Business Owners Wills
Whether you own a business or not, it’s undeniably important to write a Will. If a Will is not in place upon death, you risk your property, possessions and money being left to people you wouldn’t have chosen to leave such things to.
However, if you do happen to be a business owner or a shareholder, this will mean you have to think about your Will from not only a personal perspective, but a business perspective as well. A well written Business Owners Will can provide comfort that your business will be in good hands after your death.
Why do business owners need a Will?
We know this isn’t a necessarily fun thing to think about, but it’ll certainly make things a lot easier for your loved ones and fellow business partners upon the unfortunate event of your death. It’s important to sort this out in preparation for such an event.
If a Will isn’t in place, the shares could be transferred to someone under the intestacy rules, but provisions in the business’ articles of association or a shareholders’ agreement might prevent this from happening.
You must carefully think about who you would like to inherit your business shares or interest. You wouldn’t want them passing onto someone who isn’t interested in your business. In these kinds of circumstances, the business risks facing problems such as conflict between existing owners and new owners, which could lead to mismanagement and demoralising the employees.
A clearly-written Will can ensure that such complications don’t happen.
Small Business Owners – The Importance of a Will
Writing a Will that strongly and clearly considers your business is particularly important if you’re a small business owner. One reason for this is due to the fact that your family may well be dependent on the income of your business.
There are two main options you should consider when planning what will happen with your business when writing your Will. You could plan for the business to transfer down to the next generation (or maybe your spouse), or on the other hand your shares could be sold to provide money for your beneficiaries.
One thing to consider is whether your heirs have the business-expertise to take control of your business effectively or not. If a family member who doesn’t have the right knowledge is to take over management of the business, it may end up failing, making any tax bill more daunting, without the business income to help pay for it.
Succession Planning – Who is going to take over your business?
When setting up a new business, and continuing in the running of the business, we know that it’s easy to get caught up in the fun of it and making sure the cogs are turning well in the present moment; and this is definitely very crucial. But it’s also extremely important to plan ahead, far ahead, especially when it comes to thinking about what happens to your business when you pass away.
Your business may not just automatically pass on to the person you’d like it to, whether it be a business partner or a family member, causing problems for these people after your death.
Succession Planning will ensure that there is no conflict regarding who is to take control of your business. Furthermore, this planning can prevent inheritance tax (IHT) saving opportunities from being lost.
It would be beneficial to be open about succession planning and let people know if they are potentially going to be the one to take over, so you can give them the advice and training needed to effectively fulfil your role in the company.
Succession planning also involves considering if your business will be subject to IHT, and potential tax reliefs that are available. Business Property Relief is a relief from IHT which applies to assets that fulfil certain criteria. Business assets that have been owned by the deceased for at least two years may benefit from this type of tax relief.
A shareholders’ agreement is a contract which regulates the shareholders’ relationships, protects their investment in the company, and sets out their rights and obligations. It is an important agreement for a number of reasons, including maintaining good relationships between shareholders. This can save much time and costs in the future by avoiding potential disputes that can arise without this agreement in place. Furthermore, it can massively help in avoiding future conflict in the event of a shareholder passing away.
Of course, there is no obligation for shareholders to enter a shareholders’ agreement; without one, the business will be run according to its articles of association. However, there are plenty of reasons why a shareholders’ agreement is a good idea. Particularly, it will come in very handy upon the death of a shareholder.
When a shareholder dies, their shares shall pass on to whoever is stated in the Will. If there is not a Will in place, then rules of intestacy apply. The deceased’s rights will be administered by the Personal Representatives (known as the Executor if a Will was made, Administrator of the estate if not).
In the sad event of the death of a shareholder, their shares may pass on to a family member through their estate if there is not a shareholders’ agreement in place. A big reason why this can be problematic is because the new shareholder isn’t guaranteed to be a good business partner for the existing shareholder.
Additionally, the deceased may never have actually intended to pass on their shares to a family member in the first place. Similarly, the inheriting family member may not have ever had the wish to become a shareholder of the business. Ensuring that a shareholders’ agreement has been made can effectively rule out these types of problems, with the agreement setting out certain provisions stating what should happen to the shares.
For example, a shareholders’ agreement can include rights of pre-emption, which ensures that the deceased’s shares are offered to the surviving shareholders before they can be offered anyone else. Such a provision can be effective in protecting the interests of these remaining shareholders, ensuring that an outsider with no business experience cannot become a big part of the company.
Compulsory transfer provisions
Compulsory transfer provisions can also be included in a shareholders’ agreement. These provisions set out what will happen to shares in a number of circumstances, such as if a shareholder goes bankrupt, retires, or dies. The compulsory transfer provisions, in these situations, allows the business to buy the shares back or sell them to other shareholders or even third parties; it’s widely up to the businesses itself and therefore offers them protection.
Another detail that can be included in a shareholders’ agreement is a cross-option agreement. A cross-option agreement can be put in place with the benefit of protecting the business’ interests.
This enables the owners of a business to give each other options that become available upon the death of one of the shareholders involved. The cross-option agreement provides rights to the existing shareholders to make the deceased’s personal representatives sell the outstanding shares to them.
Similarly, this agreement also gives the personal representatives the ability to ‘force’ the surviving shareholders to purchase these available shares.
A shareholders’ agreement can remain private as it is not a document which needs to be filed at Companies House.
Key Man Insurance
We all know businesses have their highs and lows, ups and downs. Even if your business is thriving and making good profits, sometimes the sad events of life can take over, things that are more important than business. In the unfortunate event of the death (or serious illness) of a key person in your business, as the owner, you may be left wondering what to do and how to deal with it.
Of course, there’s the emotionally difficult aspect to it, as you and your staff are likely to be saddened by the news. Additionally, you have to think about the business side of it too.
Key Man Insurance is absolutely crucial for you to invest in if you own a business. To put it simply, it means insuring your most valuable workers. By taking out key man insurance, you ensure that you’ll receive a sum of money paid to your business in order to cover any costs that may come as a result of an important employee passing away. The people insured are often the directors or founders of the business, but it could also be your most prolific sales guy, or someone with a specialist set of skills, like the IT whizz.
Let’s be more specific about the type of things that key man insurance can cover, shall we?
The main function of this insurance is to cover the death of a key employee who is instrumental in the financial success of your business. One of the main things that this insurance covers is any loss of profit that occur, or are likely to occur, as a result of the sad event.
If you have an important member of staff who has been told they have a serious illness or disability which means they cannot work for a long period of time, key man insurance can also cover the cost of a temporary replacement employee.
When someone dies, an executor will be appointed to deal with the administration of the deceased’s estate and carry out the wishes of the Will. The responsibility includes paying off liabilities and tax that is owed and also dealing with any assets they had. Plus, the executor is also in charge of distributing your estate between the beneficiaries as per your Will. This executor can be nominated in the Will itself. Therefore, if you are a business owner, you should think about who would best deal with your business after your passing.
Usually, most people will choose a family member to be their executor, but you have to ask yourself if this family member has the business mind appropriate for sorting your business out. If your executor is not prepared rightly for this task, the business is likely to suffer. Furthermore, if you hadn’t arranged someone to take control of the business upon your death, the executor may have to become the manager for the time being. This, similarly, could definitely be the wrong thing for your business, as they may not have sufficient business experience.
You may have spent years of your life working to make this business succeed and therefore wish for it to continue for the benefit of your children and dependants after you pass away. But if your children are too young or otherwise uninterested in running the business themselves, you may wish to appoint someone with business experience as your executor instead.
Even if you plan for your business to continue only in the short term, a business-minded executor can make sure that the value of the business remains at a good level before eventually selling it, before passing on the proceeds to your children.
Powers of Attorney (Property and Affairs)
It’s important to plan ahead. That’s a key thing to do in many aspects of life.
One thing that is important to plan for is the difficult and unfortunate event of losing your mental capacity to deal with things such as finances. If this does occur in the future though, it’ll be much less complicated to deal with if you prepare by drawing up a Lasting Power of Attorney (LPA).
A Lasting Power of Attorney is a legal document which sets out who can act on your behalf in the event of you being unable to make decisions yourself. You can nominate the person you wish to make decisions for you. Therefore, it’s really worth taking the time to think about who you want this person to be; it should be someone you trust.
One type of LPA is a Property and Affairs LPA. This type of document specifically enables the attorney/s to make decisions for you regarding your property and affairs. This includes aspects such as the collecting of income or benefits, moving house, and paying bills.
LPA for Business Owners
If you are a business owner, it is important to also choose an attorney under a Property and Affairs LPA depending on who you think would be best suited to deal with your business affairs too.
Without an LPA in place, your business could start to be mismanaged or even fail if the wrong person takes hold of the steering wheel should you lose capacity to keep running the business yourself. It’s also worth noting that you can actually have a Property and Affairs LPA in place for other events too, not just for when you’ve lost mental capacity. For example, you may wish for the attorney of your choice to take control of your business if you go on holiday.
Without an LPA in place, there will need to be an application made to the Court of Protection to appoint a Deputy to act on your behalf, under the Mental Health Act 2005. The problem with this is that the individual appoint as Deputy may not be who you’d have chosen, and they may not have the business knowledge to deal with that side of things for you. Furthermore, the process of appointing a Deputy through the Court of Protection can cost both time and money, which may impact the business even more.
Business Trusts and Property Trusts
The Business Trust is a discretionary trust in which business owners can pass on their business as a going concern in a tax efficient manner.
This is done by utilising Business Property Relief (BPR) from Inheritance Tax (IHT). BPR is available at either 100% or 50%, depending on the business assets in question, as long as the testator (the person who has made the Will) has owned them for at least two years.
Under such a trust, the trustees have broad discretionary powers to run the business once the testator has passed away. They may also sell the business if they wish to do so. The trustees also have the power to accumulate any income the trust receives from the business, or they can distribute some of this money to the beneficiaries.
What goes into the trust?
If the testator is married:
- all the testator’s business assets that qualify for 100% BPR can go into the trust.
- as can the assets that benefit from 50% BPR up to a maximum of the nil rate band for IHT, in which case only the amount that keeps the estate under the IHT threshold will go into the trust. Anything above this amount goes to residue and shall therefore be spouse exempt from IHT.
This is where it differs if you’re unmarried, because then all of the assets go into the trust, but IHT may have to be paid if some of them only qualify for 50% BPR.
Why should I leave my assets to a Business Trust rather than my spouse?
We understand why you think it might make more sense to just leave all your business assets to a spouse because they may be somewhat dependent on the business’ income, or maybe your spouse is a partner in the business and will continue running it anyway.
In such situations, it is still tax efficient to leave the business assets to a Business Trust. Your spouse can still take profit from the business trust to live on, and even be appointed as manager of the business, both at the discretion of the trustees.
However, in the event that the business assets are sold during the lifetime of the surviving spouse, the value of the business assets, being in trust, will not form part of the surviving spouse’s estate for Inheritance Tax purposes.
To give an example: Testator (‘T’) has an estate valued at £1,500,000, comprising a business worth £1,000,000 which attracts BPR at 100% and other assets worth £500,000. If T leaves his entire estate to his spouse (‘S’) who already has assets of £500,000, then if the business is sold after T’s death, on S’s death there will be an estate of £2,000,000 and Inheritance Tax of £540,000 will be payable (£2,000,000 less twice the nil rate band (£650,000) multiplied by 40%).
If T had left his business to a Business Trust and the residue to S, then if the business were sold after his death, on S’s death there would be an estate of £1,000,000 and Inheritance Tax of £140,000 would be payable (£1,000,000 less twice nil rate band (£650,000) multiplied by 40%).
Also, we acknowledge the possibility that your spouse may not be keen on the idea of running the business alongside trustees. In such a situation, the business trust allows for the trustees to offer to sell the business to the spouse for market value. So, as long as they have the funds to do so, the surviving spouse can purchase however much of the business the trustees own from them.
But how much is the business actually worth? The simple answer is whatever somebody will pay for it. There are several methods of valuing a business, but in terms of the Business Trust, the executors of the testator’s estate will probably obtain a professional valuation. Provided the business attracts 100% BPR, HM Revenue and Customs is unlikely to challenge a valuation as no Inheritance Tax will be payable in any event.
What does being a trustee of a Business Trust involve?
As with all trusts, a trustee can delegate the majority of the running of the trust to professionals if they wish to do so and those professionals will have those charges met by the trust.
However, if a trustee does not want to delegate (and bear in mind the costs of having a professional run a business trust could be very high indeed), their duties are quite onerous. As well as having to register the trust with HMRC and submit annual trust tax returns, they are one of the owners of a business and need to make decisions concerning the business’s strategy, investment etc. Whether they additionally have to take part in the day to day running of the business will depend on the management structure of the business.
On top of that, they need to decide what payments of income (and in what proportions) are made to discretionary beneficiaries, and, if the business is sold, whether and when to make payments of capital to discretionary beneficiaries.
All in all, it is not a role to be taken on lightly.
Who can be the trustees of a business trust?
It goes without saying that you must think carefully about who you’d like to be the trustees of any trust you set up.
Many businesses are family businesses run by family members. These family members might be ideal trustees. However, the testator might expect another family member who is not involved in the business to benefit from the trust – could this family member not benefit from the trust if the trustees arrange the business finances in such a way to reward themselves as employees, leaving no profits to be shared between beneficiaries? Remember, the only income the trust will have shall be declared profits – in the case of a limited company, this will be dividends and in the case of an unincorporated business, profits after all expenditure including salaries has been met.
Problems can occur when your business trust involves both family members who are and are not interested in the business, though. The individuals not involved with your business may have no care towards it and therefore lean towards the option of selling it for money, while the others may have the desire to continue running the business.
What are the tax implications of a Business Trust?
Income Tax - In the case of a Business Trust is taxed at the rate of 45% on income above £1,000 per annum (38.1% on dividend-type income). Although, it is possible to arrange, through payment of salaries, for little or no income tax to be payable by the trust if beneficiaries are employees.
Inheritance Tax – Ten-year anniversary charges or exit charges will not apply for the trust as long as it holds business property that attracts Business Property Relief.
If the trust holds cash or assets above the nil rate band for IHT after the trustees sell the business (if they want to do so), then exit and anniversary charges might have to be paid.
Capital Gains Tax – The value of the business on the day of the testator’s death is the value that the trust will acquire it. Any capital gain that is realised within the business could be subject to capital gains tax (CGT). Any appointment of trust assets to a beneficiary could have to face CGT on any increase in the value of that asset.
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