Some clients reach out to me because they want a business attorney for governance contracts. Others want an estate planning lawyer to draft a last will and testament or trust. What can be confusing is how and why the two areas might overlap. Why am I asking the businessperson about estate planning? And why ask somebody who wants a will about how his or her business is structured? After all, one practice area is called “business law” and the other “estate planning”. They called me for a specific need. Why am I looking in another direction?
The truth is that many areas of the law overlap. Probate attorneys may need to work with real estate. Clients of a personal injury or family law lawyer may have a newfound estate planning need. Tax planning lawyers often consider tax efficiency in estate and business planning. Tax may be a probate consideration. A lawsuit can cover any number of practice areas. The names for a practice area don’t always do it justice. There is frequently more involved.
Let’s look at the client who calls a lawyer for help with estate planning documents. A last will and testament and/or trust are drafted. Those documents can direct where certain assets go when the person dies. They can also aim to reduce tax liability. However, this will not completely do the job for some business owners. This is particularly true if there are multiple owners of the business. Will the business interest be sold when the owner dies? Passed down to family? Is there a market for it? Who will buy? What is the price? What are the terms? Does the purchaser have the cash to pay for it? A buy sell agreement within the business or South Carolina statutes may answer these questions. The business interest might be the most valuable asset. We need to know how it will be dealt with. Without that understanding, we don’t know that the estate planning documents provide for tax savings and easy administration.
On the other hand, a business owner might reach out for help with corporate agreements. Many of these will direct how business ownership gets passed down at death. The articles of organization or incorporation can make elections about what South Carolina statutes will be used. Some of those statutes have buy sell provisions. Bylaws, corporate books, shareholder’s agreements, and operating agreements may use or incorporate buy sell language. Buy sell provisions are drafted to pass ownership along as agreed. In that way, they are connected to your will or trust. What we need to know is how all this meshes together.
The goal is to make sure everything is considered. Business succession and estate planning are interrelated. Your planning documents should connected in a way that works.