Passing On Businesses: When to Use Trusts

In the landscape of family businesses, the transition of leadership and ownership is not just a matter of corporate governance but also of preserving a legacy and ensuring the continuity of values and vision that have propelled the business to its success. 

Among the plethora of mechanisms available for planning the succession of a family business, trusts stand out as a powerful tool, offering flexibility, privacy, and tax advantages. However, without careful planning and consideration, the use of trusts can also lead to disputes and complications. Let’s explore how to effectively plan for passing on a company using trusts and how to mitigate potential problems that could lead to disputes during the transition to new leadership within a family business.

Understanding Trusts in Estate Planning

A trust is a fiduciary arrangement that allows a third party, or trustee, to hold assets on behalf of beneficiaries. Trusts can be tailored to the specific needs and goals of a family business, making them an attractive option for business succession planning. There are several types of trusts, but the most common in the context of business succession are revocable trusts, irrevocable trusts, and special-purpose trusts like Grantor Retained Annuity Trusts (GRATs) or Charitable Remainder Trusts (CRTs).

Advantages of Using Trusts for Business Succession

Trusts offer the grantor (the person who establishes the trust) considerable flexibility in dictating how and when the assets, including the business interests, are distributed to the beneficiaries. This can be particularly useful in ensuring that the company is passed on to those who are interested and capable of running it. Other benefits include:

  • Tax Benefits: A properly structured trust can help minimize estate taxes, gift taxes, and generation-skipping transfer taxes, preserving more of the company’s value for future generations.
  • Privacy: Unlike wills, which become public records during the probate process, trusts operate privately, keeping the details of the company transition out of the public eye.
  • Avoidance of Probate: Assets held in a trust bypass the probate process, allowing for a potentially smoother and quicker transfer of the business to the beneficiaries.

Planning to Avoid Disputes

While trusts offer many benefits, their success in business succession planning depends on careful and strategic planning. Here are key considerations to avoid disputes:

  • Clear Communication: One of the most common sources of disputes is a lack of clear communication. The current leadership must communicate their succession plans, including the use of a trust, with all family members involved. This helps manage expectations and reduce misunderstandings.
  • Equitable Treatment of Family Members: Equitable does not always mean equal. In many cases, it may be appropriate for the family member who has been actively involved in the business to receive a larger share of the company assets than those who have not. However, providing fair and balanced consideration to all family members can help prevent feelings of resentment or neglect.
  • Selection of Trustees: The choice of trustee is paramount. A trustee with a deep understanding of both the family dynamics and the business can help navigate the complexities of managing the trust assets. In some cases, it may be wise to appoint a neutral, third-party trustee to avoid bias and conflicts of interest.
  • Regular Review and Update of Trust Documents: As the company evolves, so too should the trust documents. Regular reviews and updates can ensure that the trust reflects the current state of the company and the grantor’s wishes, adapting to changes in family circumstances, business valuation, and tax laws.

Build a Better Business Succession Plan 

Utilizing trusts in the succession planning of a family business offers a pathway to preserving the legacy and values of the company while ensuring its continued success. However, the creation of a trust should not be viewed as a set-and-forget strategy. To truly leverage the benefits of trusts and avoid potential disputes, ongoing communication, fair treatment of all family members, strategic selection of trustees, and regular updates to the trust documents are required. With these considerations in mind, trusts can serve as a cornerstone of a successful and harmonious business transition to the next generation.If you’re preparing to build a business succession plan as part of your estate, the experienced attorneys at The Dayton Law Firm P.C. can help. Learn more about how we can assist you with succession and estate planning by scheduling your consultation with our San Jose lawyers today.