Why Your Choice of Entity Matters for Business Succession & Tax Purposes

When you start your business, it’s easy to get overwhelmed with all the decisions you have to make, but this is no excuse for overlooking the power of choosing the right entity. When it comes time to sell the business, what you chose as your entity can make a big difference. Read on to learn more about how these choices will influence you. 

  • Sole proprietor: The classification of gain or loss is important here because it depends on the nature of the assets. You may also need to factor in whether you’re passing on the business to family members or someone else and make sure there’s a training plan in place.
  • Corporate shareholders possess a capital asset- stock, meaning that when it’s sold, there’s a capital gain.
  • Partnerships and LLCs will typically report ordinary income when the business is sold in addition to capital gain

Planning for a future that seems far off is not always easy, but a business succession planning lawyer can help. There are several steps you should take to protect yourself:

  • Review your buy-sell agreement and any other business agreements
  • Consider the cash value of the business and how this might influence a sale
  • Plan for a clear transfer of ownership if you have a family business

Having these items documented well in advance and considering both the succession and tax implications for your business is critically important. Don’t make the mistake of overlooking these.


Entrepreneur Estate Planning Tips

Many entrepreneurs have one thing in common: they tend to like to do everything by themselves, at least when the company is started. Over time, however, what tends to separate the extremely successful from the barely surviving is being able to tap into other resources and surrounding the entrepreneurial journey with a team of professional advisors who help him or her implement short and long-term strategy. 

Entrepreneurs have unique estate planning needs. In addition to thinking about the future of their own assets, it’s equally important to consider the future of the business, too. Finding the right estate planning attorney can have a big impact on an entrepreneur’s ability to plan. There are five primary tools that most entrepreneurs should consider when putting together their estate and their long-term business planning. Meeting with the right lawyer can help to identify the best opportunities to move forward with estate planning while keeping the future of the company in mind as well.

The top six tools that can help an entrepreneur include:

  • A trust
  • A buy-sell agreement
  • A trust
  • Power of attorney
  • A will
  • A succession plan

In many cases, the estate planning for an entrepreneur may be infused with both individual and business plans. This is why it’s so crucial to identify an attorney who understands that and works to create a comprehensive and personalized plan for the business owner. Having to suddenly exit the business due to incapacity, for example, can raise a lot of questions for the entrepreneur about who is empowered to make medical or financial decisions for the business owner but also how the company will be handled, whether it’s a short or long-term absence.

Entrepreneurs frequently pour their heart and soul into founding and growing a company. Determining the most appropriate way to protect it is equally important. Make sure you identify an estate planning lawyer with experience helping individuals as well as business owners with estate planning and succession planning needs. The right lawyer can give you a lot of peace of mind about the future.

Don’t Forget the Founder’s Role in Business Succession Planning

Without a proper business succession plan, the very future of the company is in question. The entire business could even tank due to a lack of a proper succession plan. Without some guiding documents in place, new owners and family members may be stepping in to a very complex situation and may end up in conflict with one another. It’s important to meet with an attorney who has extensive experience in the realm of business succession planning to start with to ensure a comprehensive approach towards protecting individuals and the interests of the business. 

Although to some extent certainty and clarity should be incorporated into your estate plan, the owner might assume risks in order to help grow the business. The owner may even have a concept in mind for when he or she will elect to leave the business. However, there are so many different events that can disrupt this plan. If you have not planned for some adaptability in the business succession plan, all the hard work can go up in smoke.

One key aspect to remember in any business succession plan is the transition of the owner. How will he or she maintain an operational role or compensation during the succession process? If the clients intend to remain with the business because of their connection to the owner, this transition period could lead to a lack of trust. Any buyer will want to be able to minimize the potential impact of fleeing or unhappy clients. One way to address this is by using an earn-out structure for the owner’s exit.

If you have more questions about the business succession planning process, reach out to an experienced lawyer today.





What Business Owners Should Consider for Estate Planning

After putting in all the hard work to get your business off the ground, it can seem like a good time to take a break from planning. After all, who wants to think about the end when you’ve just made it to the beginning? The ones most likely to skip out on estate and business succession planning are young business owners who consider themselves to have few assets.

Although it might seem counterintuitive, taking the steps to conduct estate and business succession planning early on is strongly recommended. Business owners forget that assets like retirement plans and group life insurance can be classified as part of your estate. This means that if someone dies without a will, state laws determine where those assets will go rather than the former owner. This can lead to unintended outcomes, like a young business owner’s parents, receiving all the assets. 

Bear in mind that death is not the only reason someone might exit a business. It’s essential to partner with an experienced attorney to discuss what happens if a partner or a shareholder exits the business due to disability, for example, all the same questions will be raised about transferring management or other responsibilities. Without proper planning, there can also be unintended tax consequences, too. Having a clear plan to outline what should happen when any partner or essential stakeholder needs to step out of the business suddenly.

Without a proper plan, all of the hard work that went into establishing and growing your business can come to a screeching halt. This can be extremely problematic and can even impact the company’s ability to get things organized quickly.

Ready to get a plan in place for your company to minimize transition headaches? Contact an experienced New Jersey business succession lawyer today to learn more.



Do You Have an Authentic Business Succession Plan?

In order to appropriately engage talent and retain quality employees, your succession plan must be both transparent and authentic. 


Many things about the modern employment contract have shifted in recent years but employee commitment is usually still rewarded with development opportunities that will be beneficial for that employee’s career mobility down the road. For the most ambitious of the employees, the highest reward is usually the opportunity to have a position at the top of the company. Succession management is usually the biggest tool that organizations use in order to vet candidates who may be capable of taking on these top positions. This usually happens with the practice of promoting from within.


This can help to attract strong talent to your employee pool to begin with because it gives a clear prescription for development. In order to advance to higher positions, employees know that they must show personal growth, deliver results and master certain skills. While succession plans may be present in your current business, the degree to which this plan is actually followed can vary tremendously. Recent studies have found that even those with a well-developed succession plan often lack the implementation skills to carry out what is stipulated.

It is important to think of your succession plan for the business as a living document. The guidelines and suggestions within it must be followed and reviewed on a regular basis in order to make the most out of the plan.

Business Succession Planning Can Support Your Employees, Too

There are many different reasons to approach the subject of business succession planning. It gives you greater peace of mind and clarity about the future and can make things easier for family members who may need to become involved after you depart the business suddenly. Unfortunately, however, business succession planning is essential for your employees as well.

If staff members do not feel as though they are being valued in the company or being prepared to take on a bigger role when the transition time comes, they may begin to look for other opportunities. This can be a critical sign that business succession planning is necessary. A continuity plan is valuable for clients but also for employee motivation and retention. Effective business succession planning is about a multi-pronged approach.

Hiring loyal and talented employees from the outset can be essential, but an entrepreneur is responsible for treating these employees right and making them feel a valued member of the team. They should also be included in training and incentive programs that help to support their growth to higher and higher roles. If an employee feels as though there is no growth opportunity, then they may consider searching out other employment options. This can be devastating when a business owner who must suddenly depart the business has a choice only of inexperienced employees currently on the payroll because older and more experienced employees have chosen to depart due to lack of appreciation. If you are ready to initiate the succession planning process, reach out to a New Jersey business succession planning attorney today.


Succession Planning and Trusts in Estate Can Help a Business Survive After the Loss of a Loved One

You might not initially think that you have much in common with the Prince estate, but as a business owner you have more than you likely realize. Prince left behind no will or no plan, meaning that he created a lot of legal questions for his multi-million-dollar legacy and empire. Putting together a business succession plan is essential, if you intend to protect your business interests after you pass away.


In some families, for example, only one child wishes to be involved in the future business. With no estate plan, all of the children may automatically receive an interest in the business that they are not necessarily interested in. With the trust, however, the individual who has the business has the opportunity to funnel this business to the interested child. This is usually the child who has already working in the business. That inheritance can be offset to other children with other assets. Cash and a house may be some of the most common assets, but this allows the business to pass on to an invested child who wants to remain involved for many years to come.

The probate process can be lengthy and the sudden departure of a key individual in a business can present many unique legal challenges and problems. It can be difficult to identify a successor if this process has not already been done with the business succession plan. Make things easier for your business and your loved ones by consulting with a business succession planning attorney as soon as possible.

Checklist of Questions That Every Business Owner Needs to Ask

There are several different questions that you need to ask in order to ensure that you have protected yourself against risks and engaged in proper planning. shutterstock_189579146

Do All Owners of the Business Have an Updated Buy-Sell Agreement?

A buy-sell agreement determines what happens to ownership interests and the business if they need to be transferred due to a disability, termination of employment or owner’s death.

Have You Reviewed Your Legal Structure at Least On an Annual Basis?

Whether you’ve been in business for awhile or whether you’re new to the game,] make sure that your business structure is always set up in the most advantageous manner.

Has a Succession Plan Been Outlined?

You need to ensure that the ownership and authority have been outlined when a business owner transitions and it is passed on to someone else.

Is There an Emergency Management Transition Plan/Procedure in Place?

Make sure you have a plan in the event that a key individual suddenly becomes incapacitated, unavailable or deceased.

Does Your Business Have Regular Shareholder’s Meetings and Annual Directors Meeting?

You should always schedule these in order to update the stock book and corporate minute book.

Do You Have Updated Contract Forms that Have the Clear Business Terms and Conditions

These forms should have clear terms and conditions aligned with protecting your business.

Have You Reviewed Any Potential Liabilities, Litigation Risks and Obligations?

The business should have a plan to guard against exposure, but you should also make sure that individual owners also have their own personal asset protection plans.

Do You Have an Employee Handbook?

Your employee handbook should include key terms about disabled employee rights, family medical leave, law changes involving discrimination, social media and sexual harassment.

When Hiring Employees, Do You Have Them Sign Noncompete Agreements, Non-Disclosure Agreements & Confidentiality Agreements?

This can be an excellent way to protect the business you have worked so hard to build and to lay ground rules from the outset of working with a new employee.

Is a Business Executive Compensation Plan in Place?

One of the best ways to reward loyalty is to ensure that you have rewarded retaining key employees and enhancing their commitment to your company.

Are Business Owners Thinking About Growth?

Are you thinking about acquiring other companies and growing your company in this manner?

Are you Thinking About Selling the Business to Someone Else?

If you are thinking about ultimately selling the business, or if you have received increase from someone interested in purchasing the business, there are many different things you need to prepare for.

Have Any Owners of the Business Expressed a Desire to Leave or Separate?

This is one more reason why you need a business succession plan in place.

Do Business Owners Also Have Ownership in real Estate Where the Business is Located?

Make sure that you have reviewed the recent developments and changes in the law and ensure that the legal structure of real estate ownership has been analyzed recently.

Have You Developed an Asset Protection Plan to Minimize Your Exposure to Liabilities?   

Make sure your plan covers all potential liability exposure. You can discuss this further with your New Jersey asset protection protection planning attorney.


Planning for Business Succession and What You Need to Know About Sales

Any number of major companies can illustrate the importance of business succession planning. Succession planning issues always make for interesting news subjects especially when they involved major companies like Disney, General Electric or Berkshire Hathaway. Although Disney had what they thought was a clear plan in place to replace their CEO, the individual intended to replace Bob Iger announced suddenly that he was leaving the company as well. NJ business succession planning

It looks like from the perspective of analysts that Disney may need to extend the contract with the current CEO while they look for an appropriate successor. and of course, it comes as no shock to anyone that the company’s stock value took a drop this last week. Succession planning is just as important for smaller and family owned companies as it is for these major companies. Whether you plan to transfer your business to a family member or an outsider, it will more than likely involve some kind of formal transaction. Research shows that 34% of business owner respondents, in fact, have received a formal offer for their business but 88% of these decided not to sell saying that it simply wasn’t the right time.

Among business owners who had not yet received an offer, according to an RSM Middle Market Leadership Council survey, 22% believed that they were likely to sell in the future, raising the question about how they would transfer ownership if they did follow on this track. There are several different questions you need to think of when conducting your business succession planning. These include:

  • Will you, the owner, have sufficient income or assets outside the business entity if you pass on to a family member?
  • Will you be able to achieve your necessary retirement and estate planning needs if you sell to an independent buyer?
  • What role would you like to play in the business after it is sold, if any?
  • What after-tax proceeds do you need to count on to meet your charitable estate planning, lifestyle, and other goals?

Meeting with a New Jersey estate planning attorney can help you accomplish these goals and more.   Contact us today to learn how our attorneys can help. Set up your meeting by emailing info@lawesq.net.


How Business Succession Planning Can Help with Smooth Transitions

It’s imperative to think carefully about replacing any high-level employee in your business, but this is especially important as it relates to a CEO. There are major risks associated with not having a long-term strategic plan for replacing someone at the head of the company. Succession planning should be discussed early although many companies fail to accomplish this goal until they have learned the value of doing so by speaking with a business succession attorney or until the company has gone through a rough transition period.

Take a lesson from the spice company, McCormick. They use many of the same tools that other companies do, including job rotations, a long-term strategic view and regular assessments for all senior executives. This is largely due to the fact that the sudden death of a prior CEO and health issues that forced the current CEO’s departure from the company.

Planning for succession is as much about deciding the future direction of the company as it is figuring out what plans and people you have in place to direct that transition with minimal negative impact on the company. With training and advance preparation, the next generation of leadership in the company should rise to the occasion.business idea

According to a recent study conducted by the Wall Street Journal, 55% of companies felt that they were only somewhat or not at all prepared for the departure of a CEO as a result of an emergency. All too often, boards of directors don’t consider replacing a CEO until a year or two before the individual currently in the role is planning to leave, but at that point in time it’s too late to develop someone else to take over the role. It is imperative to plan ahead for a smooth transition in order to allow the best possible chance of success.

Ready to talk succession planning? Contact our office at info@lawesq.net to learn more about your options and suggested next steps.


Boosting Your Company’s Value with Business Succession Planning

One of the most common myths about business succession planning is that all you need is a buy-sell agreement. There’s no doubt that a buy-sell agreement may be an important component of your overall strategy, but it’s unlikely to be the only piece.

There are plenty of reasons to have a business succession plan in place as soon as possible, including:

  • Avoiding lack of continuity to impact clients
  • Having a clear vision about how the company can be sold or divided in the event of a sudden crisis
  • Protecting an owner’s equity
  • Preparing the next generation of leaders to step up to the plate

Your succession plan should be comprehensive and it should be a living plan. It’s not enough to have a basic idea about how things should happen in the event that an owner unexpectedly or even willingly departs the company. The best-laid business succession plans also have a systematic expectation regarding how ownership will be transferred. This includes a backup plan if the initial strategy is, for some reason, unachievable. business succession planning NJ


One benefit of succession planning that many owners don’t fully realize is that it can be used to lower risk to allow growth, ultimately boosting the company’s value. One key issue that can be difficult to calculate for the valuation of any business is known as the company’s “goodwill.” The extent to which this can be transferred to future owners will significantly impact the value of the company. If you approach succession planning with the right frame of mind, this should include transferring top clients to the succession team so that client confidence can be maintained.


In order to get the most out of succession planning, it should be completed as soon as possible and be something that leaders return to over time if circumstances change. To get started today, contact an experienced New Jersey business succession planning attorney.

What Mark Zuckerberg Can Teach About Business Succession Planning

The business succession planning strategy of Mark Zuckerberg could have important ramifications for individuals who are approaching retirement and thinking about whether or not it is time to move on. business succession planning NJ

For example, Sumner Redstone, a multi-billionaire, is currently locked in an argument with trustees and his family over the control of his companies, Viacom and CBS. One of the key takeaways that Sumner and other individuals approaching retirement without a business succession plan can learn from Mark Zuckerberg is that there are key generational differences in the way that entrepreneurs build their companies.

In all situations, it’s in your best interests to avoid winding up in Redstone’s situation. You might assume that exiting the business is so far in the future that you don’t need to worry about it, but this is a mistake. In fact, there are many reasons that you may wish to exit or sell the business outside of death of an owner, and planning ahead for these can make for a smoother transition when the time comes.

A new survey from U.S. Trust found that younger business owners are planning to exit their companies and raising money in ways that are quite different from older generations even though many of their key concerns about eliminating or moving on from their role in the business are the same across generations. The younger generation deals with succession planning in very different ways.

Although two-thirds of current business owners do not have a formal exit strategy, and for the baby boomer population only 52% of younger business owners do not have an exit strategy in place. To learn more about how a business succession plan can help you accomplish goals for your company as well as determine when it time to move on in the future, consult with a New Jersey business succession planning attorney today.


Take This Business Succession Planning Quiz to Learn Whether or Not You Are Prepared for the Future

business succession planning NJUnfortunately, far too many individuals avoid the process of business succession planning, figuring that they will deal with it at some point in the future. Unfortunately, as many business owners can attest, there are numerous reasons why someone may need to depart a business suddenly. These include disability, death, retirement and other issues. Without having an appropriate business succession plan in place, the business may continue to struggle significantly.

Answer these questions below to learn whether or not your company is appropriately prepared for business succession planning. If you find yourself answering no to the majority of these questions, realize that you are not alone and that you could benefit from a meeting with a business succession planning attorney. Getting things organized now and initiating these processes can help your business significantly and give you a great deal of peace of mind about the future.

  • Do you already have an identified successor for all of the key roles in your business?
  • Have you defined the vision and the personal goals you have associated with transferring management and ownership of the company?
  • Are there any family issues that could impede potential ownership and leadership decisions?
  • Does your business succession plan also take into account key estate planning issues such as minimizing estate taxes?
  • Do you have appropriate liquidity in the business in order to avoid a forced sale?
  • Is there a contingency plan in case an existing business owner becomes unable to work sooner than anticipated?
  • Is a buy-sell agreement already developed for transferring assets?
  • Have you figured out yet whether or not you or any other individual is depending on the sale of the business to meet cash flow needs in retirement?
  • Have you already had a business valuation conducted and viewed your company in the same way that a potential buyer would?

If you have not engaged in this process yet, it is not too late. Consult with a business succession planning attorney to learn more.


Why Do You Need to Think About Small Business Succession Planning Now?

Did you know that just over half of all small business owners are aged 50 or above? That’s according to statistics from the U.S. Small Business Administration. How that breaks down to actual numbers is that 28 million individuals who own a small business are at the point of considering transitioning out of their business.business succession planning NJ

Despite the fact that many small business owners are over age 50, a vast majority of them have not completed the business succession planning process. A whopping 78% of small business owners plan to sell their businesses in order to fund their retirements, but less than one-third of them have an actual written succession plan which could be a recipe for disaster. Individuals who are counting on the sale of the business to fund their retirement completely could find themselves shocked if they have not planned ahead properly. Individuals may be forced to settle the business before it has been properly evaluated by somebody else and it could mean selling the business for less than what it is worth. These are just a handful of the reasons why you need to consider a business succession plan now.

One of the biggest reasons to consider business succession planning now is that you should not count on any traditional plans unless you’ve had the opportunity to talk them over with your loved ones. For example, if you believe that your children are going to take over the business, you should never assume this until you’ve had the opportunity to speak with him directly.

A vast majority of small business owners plan to pass the business down through the family but if there is no one interested or talented enough to take on these key management roles, you could find yourself struggling to find an ideal partner when it is time to plan the transition the business quickly. You should have these conversations early in order to tap ideal individuals well in advance since you may need to develop some of the talent within the company, knowing in advance how you plan to pass it on can help you implement training opportunities now. There has never been a better time than now for business succession planning, both for protecting your family and your company’s future.

3 Big Myths About Succession Planning

We’ve already impressed the general importance of business succession planning in numerous blogs, but many people never get to the point of actually accomplishing it because they are falling for one of these three common myths. shutterstock_228635452

Myth #1: A Successor is Automatically Ready When I Am

Without having this conversation with a successor, you cannot know for sure whether or not a successor is ready to take things over. Careful planning and an initial conversation are both important.

Myth #2: It’s Easier if We Just Plan to Sell

Selling your business is certainly one option for business succession planning, but it should not be the only one you consider. You should never make a decision about the future of your business without first discussing it with key stakeholders and your business succession attorney.

Myth #3: We Have Plenty of Time

This is probably the most damaging myth out there, but it’s also the most common one. Far too many businesses fall into the trap of assuming they’ve got plenty of time in which to finalize their succession plan. The reality is that sudden exits can happen at any time and that your planning should be done long before an incident like this arises.

To learn more about how to approach or update your business succession plan, contact an attorney today.

How Can a Cross-Purchase Agreement Benefit Your Business Succession Plan?

There are many different methods for supporting your business succession plan, or the plan in which you discuss how the ownership of the business will be transferred or methods for determining the business’s value and individuals who will take it over.shutterstock_107855351

A cross-purchase agreement is one such option. These agreements are structured so that every partner purchases and owns a policy on the other partners. This means that every single partner is an owner and a beneficiary on the same policy, with the other partner being the insured individual. When one partner passes away, the face value of each policy on the deceased partner is thus paid out to the remaining partners.

Those individuals then use the proceeds from the policy to purchase the deceased partner’s share of the business at a previously agreed on price. This is just one method for complimenting your business succession plan and it is one that should only be discussed with an experienced New Jersey business succession planning attorney. These vehicles can accomplish your goals but they can be relatively complex and easily misunderstood if you do not work with the appropriate attorney.



Who Needs to Be Involved in the Business Succession Planning Process?

Aside from you and any key stakeholders with your company, you may also need to engage with a financial advisor, a business succession expert and a business succession planning attorney. This is because there are many different questions that can arise during the process of determining the right course for your business. shutterstock_290148488

The succession planning team should almost always include the owner’s family, the owner’s advisors, and leadership and management team. This is so that you can have questions answered quickly and determine what individuals will play specific roles in the process of transitioning the business in the future. Do not hesitate to reach out to an experienced business succession planning attorney as soon as you believe that you are prepared to complete this process.

There are numerous questions that need to be answered before you consider putting together your business succession plan and you should also conduct a review of any existing documents such as a buy-selll agreement. These documents can help to dictate what will happen in your business succession planning and give you a firm grounding for where you go from here. Consulting with an attorney and your advisors allows you to accomplish the meaningful goal of business succession planning.

What You Should Know About Family Business Succession Planning

Unfortunately, the majority of family business leaders do not engage in the process of business succession planning. Even if they do engage in it, they might not do it properly or they wait until it’s too late to achieve maximum impact.shutterstock_321333917

The average longevity of a CEO in a non-family business is six years, but CEOs in family-owned businesses usually stay for 20 to 25 years. What follows are several tips for succession planning. It’s important to remember that succession planning can occur at numerous levels throughout the organization and it is important to think at least about the top 5 to 8 positions to put into your written succession plan. Keep these points in mind.

  • Think outside of seniority
  • Use a professional process of regular performance assessment, skill evaluations, and reviews of career history
  • Rank possible successors based on key criteria like learning agility, past work experience, past performance ratings, the ability to take risks, decision-making ability, prior leadership positions, education and problem-solving ability.
  • Prepare the next generation with comprehensive planning
  • Consider a leader outside of the family

Although this process can be difficult for any family business, it can be made much easier by consulting with a New Jersey business succession planning attorney.



Tips for Passing the Torch: Three Goals for Business Succession Planning

There are several different things that your company can do to make the process of business succession planning that much easier.shutterstock_4720285

Putting together your plan once is not enough as you must be able to revisit this on a regular basis and make potential changes as you see fit.  It’s much easier to craft a plan and make small changes as you go rather than having the entire company try to adapt in the event of a sudden owner departure.

Having a long term strategy will make transitions easier when a key individual does depart from the company. Follow these tips to achieve maximum success with business succession planning.

  1. Track potential successors. Use survey feedback to identify potential leaders who could serve the company in the future. Make sure you identify who has what in the form of critical competencies attributes and skills.
  2. Communicate with potential candidates. You should never promise them a position necessarily, but you can give them an idea that you are considering them for a future role. This gives them the opportunity to get the most out of training.
  3. Have an emergency plan. This should be a disciplined step by step approach for training successors quickly and immediately in the event that a business owner is no longer able to do this.

What Veteran Business Owners Should Know About Succession Planning

Research from the Small Business Administration indicates that there are over 3.7 million small businesses owned by veterans across the country. These make up approximately 9% of U.S. companies overall. Entrepreneurs and veteran business owners certainly make important contributions to growth in the American economy as well as business creation, but they need to be aware of the challenges associated with ignoring their business succession planning.shutterstock_172218401

In a recent national study, veteran business owners indicated that they were more likely to say they were in the process of winding down their business than the general population. This could be due to the fact that the majority of veteran business owners tend to be older than individuals in the general population and therefore more likely to be thinking about retirement or other life changes that would encourage the close of a business. There are several important things you can do in this process.

  • Start planning
  • Identify your transition options
  • Prepare for a comprehensive business evaluation

Going through each of these stages can be especially helpful for protecting your interests and ensuring that you are adequately prepared for moving on from your business.

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Shah & Associates, P.C. Estate Planning & Elder Law Blog