How to Create an Estate Plan
Estate planning is one of those things everyone dreads and tries to avoid, but without it, your business could suffer, or even fail, if something were to happen to you unexpectedly. For that reason, it's never too early to start thinking about estate planning. After all, it's likely that as the owner of a small business, the success of your company is the main source of your economic stability, and it would be foolish not to plan for the future of your company. Just as we think about our personal future – what is the next house or car we want to buy, where will I go on my next vacation – so too must entrepreneurs think about the future of their business estate. While an estate plan may develop over several years, and is constantly changing based on the state of your business, fortunately there are steps you can take now to ensure a successful future for you and your company.
How to Create an Estate Plan: Preliminary Preparations
Estate planning is not just crucial in the event of a death, but can be helpful should a partner in a multiple-ownership company want to take his or her exit. Without a plan in place for how various scenarios should be dealt with, the continuity of that business can be compromised. The first step to smart estate planning is to think about succession. At a privately-held company, the succession plan essentially serves as the road map to the owner's estate. The question of succession can take on many forms. Many entrepreneurs hope to see their business continue to exist after they are no longer alive. In that case, you will need to choose a successor, someone you not only trust, but who you can groom to carry out your wishes for the company.
Choosing a successor is a process in itself that should be carefully thought through. If you don't plan to have anyone take over your business when you're gone, the other option is to sell. Whatever your decision is for the fate of your business, you'll want to make that intent clear with your family and any colleagues or shareholders that might potentially be involved in the future of the company.
"The more closely held the business is, the more options you have for estate planning," says Gregg Delman, an independent attorney with experience in the estate planning field as well as financial planning and investment management. "If you are the sole owner and founder, the decision about what to do with the business is all yours. But, if you have partners or co-founders, you will need to have the discussion with them about the future of the business." Typically when a business has multiple partners, a buy/sell agreement will be set up to determine how the shares of the deceased owner will get distributed. In a buy/sell agreement, the remaining partners or shareholders have the right of first refusal for the decedent's shares. After that, the shares can be offered to outsiders, often the decedent's family, or someone else who is interested in retaining ownership of the company.
Mark Gotlieb, an attorney at Miami-based Gotlieb and Associates, which specializes in international estate tax and estate planning, recommends that business owners take out a life insurance policy on themselves. When the life insurance is paid out on a deceased business owner, the remaining partners can use the money to pay the entrepreneur's estate for his or her shares of the company. "In general, entrepreneurs should make sure that they have a life insurance policy in place should anything happen to them," says Gotlieb. Getting a life insurance policy and setting up a buy/sell agreement are both essential parts of the estate planning process. If you are already working with a financial planner, they can help advise you on your options for securring these documents.
Once you have determined your succession plan and set up a life insurance policy, which states your individual worth, the next step is to find out what your company is worth. "It's important to have a business valuation, particularly if you have set up a buy/sell agreement, because that will determine what the liquidation price of the business would be and what your heirs would be owed on the estate," says Delman.
According to Delman, it's best to work with an independent auditor or appraisal firm that is familiar with your industry in order to get the most accurate value on your business. The complexity of this process will vary depending on how long you've been in business as well as the type of industry you are in. Additionally, the value for businesses in certain industries will fluctuate. For example, 2009 was a particularly lucrative year for companies in the manufacturing industry. If you want to get a rough idea of what your business is worth, Inc.'s Valuation Guide features an interactive tool to help you calculate the number on your own, which can be used as a starting off point in your planning.
Dig Deeper: Inc.'s Guide to Business Valuation
How to Create an Estate Plan: Taking Stock of Your Business Assets
Knowing the value of your business will also help facilitate the next step in the process: surveying all the various facets of your business that you depend on to keep your company running. This will include any third-party vendors and merchants that you work with, your company finances and bank accounts, employee insurance policies, software programs and passwords, essentially anything of value when it comes to the continuity of your business.
Delman suggests making a list of all of your business assets, their function, and who has access to them. "Put together a guide that has all the keys to the kingdom," he says. It really helps to have all of this knowledge in one place and accessible. Go over the document with a family member and/or a business partner you trust, and make sure that there aren't any unanswered questions. It is especially important for smaller Web-based companies to go through this exercise, says Delman, because often times the owner will be the only one that has access to important company information. Without a plan for how to pass on that information in the event of an unexpected death or incapacitation, a legal mess could ensue.
Now a days, many Web-based start-ups have their value tied up in digital assets that must also be accounted for during the estate planning process. A whole new specialty of estate planning is cropping up to help entrepreneurs protect these valuable digital assets, which includes domain name registrations, server passwords, online merchant accounts, etc. There are also ways for entrepreneurs to start protecting their digital data without involving an attorney. An online service called Legacy Locker can help you plan for passing on all the digital data that sustains your business. For a $30 yearly fee, or a $300 lifetime membership, you can create an account with Legacy Locker and document all your digital assets. For example, if you own several domain names for your company, you would enter the information for the account, along with the password, and then name a beneficiary to receive those passwords upon your death. Legacy Locker is increasingly being used by estate planners, as an addition to the traditional will. Legacy Locker members must first name a verifier, or someone responsible for confirming their death. The company will not release information to beneficiaries without first receiving a death certificate.
For many Web-based start-ups, a service like Legacy Locker may be sufficient as a preliminary estate plan, especially if the business owner has elected to have his or her business continue running after they are gone. As with any estate-planning document, it's important to remember to keep your account updated frequently. Any time you acquire a new digital asset or a password gets changed, you should go in Legacy Locker and make the change. Legacy Locker also allows members to make their wishes regarding their digital data very clear. For example, if you name your CFO as the beneficiary of the company's bank accounts, you can also leave that person specific instructions for how you want those accounts handled; should they be closed down, or transferred somewhere else? With Legacy Locker, it's up to you how much or how little you want to communicate about how to maintain different aspects of the business.
How to Create an Estate Plan: Find An Attorney
Now that you've taken the time to organize all your business assets, it's time to seek out the expert advice of an attorney who can help you put together your actual estate plan. Just because you own a business doesn't mean you need to hire a major law firm to put together your estate, says Delman. In fact, it's best to look for a smaller, local firm to assist. A website called Avvo.com can help you find lawyers in your area that specialize in estate planning. The site also allows you to read reviews from clients and compare, much like a Yelp for attorneys.
Once you have secured an estate planner, he or she will be able to set up your estate so that it complies with the state regulations for different industries. Businesses with locations in more than one state will also need to be cognizant of the regulations from state to state. "If your business is interstate, you must be aware that you might need expert opinion from attorneys in the various states in which you do business to ensure that all your documents are compliant with those state laws," says Gotlieb.
Most importantly, keep up to date on your estate plan. Most attorneys recommend that you revisit your estate plan every three years, as well as any time you have a substantial life change, such as a marriage, divorce, children, etc. Estate planning is a life-long process and it's a good idea to keep an open dialogue with your family, partners, and estate planner as you go along.
Dig Deeper: Selecting an Attorney
An overview of the estate planning process as well as tips on estate tax and creating wills and trusts.
Online access to estate planning documents, including wills and living wills
A collection of Inc. articles on estate planning and succession.