Most business owners pay close attention to the taxes that are assessed on gross revenue, taxable income, and payroll. A more significant tax is lurking as the profitability and stability of the closely-held business is established. Over time this tax liability may become so significant as to alter the ability of the business owner to transfer the business to the “next generation.”  This tax is the estate tax.  And, unlike most other taxes that are assessed on the economic results of operations, the estate tax is based on the value of the company as a whole.

Estate taxes are due in a relatively short period of time. Most small businesses are “for sale” for more than a year.  Yet, estate taxes are due in a matter of months from the date of death of the business owner.  To the extent the business is the most significant, or only, asset in the estate, liquidating that asset to pay the taxes can cause a huge economic loss through a “fire sale” of an asset that otherwise would sell for much more.

Unintended Consequences

Another significant issue in estate planning is the attempt by most to “equalize” the estate among children. Consider this example:  An estate consists of a business, a personal residence, marketable securities and cash.  There are three children and the estate documents state that one sibling is to get the business, another the home, and the rest of the estate to the third sibling with a cash payment made to equalize the estate value.  It sounds simple – the estate is split equally among the three children.  This is a very common scenario.  It may make a lot of sense when the planning documents are established.

However, the practical result is often quite complex and problematic. One possibility is that the cash and marketable securities are depleted by professional fees and taxes.  That leaves two siblings with valuable but illiquid assets.  Another possibility is that the sibling with the business has the asset that is substantially more valuable than any of the other assets but is the least marketable.  Since there is insufficient cash in the estate and/or the business, the only practical solution is to split up the ownership of the business to equalize the estate.  This raises considerations of management control and profit allocation among the siblings.  Valuing the partial interests becomes a difficult and cumbersome process.

Five Key Steps

The above illustrates some of the complexities involved in owning a small business at the time of death. The challenge is not just estate taxes but also succession of ownership in such a way that the business is not disrupted. The following are five key steps to consider when preparing a comprehensive estate plan involving a closely-held business.