When developing a succession plan for your
business, you must make many decisions. Should
you sell your business or give it away? Should you
structure your plan to go into effect during your
lifetime or at your death? Should you transfer your
ownership interest to family members, co-owners,
employees, or an outside party? The key is to pick the
best plan for your circumstances and objectives, and
to seek help from financial and legal advisors to carry
out this plan.
Selling your business
Selling your business outright
You can sell your business outright, choosing the
right time to sell — now, at your retirement, at your
death, or anytime in between. The sale proceeds can
be used to maintain your lifestyle, or to pay estate
taxes and other final expenses. As long as the price is
at least equal to the full fair market value of the
business, the sale will not be subject to gift taxes. But,
if the sale occurs before your death, it may result in
capital gains tax.
Transferring your business with a buy-sell
agreement
A buy-sell is a legally binding contract that establishes
when, to whom, and at what price you can sell your
interest in a business. A typical buy-sell allows the
business itself or any co-owners the opportunity to
purchase your interest in the business at a
predetermined price. This can help avoid future
adverse consequences, such as disruption of
operations, entity dissolution, or business liquidation
that might result in the event of your sudden
incapacity or death. A buy-sell can also minimize the
possibility that the business will fall into the hands of
outsiders.
The ability to fix the purchase price as the taxable
value of your business interest makes a buy-sell
agreement especially useful in estate planning.
Agreeing to a purchase price can minimize the
possibility of unfair treatment to your heirs. And, if your death is the triggering event, the IRS’
acceptance of this price as the taxable value can help
minimize estate taxes.
Additionally, because funding for a buy-sell is typically
arranged when the buy-sell is executed, you’re able to
ensure that funds will be available when needed,
providing your estate with liquidity that may be
needed for expenses and taxes.
Private annuity
With a private annuity, you transfer your ownership
interest in the business to family members or another
party (the buyer). The buyer in turn makes a promise
to make periodic payments to you for the rest of your
life (a single life annuity) or for your life and the life of
a second person (a joint and survivor annuity). Again,
because a private annuity is a sale and not a gift, it
allows you to remove assets from your estate without
incurring gift or estate taxes.
Until 2006, exchanging property for an unsecured
private annuity allowed you to spread out any gain
realized, deferring capital gains tax. IRS regulations
proposed that year have effectively eliminated this
benefit for most exchanges, however. If you’re
considering a private annuity, be sure to talk to a tax
professional.
Self-canceling installment note
A self-canceling installment note (SCIN) allows you to
transfer your interest in the business to a buyer in
exchange for a promissory note. The buyer must
make a series of payments to you under that note,
and a provision in the note states that at your death,
the remaining payments will be canceled. Like private
annuities, SCINs provide for a lifetime income stream
and they avoid gift and estate taxes. But unlike
private annuities, SCINs give you a security interest in
the transferred business.
Gifting your business
If you’re like many business owners, you’d prefer to
have your children inherit the result of all your years
of hard work and success. Of course, you can
bequeath your business in your will, but transferring
your business during your lifetime has many
additional personal and tax benefits. By gifting the
business over time, you can hand over the reins
gradually as your offspring become better able to
control and manage the business on their own, and
you can minimize gift and estate taxes.
Gifting your business interests can minimize gift and
estate taxes because:
• It transfers the value of any future appreciation in
the business out of your estate to your heirs. This
can be especially valuable if business growth is
expected.
• Gifts of $15,000 (in 2019 and 2020) per recipient
are tax free under the annual gift tax exclusion.
Aggregate gifts up to $11,580,000 (in 2020,
$11,400,000 in 2020) are tax free under your
lifetime exclusion.
• Partial interest gifts, as with GRATs, GRUTs, and
FLPs, may be valued at a discount for lack of
marketability or restrictions on transferability.
Gifting your business using trusts
You can make gifts outright or use a trust. You can
even structure a trust so that you keep control of the
business for as long as you want. You can establish a
revocable trust, which will bypass probate and allow
you to change your mind and end the trust, or an
irrevocable trust, such as a grantor retained annuity
trust (GRAT) or a grantor retained unitrust (GRUT)
that can provide you with income for a specified
period of time and move your business out of your
estate at a discount.
Gifting your business using a family
limited partnership
You can transfer your business interest using another
entity, such as a family limited partnership (FLP). An
FLP is a limited partnership formed to manage and
control a family business. You (and your spouse) can
be the general partners, retaining control of the
business itself and receiving income from the
business, while your children can be limited partners.
By transferring the business to an FLP, you may be
able to use valuation discounts and substantially
reduce the value of the business for tax purposes by
making annual gifts to the limited partners.
The opinions voiced in this material are for general information only and are not intended to provide specific advice or recommendations for any
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referenced is historical and is no guarantee of future results. All indices are unmanaged and cannot be invested into directly.
The information provided is not intended to be a substitute for specific individualized tax planning or legal advice. We suggest that you consult
with a qualified tax or legal advisor.
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