Estate Planning StrategiesThe Closely Held Business

Presented by:

Louis C. Grassi, CPA, CFE – Managing Partner and CEO

Estate Tax Basics

Fair value of married individuals’ estate is subject to estate tax on death of second spouse

Tax rates are: 35% for decedents dying or gifts made after January 1, 2010

and before December 31, 2012

40% for decedents dying or gifts made after December 31, 2012

Estate-Tax Exemption for 2013: $ 5,250,000 for individuals

$10,500,000 for married using full gift splitting

Estate Tax Example

Example – Closely Held Business Owner – Married & owns:FMV House $ 3,000,000

Cash, Stocks, Bonds $ 850,000

Jewelry $ 200,000

Stamp/Coin Collection $ 300,000

FMV Business $ 12,000,000

Traditional IRA’s $ 500,000

Decedent's Life Insurance $ 1,000,000

Total Estate $ 17,850,000

Exemption – combined amount (5,250,000 * 2)

$ 10,500,000

Funeral and Estate Expenses $ 350,000

Taxable Estate is… $ 7,000,000

Assume no planning and if the death of the second spouse occurs immediately after the first, the total taxable estate would be…

Federal Estate Tax due @ 40%

Life Insurance Proceeds

Cash & Securities

Federal Estate Tax shortfall – where is this cash coming from?

Estate Tax Calculation

$ 7,000,000

$ 2,800,000

$ 1,000,000

$ 850,000

$ 950,000

Action Steps:

Transfer residence to a Qualified Personal Residence Trust (QPRT)

Transfer life insurance to a life insurance trust to keep value of death benefit out of the estate

The biggest challenge is the illiquid value tied up in the business asset

Possible Estate Tax Solutions for Personal Assets

Post-Death

Do nothing and be forced to liquidate to settle the estate tax

Take the IRS on as a “Partner” in the closely-held business and pay the estate tax liability over time under IRC Sec. 6166, but this is no easy task and has its own risks best discussed as a separate topic

Sell to a third party to create liquidity

Pre-Death Planning

Purchase more life insurance to fund estate tax

Transfer to the next generation via gift, sale or combination of both

Various Estate Tax Solutions for Business Asset

Purchase Life Insurance to pay estate taxes relating to business value

To avoid estate taxes on Life Insurance the policy must not name the estate as beneficiary AND the deceased must not possess “incidents of ownership” at the time of death.

Create a Life Insurance Trust where the Trust owns the Life Insurance Policy and each beneficiary of the Insured’s estate is a beneficiary of the Life Insurance Trust – they receive yearly gifts from the insured to pay the premiums. Upon death, the life insurance benefit is used to pay estate taxes

The Life Insurance Solution:

Financial Buyer – will want to see several years of clear and consistent financials, with minimal shareholder notes and expenses. Any unusual or extraordinary items should be explained.

Competitor or other Strategic Buyer – probably best to hire a business broker or investment banker to handle process while owner focuses on the continued success of business.

Sale to employees – management buyouts or an employee stock ownership plan (ESOP); allows the business remain close and motivates employees to continue to grow the business because they now have “skin in the game.”

Sale to Third Party Solution:

Gifting Ownership at Discounted Value

Partial sale so next generation has some of their own assets at risk

Retention of Control

Next Generation Considerations

Valuation of closely held business

Gifting Using Discounts

1) Discount for “Lack of Marketability” – stock subject to restrictions like transferability has limited value to a 3rd party investor

2) Discount for “Lack of Control” – less than 51% stock ownership is a minority interest. Lack of control means shareholder has minimal say in important decisions of the business. Therefore, this stock also has limited value to a 3rd party investor.

Recapitalizing Company using Voting and Non-Voting Shares

Parent maintains Voting Interest Shares and retains control of company via voting rights – these shares will reflect a premium value to reflect the control value.

Children are either gifted or sold the Non-Voting Shares, which contain value, but do not enable the child shareholder any decision making powers in the company – these shares will also reflect a discounted value to reflect this lack of control. Hence more company ownership can be transferred because of the inherent discounted value of the non-voting shares.

Retention of Control

Intentionally Defective Grantor Trusts (IDGT) or Irrevocable Deemed Owned Trusts (IDOT)

Irrevocable Grantor Trust is created by parent for each child. These trusts are all “Grantor” trusts for income tax purposes, whereby the income earned by the trust is taxed to the parent – not the trust or the child even though they actually own the shares. This will allow the parent to reduce their taxable estate by paying yearly income taxes on the Grantor trust income. The trust property is not included in the gross estate of the grantor.

A provision can be added to a Grantor trust agreement which would allow the parent to be reimbursed by the trust for any taxes paid, if desired, because of lack of liquid assets to pay tax liability.

Trusts – Grantor Trusts

Grantor Retained Annuity Trusts - GRATS

Betting to Live – used to transfer appreciated assets in exchange for an annuity. GRATs are an irrevocable trust that can pay the grantor a fixed sum each year for life or a specified period in exchange for a initial transfer of another asset, usually an interest in a closely held business. At the end of that period the remaining assets in the trust are distributed to the beneficiaries. If the grantor dies during the term of the GRAT, all the property transferred into the GRAT will revert back to grantor and be part of the grantor’s gross estate. If the Grantor survives the team, hopefully tremendous value of an appreciated asset has been transferred out of the Grantor’s gross estate.

Succession Planning

Key manage-ment leaves be-cause no owner-

ship transfer plan16%

Other2%

Price owner wants is too high

16%

Children not ca-pable of running

business17%

Competent management leaves because of nepotism

9%

No competent successor

management31%

Unaware of possible alter-natives of ownership trans-

fer9%

Most Common Reasons for Ownership Transfer Plans Not Working

Sell to a third party9%

Sell to employees42%

Sell/gift to a fam-ily member(s)

28%

Sell to both family members and

employees 19%

Liquidate2%

Succession Planning

Definitive Ownership Transfer Plans

Employees aren't ready31%

I'm not ready28%

Unsure or un-aware of tech-

niques of transfer29%

In process5%

Other7%

Estate Planning

Ownership Transfer Plan Concerns

Planning for Family Harmony

Giving children grossly unequal shares of the estate

Punishing financially successful children

Forcing children to own property together after your death

Failing to communicate your plan to your children

Tax law is a science, but family harmony is a very personal art. Most clients agree that it’s more important than the things they own.

Pitfalls to Avoid:

Document transactions properly

Don’t punish success

Be fair

Be discreet

Be creative

An Ounce of Prevention:

Planning for Family Harmony

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Explore Options

Buy-Sell Agreements

Sale of shares via promissory notes, to be paid with bonuses or after-tax distributions

Gifting shares

Trusts as shareholders

Keeping the business in the family is often the primary goal of succession planning:

Other Alternatives if keeping the business in the family is not the goal:

Explore Options

Management Buyouts

Sale to employees through an Employee Stock Ownership (ESOP) or cooperative

Sale to outsiders

Liquidation

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Implementation of Plan

Divorce or remarriage of any primary participant in the plan

Death, disability, retirement or other departure of any stakeholders involved

Substantial change in the profits of the business

Some important events should trigger a visit to the owner’s service professionals for possible revisions to the plan. These include:

Questions?

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