As a business owner, you’re going to have to decide when will be the right time to step out of the
family business and how you’ll do it. There are many estate planning tools you can use to transfer
your business. Selecting the right one will depend on whether you plan to retire from the business
or keep it until you die.
Perhaps you have children or other family members who wish to continue the business after your
death. Obviously, you’ll want to transfer your business to your successors at its full value.
However, with income, gift, and potential estate taxes, it takes careful planning to prevent some
(or all) of the business assets from being sold to pay them, perhaps leaving little for your
beneficiaries. Therefore, business succession planning must include ways not only to ensure the
continuity of your business, but also to do so with the smallest possible tax consequences.
Some of the more common strategies for minimizing taxes are explained briefly in the following
sections. Remember, none are without drawbacks. You’ll want to consult a tax professional as well
as your estate planning attorney to explore all strategies.
You and your estate may get some relief under the Internal Revenue Code
If you are prepared to begin transferring some of your business interest to your beneficiaries, a
systematic gifting program can help accomplish this while minimizing the gift tax liability that
might otherwise be incurred. This is done by utilizing your ability to gift up to $13,000 per year
per recipient without incurring gift tax. By transferring portions of your business in this manner,
over time you may manage to transfer a significant portion of your business free from gift tax.
Clearly, the disadvantage of relying solely on this method of transferring your business is the
amount of time necessary to complete the transfer of your entire estate.
In addition, Section 6166 of the Internal Revenue Code allows any estate taxes incurred because of
the inclusion of a closely held business in your estate to be deferred for 5 years (with
interest-only payments for the first four years and interest plus principal due in the fifth year),
and then paid in annual installments over a period of up to 10 years. This allows your
beneficiaries more time to raise sufficient funds or obtain more favorable interest rates. The
business must exceed 35 percent of your gross estate and must meet other requirements to qualify.
Selling your business interest outright
When you sell your business interest to a family member or someone else, you receive cash (or
assets you can convert to cash) that can be used to maintain your lifestyle or pay your estate
taxes. You choose when to sell–now, at your retirement, at your death, or anytime in between. As
long as the sale is for the full fair market value (FMV) of the business, it is not subject to
gift tax or estate tax. But if the sale occurs before your death, it may be subject to capital
Transferring your business interest with a buy-sell agreement
A buy-sell agreement is a legal contract that prearranges the sale of your business interest
between you and a willing buyer.
A buy-sell agreement lets you keep control of your interest until the occurrence of an event that
the agreement specifies, such as your retirement, disability, or death. Other events like divorce
can also be included as triggering events under a buy-sell agreement. When the triggering event
occurs, the buyer is obligated to buy your interest from you or your estate at the FMV. The buyer
can be a person, a group (such as co-owners), or the business itself. Price and sale terms are
prearranged, which eliminates the need for a fire sale if you become ill or when you die.
Remember, you are bound under a buy-sell agreement: You can’t sell or give your business to anyone
except the buyer named in the agreement without the buyer’s consent. This could restrict your
ability to reduce the size of your estate through lifetime gifts of your business interest, unless
you carefully coordinate your estate planning goals with the terms of your buy-sell agreement.
Grantor retained annuity trusts or grantor retained unitrusts
A more sophisticated business succession tool is a grantor retained annuity trust (GRAT) or a
grantor retained unitrust (GRUT). GRAT/GRUTs are irrevocable trusts to which you transfer
appreciating assets while retaining an income payment for a set period of time. At either the end
of the payment period or your death, the assets in the trust pass to the other trust beneficiaries
(the remainder beneficiaries). The value of the retained income is subtracted from the value of
the property transferred to the trust (i.e., a share of the business), so if you live beyond the
specified income period, the business may be ultimately transferred to the next generation at a
reduced value for estate tax or gift tax purposes.
A private annuity is the sale of property in exchange for a promise to make payments to you for the
rest of your life. Here, you transfer complete ownership of the business to family members or
another party (the buyer). The buyer in turn makes an unsecured promise to make periodic payments
to you for the rest of your life (a single life annuity) or for your life and the life of a second
person (a joint and survivor annuity). A joint and survivor annuity provides payments until the
death of the last survivor; that is, payments continue as long as either the husband or wife is
still alive. Again, because a private annuity is a sale and not a gift, it allows you to remove
assets from your estate without incurring gift tax or estate tax.
Until recently, exchanging property for an unsecured private annuity allowed you to spread out any
capital gain realized, deferring capital gains tax. However, this tax benefit has generally been
eliminated. If you’re considering a private annuity, be sure to talk to a tax professional.
Self-canceling installment notes
A self-canceling installment note (SCIN) allows you to transfer the business to the buyer in
exchange for a promissory note. The buyer must make a series of payments to you under that note. A
provision in the note states that at your death, the remaining payments will be canceled. SCINs
provide for a lifetime income stream and avoidance of gift tax and estate tax similar to private
annuities. Unlike private annuities, SCINs give you a security interest in the transferred
Family limited partnerships
A family limited partnership can also assist in transferring your business interest to family
members. First, you establish a partnership with both general and limited partnership interests. Then, you transfer the business to this partnership. You retain the general partnership interest for yourself, allowing you to maintain control over the day-to-day operation of the business. Over time, you gift the limited partnership interest to family members. The value of the gifts may be eligible for valuation discounts as a minority interest and for lack of marketability. If so, you may successfully transfer much of your business to your heirs at significant transfer tax savings.