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By C. Eric Pfeil, Esquire and Nicole L. Phatak, Esquire

Anyone who owns a family business is intimately familiar with the blood, sweat, and tears associated with building and then keeping the business viable.  Nevertheless, it is not unusual for the business entrepreneur to postpone consideration of various issues involved in transferring the business to the next generation, including determining the value of the business.

This lack of preparation is often one of the reasons the risk of failure increases as family businesses are transferred to succeeding generations and a business exit startegy is not formulated.  As an analogy, think of selling a business in much the same way as selling your home.  The time to address issues is not on the cusp of a sale, as this reduces bargaining power.  Rather, prepare the home before you list it for sale. Similarly, you must prepare for the transfer of your business if it is to occur successfully.  In anticipation of this most important event, here are a number of points to ponder.

What is the value of the business? 

Determining the value of the business is essential to an effective exit plan, even if that plan involves giving the business away at death.  Unless an owner has a realistic understanding of value, it is impossible to understand the tax implications of the transfer.  Just as important, if the business will be transferred to certain family members, excluding others, knowing the value of the business is imperative if you are attempting to treat family members fairly.  That’s why utilizing the services of a professional appraiser is essential and need not be cost prohibitive.

To whom should the business be transferred? 

While the fair minded business owner would certainly like to treat each of his or her heirs equally, if less than all of the heirs work in the business, it’s utopic to think that transferring a business in this fashion makes sense.  Generally, this situation can breed resentment, especially if certain heirs work for the business and draw a salary, while the rest of the heirs receive little if any benefit from their ownership.

If the entrepreneur does not wish to leave the family business equally to his or her heirs, then are there other assets that can be used effectively to make non-business gifts to other heirs?  But if the business’s value is substantially larger than the balance of the individual’s other assets, this type of distribution may not be possible, particularly following the payment of death taxes. 

State Inheritance and/or Estate Tax

In this vein, how much federal estate tax and potentially state inheritance and/or estate tax will be payable at the death of the business owner?  Although Congress has not yet clarified how the federal estate tax will be modified when it is resurrected on January 1, 2011, as of the date of this writing, taxable estates in excess of $1 million will be subject to federal estate tax.  Assuming that some estate taxes will be payable, are there available funds that can be utilized to pay those taxes?  And if so, will those funds be depleted to the point where parity no longer exists between those intended to receive business versus non-business assets?  Or, if an estate plan is structured so that the estate taxes attributable to the business interests are to be paid by the recipients of those interests, will those individuals have their own money to pay the taxes? 

If a business is the entrepreneur’s largest asset in her estate, taking action during her lifetime may be the only way to ensure success in transferring the business to the next generation, including minimizing what can be an unmanageable estate tax at death.  Such action may include a thoughtful lifetime gifting program, or a partial sale of stock to those individuals.  Some form of a valuation discount may apply to the sale of some stock, particularly a minority interest, may be subject to some form of valuation discount, thereby enabling the transfer of a greater percentage of the company to the intended recipients.  A sale of stock may also increase the pool of funds that ultimately will be utilized to pay estate taxes, or make gifts of non-business interests. 
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