That may be an idealistic portrayal, but there is some truth to it. It is no longer unusual for families to engage in estate litigation, according to The Northside Sun’s article “Do You Have a Will or a Trust? Why?” Many families who have estate plans incorporate trusts to ensure that their directions are followed.
If you’re like most people, you opened that IRA many years ago. You may not have any idea who you named as your beneficiary. If you have a copy in your files, there’s something you need to do, says The Mercury News in the article “No beneficiary designation for an IRA? Here’s what can happen.” It’s time to dig into your records and take a look.
Everyone needs to have an annual checkup, taking stock of their health with their primary physician and making sure that everyone is on the same page when it comes to instructions for health care and an advanced healthcare directive, also known as a living will. When people sign their last will and testament, everyone breathes a big sigh, says The Huntsville Item’s article “Make sure you talk to your doctor and family.” But that’s not the end of estate planning.
Here’s a scenario that happens often. A man receives an inheritance, and he decides to use it to purchase the family home outright. His wife has signed a quitclaim deed to put the property into her husband’s trust. The understanding was that if the husband died before the wife, she would be permitted to stay in the home until her own death. The problem, says The Washington Post in this recent article “Make sure you and your spouse are on same page on who will inherit your home,” is that the husband never signed the living trust.
Do you have certain key employees who help make your family business a success? Keeping those employees may be essential to a successful transition of ownership and management to your children or another new owner when you retire or pass away. A “stay bonus” (also called a retention bonus) is a strategy that is frequently used by large companies during mergers and acquisitions but can also be used to facilitate a smooth transfer of small family businesses to the next generation or to new owners.
What Is a Stay Bonus Agreement?
A stay bonus agreement is a contract between the business and a key employee providing that the employee will not leave the company for a specified period of time after a particular triggering event, for example, the death of the business owner. At the end of that period, the key employee will receive a bonus. The amount of the stay bonus could increase over time: The longer the employee stays, the larger the bonus will be.
Why Is a Stay Bonus Necessary?
According to the 2019 PricewaterhouseCoopers Family Business Survey, 62% of business owners plan to pass the business on to the next generation. However, only about 18% have a formal, documented plan in place to achieve this transition. This is likely one of the main reasons why only 30% of family businesses survive the transition to the second generation.
A stay bonus can be a vital part of a business’s succession plan because retaining key employees may be a determining factor in whether the business succeeds or fails during and after a transition. The expertise and experience of essential personnel are especially necessary if the transition occurs as a result of the sudden death of a business owner, which could cause a transfer to occur earlier than expected.
A stay bonus can help:
- Retain talented people who are essential to the successful day-to-day operations of the business. If you have personnel, like managers or salespeople, who add a lot of value to your business, offering them a stay bonus can provide them with enough financial security to persuade them to stay during and after the transition, particularly if they are concerned that their future with the company may be in jeopardy.
- Preserve relationships with customers or clients. If your salespeople have long-term relationships with your customers, they could take those customers with them if they leave. Similarly, the loss of other important employees possessing extensive knowledge about your business and its operations could leave a substantial vacuum that could endanger the future of the company. This could be especially damaging if they go to work for a competitor.
- Prevent the interruption of critical functions. Retaining key employees will provide continuity, which is essential for avoiding disruption in the services offered to customers and for ensuring adequate cash flow for the business.
How Are Stay Bonuses Funded?
There are a variety of strategies for funding stay bonuses. Often, business owners plan to provide funding for stay bonuses by purchasing a life insurance policy with the business as the beneficiary. Then, upon the owner’s death, the death benefits from the life insurance policy can be used to fund the stay bonuses for key employees. Another strategy is to purchase life insurance on the key employees whose cash value could be used to pay for the stay bonuses.
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If you want your business to survive after you leave—whether your departure is because of retirement, illness, or death—it is important to develop a plan to retain your key employees during the transition period. A stay bonus is an incentive that could persuade them to remain with your company, increasing the likelihood of its continued success. We can help you develop a business succession plan, including stay bonus agreements for your essential personnel, tailored to your particular circumstances. Please contact us at (228) 460-5243 or email us at firstname.lastname@example.org to find our how your business planning attorney can help you.
Legal disclaimer: The information in this article is provided for information purposes only and should not be construed as legal advice. Your should not act or refrain from acting on the basis of any content included in this article or on our website (www.perklwagroup.com) without seeking legal or professional advice.
It’s an emotionally charged decision. Parents who sit down with an estate planning attorney would much rather talk about their grandchildren and how much they are looking forward to retirement.
However, then the discussion turns to how they want to distribute their assets, as reported in the article “Why is it called a ‘No Contest’ clause?” from The Daily Sentinel, and a problem is revealed.
The parents share that there is a family member, an adult child, who has never been part of the family. Usually they have had a troubled past, pushed others in the family out of their lives and it’s heartbreaking for all concerned.
The discussion then moves to determining how to handle that individual with respect to their estate plan. “Do you want her to be part of your estate plan?” is the least judgmental question the attorney can ask. In many cases, the parents say yes and say they’ll keep trying to foster some kind of relationship, no matter how limited. In other cases, the answer is no.
In both cases, however, the concern is that the difficult child will fight with their siblings and take the battle to court. That’s one of the reasons to include a no contest clause.
As long as estate planning documents are prepared correctly and signed, they will survive a legal contest. However, putting in a no contest clause creates another barrier to an estate battle.
The no contest clause is intended to act as a strong deterrent for those individuals who believe they are entitled to more of the estate. It makes it clear that any challenges will result in a smaller portion of the estate, and possibly no inheritance at all, depending upon how it is written.
Both parents need to have a no contest provision included in their wills. The message is clear and consistent: these are the estate plans that we decided to create. Don’t try to change them.
For families with litigious family members or spouses who married into the family and feel that they are not being treated fairly, a no contest clause makes sense to protect the wishes of the parents.
Speak with an experienced estate planning attorney about how a no contest provision might work in your situation. If your family doesn’t need such a clause, count your blessings!
Reference: The Daily Sentinel (Aug. 10, 2019) “Why is it called a ‘No Contest’ clause?”
Parents talk with their children during various stages of their lives about the challenges ahead. The tough talks about sex, drugs, drinking, driving, bullying and mental health are understood as a necessary part of good parenting. However, why, asks The New York Times, don’t they talk to their children about money? The answers are presented in the article “4 Reasons Parents Don’t Discuss Money (and Why They Should).”
Two-thirds of Americans with at least $3 million in investable assets have not spoken with their children about their wealth—and say they never will. This was the surprise conclusion from a Merrill Private Wealth Management study of 650 families. Some said they didn’t because they figured the kids had already figured it out. However, 67% of those respondents had made gifts in a trust or set aside money in their children’s names to pay for school, buy a home or help them out with income. Ten percent steadfastly said they won’t talk with their kids about money, saying it’s no one’s business.
Why are parents so reluctant to have the “money talk” with their kids?
The Motivation Factor. Parents are concerned that knowing about an inheritance will destroy a child’s motivation. They think if they don’t say anything, the kids won’t know about the inheritance. However, children are smarter than that. They know how to find out the value of their homes, the cars their parents drive and how much vacations cost. For prominent parents, there may be all sorts of information online about their assets. By second grade, children who go to their friend’s houses have a pretty accurate read on wealth levels. Education about money should start when they are in nursery school, not when they are 24 and asking for a new car.
Not Knowing What to Say. Parents have certain markers for certain conversations with their children. When they are able to get a learner’s permit, we talk with them about driving, drinking and safety. When it is clear that they are becoming teenagers, we talk with them about sex, personal safety and responsibility. However, there’s no set time to have a conversation about money, and few guidelines. Do you start with a conversation about family values and the responsibility the wealthy have towards the community? Should you explain how the household runs and where the money comes from? Or, should they get a better understanding of what it took to amass the family’s wealth, and what strategies are in place to protect and grow that money?
You may not need to educate an 8-year-old on buying stocks, but they should certainly understand the value of their allowance. On the other hand, an 18-year-old is old enough to understand where the money came from and what the family’s values and expectations are.
No One Had the Talk with You. One of the survey respondents shared a very personal story: she had started talking with her children about the family’s money when they were young, but she herself did not know how much money the family had. She found out only much later when the children were older, when she learned that a share of her husband’s business had skyrocketed in value, as had several of his other businesses. Since then, the family has held annual meetings with the children to talk about their feelings about money and how it can be used to help and hurt.
Money is New to Your Family. Families that come from multiple generations of wealth have succeeded in passing wealth to the next generation, because of the conversations that have gone on for years. Those who talk early and often about wealth with their children do far better than those who keep silent. The families follow this key three step process: educate the children about finances and wealth, communicate the family’s values and hire very good advisors.
Reference: The New York Times (Aug. 2, 2019) “4 Reasons Parents Don’t Discuss Money (and Why They Should).”
You have spent years building your small business, but have you taken time to consider what will happen to it when you retire, become disabled, or pass away? Although it is often hard to fathom an event that may not occur for many years, it is important to put plans in place in advance. The failure to do so could result in the eventual loss of the business. There are several factors you should keep in mind in making plans for the future of your small business.
- Identify a successor(s). Many small business owners plan to transfer their business to a child or children, or sometimes, grandchildren eventually. If you have more than one child, it is important to consider which of them has an interest in stepping into your shoes, as well as whether that child has the skills needed to do so successfully. It is important not to assume that just because one child is the oldest, control of the business will go to that child. The continued success of the company requires that the member(s) of the next generation who will take over the reins have the business acumen and commitment needed to run it.
- Consider having the next generation participate in the business before transferring ownership and management duties. For the continued success of the business, your successor(s) should be trained to run the business before your departure. This training can be accomplished over several years, after which you can start the process of transferring management and ownership of the business. Many business owners transfer management control of the business to the next generation first, while staying involved to a limited extent as an advisor, and then, shifting ownership.
- Decide whether to transfer the business by a gift or a sale. Although each family must make its own decision about how the transfer should occur, many business succession professionals recommend that the next generation have an economic stake in the success of the business by purchasing at least part of their ownership interest. If your successor does not have the funds to pay a lump sum for the business, the sale can occur as a buyout that happens over the next several years. Alternatively, the next generation can work for the company at a reduced salary to earn their ownership interest in the business. There are several ways the transfer can take place. As business law attorneys, we can help you decide which option is the best one for your particular circumstances.
- If more than one child is well-suited to run the business, put a business structure in place that enable the smooth transition to multiple successors with minimal conflict. This transition can be accomplished by incorporating provisions facilitating a smooth transfer into your partnership agreement or LLC operating agreement, for example. If one or more children are not interested in participating in the ownership of the business, consider providing an inheritance for them from other assets or making them the beneficiary of a life insurance policy.
- Think about your own needs for your retirement. If you will need a continuous stream of income, consider continuing to play a limited ongoing role in the company for which you receive a salary. Another option is to require the next generation to purchase the business, providing funds for your retirement needs in that way.
- Plan with an eye toward minimizing your tax liability. For example, one option is to transfer the business gradually by making gifts of shares in the business each year that are equivalent to the amount of the annual exclusion (currently, $15,000). We can help you accomplish the transfer of your business in a way that minimizes your income, gift, and estate tax liability.
You have invested a lot in making your business a success, and it is hard to think about relinquishing ownership or control of it. Nevertheless, planning is critical in creating a lasting legacy for your family. We can help you put a plan in place that helps you successfully pass your business on to the next generation and ensures that you have a financially secure retirement. Call us (228) 460-5243 or email us at email@example.com to find our how your business planning attorney can help you.
Legal disclaimer: The information in this article is provided for information purposes only and should not be construed as legal advice. Your should not act or refrain from acting on the basis of any content included in this article or on our website (www.perklawgroup.com) without seeking legal or professional advice.
I had a birthday this week. So for this edition of the Friday Tunes we are going to spin songs from the year I was born. Enjoy these hits from 1980.