Proper LLC Formation and Governance: Sweating the Details

Setting up an LLC can, of course, offer many advantages. Chief among those advantages is an LLC’s flexibility. With less stringent requirements for compliance and less necessary paperwork than S-Corps and C-Corps, LLCs are easier to form and easier to keep in good legal standing.

The flexibility of an LLC, however, is not permission to be informal in its creation or operation. Consider the recent case before the 8th Circuit Court of Appeals, Robl Construction, Inc. v. Homoly.

Background. In 2002 Robl and Homoly formed a Kansas LLC, owning 60% and 40%, respectively. The Company began to have financial problems in 2004, operating at a loss between 2006 and 2011. During this time, Robl periodically advanced a total of $431,544 to the Company. Such advances are the subject of the parties’ dispute, with Robl contending that Homoly personally guaranteed to pay his portion of the advances, pursuant to the terms of the parties’ Buy-Sell Agreement, and also claiming that Homoly had breached such Agreement by failing to repay his 40% share of the loan.

Homoly in turn argued that while the advances may have been a loan, Homoly never personally guaranteed to repay it. In the absence of a clearly drafted LLC operating agreement, the dispute centered on e-mail correspondence between the parties as well as interpretation of their written agreements.

April 1, 2015 – a decision. On appeal following the lower court’s summary judgment in favor of Homoly, the 8th Circuit reversed and remanded for further proceedings, ruling that the evidence was not so one-sided that Homoly must prevail as a matter of law, and that a reasonable jury could return a verdict for Robl on its breach of contract claim.

As a lesson hard learned in forming an LLC and then operating it, this case is very instructive. For a more in-depth review and analysis, you can download to the WealthCounsel Thought Paper, Robl Construction, Inc. v. Homoly: A Lesson in Proper LLC Governance. 

Takeaways. While parties rarely enter into a business relationship expecting failure as an outcome, unfortunately the scenario above is far too common. As counsel for any newly formed or existing LLC, it would be wise to offer one’s client the following advice prior to LLC formation:

• Expect the best, but assume the worst. Draft your LLC documents, specifically your operating agreement, with “worst-case scenarios” in mind.  
• Formalize all agreements. Resist the temptation to make “gentleman’s agreements” with business partners for the sake of time or convenience.
• Keep in mind that email is discoverable and may be relied upon to determine the parties’ intent should a dispute arise.
• Read and understand agreements before signing them and realize that ignorance of the law (or the terms of the contract) is no defense.  
• Comply with the terms of an entity’s governing documents at all stages of a proposed action or transaction.  
• Consider amending the terms of an entity’s governing documents if they no longer meet the needs of the entity or serve the intent of its owners.

Justin Peltier is an estate planning attorney with offices located in Merrimac, MA with the sole focus of estate planning, elder law, probate and trust administration and business planning. Please view our website for more information at www.jpestateplanning.com or join our social media community below. You can also reach me directly at justin@jpestateplanning.com.

 

 

Should I Name My Trust beneficiary of my IRA?

I often say that your estate plan is only as good as your beneficiary designations. So why then for some what is their biggest asset, and IRA or a qualified plan, would they not list their Trust as beneficiary? ANSWER- Either their trust has not been drafted to accommodate this or they were unaware of its benefit or misinformed about the consequences.

Trust are often my favorite tool in the tool box and are no more appropriate that in the world of qualified money. A properly drafted trust can get the best of both worlds; conduit treatment for RMD purposes, and asset protection for the beneficiary, if desired.

Now there are some reasons why a Trust might better be suited as an accumulationt Trust rather than a conduit trust, most notably when you have a special needs beneficiary and the governmental benefit outweigh that tax advantage of RMD distributions. But for most others, a comprehensively drafted trust as beneficiary of an IRA will serve the beneficiary well.

What about RMDs? If "The Smith Trust" is listed as the beneficiary, you need to dig further into the trust. Life expectancy distributions would, in this case, be based on the oldest beneficiary. Not the worst case result. If there is a charity listed as a current or contingent beneficiary, there is a good chance that the IRA must follow the 5 year payout rule. If you have beneficiaries of differing ages, I suggest naming as beneficiary "the sub trust created for Bill Smith Jr in the Smith Family trust" along with Bill Jr's share %. This way each child or beneficiary will get life expectancy distributions based on their particular RMD table.

For maximum benefit and protection, I will often draft a standalone Retirement Trust and name it as the sole beneficiary of an IRA. This is an irrevocable trust whereby the Trust takes an RMD distribution based on the oldest beneficiary and the Trustee has authority to "sprinkle or spray" the after tax distribution among the beneficiaries as the trustee sees fit. This would be an excellent solution for troubled, at-risk, or divorce prone beneficiaries.

Under Treas. Reg. § 1.401(a)(9)-4 Q&A 5(b) the requirements for a Trust to qualify as a designated beneficiary are:

(1) The trust is a valid trust under state law, or would be but for the fact that there is no corpus.
(2) The trust is irrevocable or will, by its terms, become irrevocable upon the death of the employee.
(3) The beneficiaries of the trust who are beneficiaries with respect to the trust’s interest in the employee’s benefit are identifiable from the trust instrument within the meaning of A-1 of this section.
(4) The documentation described in A-6 of this section has been provided to the plan administrator.

Too often do IRA's go outright by way of beneficiary designation, for the informed advisor and savvy client, they don't have to.

Justin Peltier is an estate planning attorney with offices located in Merrimac, MA with the sole focus of estate planning, elder law, asset protection, trust and probate administration and business planning. Please view our website for more information at www.jpestateplanning.com or join our social media community below. You can also reach me directly at justin@jpestateplanning.com. Thank You.

 

How to Leave Assets to Adult Children

When considering how to leave assets to your adult children, first decide how much you want each one to receive. Most parents want to treat their children fairly, but this doesn’t necessarily mean they should receive equal shares of your estate. For example, you may want to give more to a child who is a teacher than to one who has a successful business. Or you may want to compensate a child who has taken care of you during an illness or your later years.

Some parents worry about leaving too much money to their children. They want their children to have enough to do whatever they wish, but not so much that they will be lazy and unproductive. Well, no one said you have to give everything to your children. You may prefer to leave more to your grandchildren and future generations through a trust, and/or make a generous charitable contribution.

Next, decide how you want your children to receive their inheritances. You have several options from which to choose.

Option 1: Give Some Now
If you can afford to give your children or grandchildren some of their inheritance now, you will experience the joy of seeing the results. You could help a child buy a house, start a business, be a stay-at-home parent to your grandchildren, or even see your grandchildren go to college—and know that it may not have happened without your help. This would also let you see how each child might handle a larger inheritance.

Option 2: Lump Sum
If your children are responsible adults, this may seem like a good choice—especially if they are older and you are concerned that they may not have many years left to enjoy the inheritance. However, once a beneficiary has possession of the assets, he or she could lose them to creditors, a lawsuit, or a divorce settlement. Even a current spouse can have access to assets that are placed in a joint account or if your child adds his/her spouse as a co-owner. If it bothers you that a son-or daughter-in law could end up with your assets, or that a creditor could seize them, or that a child might spend irresponsibly, a lump sum distribution may not be the right choice.

Option 3: Installments
Many parents like to give their children more than one opportunity to invest or use the inheritance wisely, which doesn’t always happen the first time around. Installments can be made at certain intervals (say, one-third upon your death, one-third five years later, and the final third five years after that) or at certain ages (say, age 25, age 30 and age 35). In either case, be sure to review your instructions from time to time and make changes as needed. For example, if you live a very long time, your children might not live long enough to receive the full inheritance—or, they may have passed the distribution ages and, by default, receive the entire inheritance in a lump sum.

Option 4: Keep Assets in a Trust
You can keep your assets in a trust and provide for your children, but not actually give the assets to them. Assets that remain in a trust are protected from a beneficiary’s creditors, lawsuits, irresponsible spending, and ex- and current spouses. If you have a special needs dependent, or if a child should become incapacitated, the trust can provide for this child without jeopardizing valuable government benefits. If you have a child who might need some incentive to earn a living, you can match the income he/she earns. (Be sure to allow for the possibility that this child might become unable to work or retires.) If you have a child who is financially secure, you can keep the assets in trust for your grandchildren and future generations, and still provide a safety net if this child’s situation changes and he/she needs financial help. This option gives you the most flexibility, control and protection over the assets you worked a lifetime to accumulate and build.

While there is no one right choice for how to leave assets to all adult children, given many individuals’ concerns over protecting inheritances from creditors (particularly ex son or daughters in law), many choose leaving their assets in trust for the benefit of their children and/or grandchildren. Regardless of your ultimate choice, this is an important decision that should be considered with input from your estate planning professional.