Tag Archives: LLC

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Succession Planning for LLCs

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A business is like other types of property. If you die owning them in your personal name, there will need to be a probate. Don’t be like the young lady above, whose parents owned an LLC but failed to specify how the business would be managed when the parents died. Think about it. There might be payroll, bills, customers needing service. And no one is legally authorized to do anything. However, this is easily avoided. This blog will discuss two basic types of succession planning for LLCs.

In Arizona, there is a statute that covers “non-probate transfers.” As an example, if your house is in joint tenancy with your wife (or husband), then when you die, it goes to your spouse. The same thing happens with a checking account. If it’s jointly held, it goes to the joint owner.

You can do the same thing for a limited liability company (or for that matter, any other type of business). But it requires additional documentation that most people don’t do. For a limited liability company, we would rely on A.R.S. 14-6101 (“Nonprobate transfers on death; nontestamentary nature”). That statute basically says that an asset that is owned by the deceased person, and that is controlled by a written instrument, passes to a person the deceased person designates either in the written instrument or in a separate writing.

There are two basic ways to make sure a limited liability company is not tied up in probate after the owner dies. My preference is to have the LLC owned by a revocable trust. The revocable trust then says what happens to the property (including the company) after the owner dies. The second way is to name one or more beneficiaries of the member’s ownership interest in either a company document (such as a Member’s Operating Agreement) or (even simpler yet) on a separate writing like a Beneficiary Designation.

The quickest way to name a beneficiary of your LLC’s membership interest is by signing a form similar to this:

“Effective upon my death, I hereby assign all of my right, title, and interest in __________________, LLC to ______________________.”

Succession planning for LLCs can be tricky. It’s best to have an attorney do this for you because you want to make sure you are having the correct person sign it. I’m saying this because transferring assets can involve community property interests (if you are married) or other issues. If that’s the case, decide whether you want the spouse to sign a waiver of community property interest. It should also be acknowledged by a notary.

If you have any questions, feel free to give us a call at 602-443-4888.


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Business Owners Need Estate Plans

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Business owners need estate plans in order to ensure their businesses survive once they pass away. Here is why. Let’s say you own a successful business. It has lots of employees and ongoing business. There are contracts that need to be completed, and staff that needs to be paid. Then you die. You have a Will that names your spouse as the Personal Representative (executor). However, Wills need to be probated, and normally the soonest that can happen is one week from the date of death. Assuming there aren’t any hangups (such as the Will failing to waive bond), the surviving spouse can be appointed as Personal Representative right away.

But a week can be an eternity in the business world. Employment laws dictate that payroll needs to be paid within a certain time after the pay period ends. And what if there are employees in the field who need expenses covered?

Also, who is going to manage the business until it gets sold? Selling a business can’t be done in a matter of days. It takes time. Can your business last the months is normally takes to find a buyer and arrange a sale?

Here is the best way to plan ahead of time. The best way to plan ahead is to have a revocable trust that names a responsible (and business savvy) trustee to take over if you can no longer manage your business. Then make sure that your trust owns the business. If your business is an LLC, the member of the business needs to be the trust. (In other words, you will file Articles of Amendment for your LLC that replaces you as the member with, for example, “John Doe, Trustee of the ABC Trust, dated January 1, 2014.”) Make sure the trust language permits the trustee to manage an ongoing business, and that it permits the trustee to delegate the responsibility of managing the business to a replacement business manager.

NOTE: The word “manager” is used in two different ways here, and it can be confusing. The “manager” of an LLC is the person listed with the Secretary of State as the person in charge of the LLC. However, in terms of managing a business, that may be completely different people. I normally assist clients in this regard by having the LLC Manager (the person named as the official manager on the Articles of Organization) sign a Resolution naming one or more assistant managers. These assistant managers are the people who are actually on the ground running the business: making sure that paychecks get signed, continuing marketing efforts, meeting with clients, etc.

You can read more on this topic at an enterprise.com article here.

Have you heard of situations in which the business owner died and the business struggled as a result? Do you have any insights? Please share below.


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