The risky business of dying

August 2014

How would the death or disability of your business partners impact your business? We look at the value of buy-sell agreements and how to plan for the unthinkable.

When we go into business, there are many things that make up the planning and decision making process, but it's often not the case that business owners plan for the 'what-ifs?" such as the death or disability of a business partner or shareholder.

A lack of pre-existing arrangements can have a significant impact on both the business and other shareholders, such as having an unknown person (beneficiary of the shares) actively involved in the business or an unwilling shareholder.  Alternatively, the original shareholders may want to buy back the shares but have to raise the cash to do so.

If you are in business with shareholders, your business faces a major potential threat and its shareholders unexpected personal costs if one of your fellow shareholders dies or becomes permanently disabled.  And, the situation can be exacerbated where the shareholders are not related.

Good planning through buy/sell agreements and appropriate insurance can make all the difference.  

What does a buy/sell agreement do?
Many companies do not have a plan in place that contemplates the untimely death of its shareholders or a break-up of the shareholders and, as a result, do not have buy/sell agreements in place.

Buy/sell agreements are legal documents that define what happens in an event that may trigger the disposal of a shareholder's interest in a company.  Amongst other things, the agreement determines how the company will be valued and how shares can be disposed of in a series of scenarios including death.

A scenario
Imagine this scenario….

Michael, James, and Nadine are shareholders in a successful business, MJN Solutions.  The shares in the company are fairly evenly split reflecting the contribution that each has made to the business, with Michael and James each holding 35% and Nadine holding 30%.

They have been working together for years to build the business to its current level.  The business is now worth around $4 million and is still on a growth path. While no one is related to each other, everyone is close.  They have had their disagreements but they trust each other and respect each other's ability.  It's a fairly common scenario.

But one morning Michael and Nadine are shocked by a call from James' wife Monica, telling them that James has died in a car accident.

Outcome 1 – Nothing planned
Michael and Nadine have a problem beyond dealing with the demise of a close friend and trusted professional in the business.  While everyone knows that the unexpected can happen, nothing was planned or put in place to manage a worst-case scenario.

James' shareholding and the rights that come with it, transfer through his estate to his wife Monica.  Monica however wants nothing to do with the business that consumed so much of her husband's time.  She just wants to cash out the shares and get on with her life

MJN Solutions is still on a growth path and does not have the cash available to buy back James' shares.  This means that Michael and Nadine now need to personally fund the purchase of Monica's shares (assuming they can come to an agreement about what the company is really worth). If they are unable to come up with the money, then Monica will become an unwilling shareholder.

Outcome 2 – Pre-planning
Michael, James and Nadine worked with their accountants to put a buy/sell agreement in place to manage succession and unplanned events, such as the death of one of the shareholders.  The buy/sell agreement defines how MJN Solutions will be valued and how the equity will be managed.  

In this scenario, the buy/sell agreement states that James' shareholding will be purchased by Nadine and Michael if James dies or becomes permanently disabled.  During the planning process, the funding arrangements necessary were put in place should the buy/sell agreement be triggered.

In this scenario, Michael, James and Nadine opt to manage the funding through an insurance policy taken out in their own names. When James dies, the insurance proceeds are used to purchase James' shareholding.  As a result, neither Michael nor Nadine are out of pocket or take on debt, they own an increased share of the business, they avoid having an unplanned shareholder running the company, and they can get on with business.

Another way would be to fund the policy through a self managed superannuation fund - although there may be changes in this area with the ATO flagging that they will soon release their position on insurance held through superannuation for buy/sell agreements.  Whichever way you go, it will be important to get current, structured advice in this area.

Planning for the "what ifs"
While the above scenario outlines the process that could occur with appropriate plans in place, the reality for many small businesses is that the death of a shareholder can create a great deal of uncertainty for a business.

If you don't have arrangements in place for what happens in the business should the unthinkable happen, it's worth speaking to your accountant to understand the potential consequences and risks. Email us or call 02 9957 4033 to speak to an advisor.

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Last updated 21 August 2014. This article is provided for information purposes only and should not be used in place of advice from your accountant. Please contact us on 02 9957 4033 to discuss your specific circumstances.

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This article is provided for information purposes only and correct at the time of publication. It should not be used in place of advice from your accountant. Please contact us on 02 9957 4033 to discuss your specific circumstances.

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