Forgotten Essentials: Estate Planning for Business Owners

Business owners understand better than anyone that there are not enough hours in the day. With all the time, effort, and duties surrounding owning a business, a business owner can get overwhelmed with the number of items on their to-do list. Often a business owner will overlook one legal area that may ultimately be most important: estate planning.

 

Business owners work hard to build their businesses. This is usually done with the goal of providing for their family. However, without some estate planning, if the business owner passes away, all the hard work will not have been worth it because the family will not be protected.

 

The first estate planning tool for a business owner to consider is a buy sell agreement. This is an agreement that governs what happens if an owner dies or chooses to leave the business. This protects the interests of all owners. By agreeing beforehand how to handle these situations, the owners reduce the risk of lawsuits or other issues which could harm or ultimately ruin the business.

 

Next the business owner must consider estate planning documents that apply if the owner is incapacitated. This includes powers of attorney and advanced directives. A power of attorney is an authorization for someone to act on behalf of another regarding that person’s financial or legal needs. If an owner is incapacitated, then someone needs to have the power to make decisions and keep the business operating until the owner is able to do so himself or herself. Advanced directives are a set of written instructions for taking care of the health care decision of someone who is incapacitated. This helps ensure that the wishes of the owner regarding the medical they would receive if incapacitated are followed.

 

Finally, the business owner should make a will and consider using a trust, family limited partnership or LLC for certain property. This ensures that the business owner’s assets are divided between his or her heirs in the way that the business owner believes is best. The estate planning tools used by the business owner may have significant tax consequences.

 

In making any of these estate planning decisions, a business owner should consult an attorney to decide what would be best for his or her circumstances.

 

 

IRS and Independent Contractors

The Internal Revenue Service (IRS) has announced it is undergoing an extensive initiative to identify businesses that are incorrectly classifying employees as independent contractors. For those businesses that choose to reclassify their independent contractors as employees the IRS is charging a small penalty payment to cover past payroll taxes. For those businesses who choose to continue with the independent contractor status, but in reality have employees, the IRS could audit the business and assess a large penalty fee.

 

If you are paying independent contractors that may be considered to be employees, you need to know the difference so that you can avoid a potential audit by the IRS. However, the distinction between an independent contractor and an employee is fuzzy. To help you with this determination, below is a brief summary of some points the IRS will look at. However, as this is a difficult area of the law and one that is undergoing scrutiny, speaking with legal counsel will help you better determine if you are in an employee relationship or not.

The independent contractor (“IC”) must:

            1.  Have an independent business. A business license is helpful.

            2.  Be free from the control and direction of your business i.e. is independent.

            3.  Work outside of your place of business.