As a business owner, your company is likely your most valuable asset. And you know that you must account for it in your estate plan to help ensure that it remains a valuable asset for your heirs. Thus, a key goal should be to insulate your company and other assets from the claims of creditors and lawsuits.
When you create an asset protection plan proactively, you add a layer of protection before any claims or lawsuits arise. This can deter creditors and possibly thwart the seizure of assets.
Ownership structure matters
Depending on the structure of your business, you may have adequate protection from creditors, minimal protection or none at all. Thus, you might consider changing the ownership structure to create a corporate shield. Here are the three primary forms of ownership:
Generally, a C corporation provides limited liability exposure to the personal assets of its principals. There’s no personal liability for corporate debts, contract breaches or personal injuries to third parties caused by the corporation or its employees. So, a creditor can’t seize your personal assets if the corporation can’t pay its bills. This is a distinct advantage over traditional partnerships.
But be aware of an exception for certain personal services. For example, a physician might be held personally liable for damages incurred while performing services on behalf of a medical practice. In other situations, personal liability may be attached if the corporation has no significant assets and doesn’t really act as a separate entity.
With an S corporation, income and losses are passed through to shareholders on a personal level, thereby avoiding “double taxation” faced by C corporations. Like a C corporation, however, shareholders benefit from some corporate liability protection, albeit with additional limits as to the number and type of shareholders, allocation of profits and losses among shareholders, and the type of stock that may be issued to investors. For many business owners, an S corporation is the preferred choice.
Limited liability company (LLC)
An LLC operates much like an S corporation without some of the extra formalities. Significantly, LLC principals are afforded the same liability protection as those in a C corporation, along with the favorable “passthrough” tax benefits available to an S corporation.
Note that filing requirements and creditor protections for LLCs may vary from state to state. Nevertheless, state laws generally protect personal assets of LLC owners from claims based on LLC activities.
Build asset barriers
Most asset protection strategies for businesses involve putting up walls between a company and its assets. One way to do this is to divide the business into separate entities.
For example, you may want to form separate entities to conduct any business activities that are riskier than others. Doing so allows you to limit the liability risk associated with them. Provided the entities are structured and operated properly, you can prevent creditors from going after assets owned by other entities within the group, even if they have common ownership.
Another way to protect valuable business assets is to sell them to another entity created by the company’s owners and then lease them back. If done right, these assets no longer belong to your company, so they’re beyond the reach of the company’s creditors.
Talk to the professionals
Owning a business is a big responsibility, and you want your children to benefit from your hard work after you’re gone. Thus, it’s important to implement business asset protection strategies. Because these strategies can be complex, talk to your business, estate planning and legal advisors to determine your best course of action.
Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.