Attorney, Daniel H. Alexander has over 20 years of experience in Estate Planning, Probate and Business Planning.
Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.
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An entrepreneur hopes to pass on the family business to his child. It's a simple goal, but the process requires careful planning.
Can an S-corporation be placed into a revocable living trust without losing its S-Corp status? Is this a good way to pass our company on to our children?
Yes, S-Corp. stock can be placed into a revocable living trust. In fact, such trusts are a standard estate-planning technique commonly used in states with high probate costs. Experts say that the revocable trust is useful because assets can be put in and taken out as the trust holder wishes and at his or her death, the fees, expenses, and potential complications of probate court are not incurred.
After the owner's death, the trust is permitted to own S-Corp stock for up to two years, during which time the trustee may be responsible for collecting assets, paying funeral bills, settling debts, and filing income- and estate-tax returns. After such administrative business is completed, the trustee is free to transfer the stock to your heirs.
If you choose a revocable trust as a vehicle for family business succession, keep a few things in mind:
You may want to make your child or children the trustee after you so that they can vote the stock of the corporation immediately and keep the company operating without a hitch. These tasks can be complex if the value of your business and other trust assets is large. Having your child take charge may make administration of the trust, and the business, that much easier.
Additionally put together a plan for transferring the company gradually over your lifetime. Generally speaking, transfers during your lifetime are the best way to leave a business to a child. If you hold all the stock until your death, it will be at full value when your child inherits it, and the estate taxes will be high. If you've been retired for a number of years, and your child has been running the company, they will wind up paying estate tax on all the value they created.
An estate planner will help you plan to make gifts of stock during your lifetime and invest in life insurance that will help cover the estate tax bill. Essentially, gift taxes are cheaper than estate taxes, so most of my clients give away pieces of their company gradually, and by the time they die, they've given all or most of it away so the inheritors will not have to pay estate tax at all.