challenge? You know the estate process.
Jordan McIntyre:Yes, and I think if you have conflicted family members who are aware that they had a dad or a grandfather who ran a very successful business, that's a prime opportunity for family feuds, for people to try to get involved and and claim a part of that and and I think that's dangerous, I think that's going to halt the business affairs and and you don't want individuals who don't have the best interest of the business at heart to become involved in that. You want a specific succession plan. You don't want to leave it to intestate succession. You don't want to leave it to intestate succession. You don't want to leave it to probate you want it to all pass outside of that.
Brenton Begley:So you don't want the family, exactly, I mean. You're absolutely right. It offers a prime opportunity and you know, one thing we're not saying is that anyone can make a. You know, anyone can make a claim against the estate and almost anybody can challenge the estate, challenge the will, challenge the probate administration, as long as they have what's called an interest in the estate, so some type of intermediary interest in the estate, and that could be almost anybody. So basically, what you're doing is allowing an asset of value to go through probate, is to basically give an incentive for agreed family members to come challenge the estate and provide a possible halt to the business a very dangerous for me.
Brenton Begley:You want to avoid it and want to make sure that you know your business doesn't have to put that Again. The three things you need to know as a business owner is that you need to have power of attorney in place to make sure your business can operate while you're living, and also you want to keep the business out of probate. The best way to do that is with a succession plan, and that succession plan if it's a trust operating agreement or another way can keep family members from challenging what your wishes are and keep business operations stable. Jordan, great job, what your wishes are and business operations Jordan great job. And thanks for taking the time to discuss this very important topic. This has been the Elder Law Report. If you have any questions about business succession planning, about probate, how to avoid it and how to protect assets, please call 704-259-7040 or visit our website at celderlaw. com for your free consultation today. All right, see you. See you guys.