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My Will is My Business – the Essential Connection
Wednesday, January 20th, 2016

This one (2)

By Laura Di Cristofaro, Solicitor at Bowen Buchbinder Vilensky Lawyers

20 January 2016

We are constantly reminded of the importance of having a Will. The reality is, no adult is too young to make a Will and we must all confront our reluctance to plan for our succession.  Whilst the majority of us want to ensure that we provide security to our loved ones and our own legacy, many people never get around to actually doing anything about it.

So, what happens if you never execute a Will? Well, there are risks…

The most obvious risk is the complete loss of control of the distribution of your estate. If you die intestate, your estate is distributed in accordance with State Government Legislation. This means that your wishes or intentions have no relevance – the laws of intestacy dictate who gets your estate. Not only do you not have a say in who receives your estate, but you also lose control of imposing terms and conditions, such as age restrictions for beneficiaries to control their inheritance, implementing testamentary or special disability trusts or considering a fair and reasonable distribution between beneficiaries.  This gap between what the law says and what you might have wanted for your beneficiaries may quite possibly result in disharmony between beneficiaries and hardship for your administrator, as they try to navigate through administering an intestate estate.

Without giving thought to your estate planning, you also do not have a chance to properly consider binding death benefit nominations for your superannuation, Enduring Powers of Attorney for your financial affairs or Enduring Powers of Guardianship for your health and lifestyle needs.

Beyond considering your personal estate is the need to consider any assets that your business entities may own.  There is a wide misunderstanding about who owns assets that form part of any business entity.   If you operate as a sole trader, your business assets are your personal assets and accordingly do form part of your estate. On the other hand, assets owned by (for example) a trust or company belong to those separate legal entities and not to you personally.

The question then is, how do you ensure that your loved ones benefit from your business assets? Those persons in control of your business entity decide how the assets are dealt with.  It is therefore important to pass control of these entities to the right people, so that your intended beneficiaries eventually do receive the benefit of those assets.  This entails giving careful consideration to such mechanisms as gifting shares in a company or giving units in a unit trust to your intended beneficiary, or appointing that beneficiary as the successive appointor of your family trust.  If you die intestate and do not take the opportunity to give thought to whom or how you will pass control of these entities, you may leave your business (and possibly your family’s source of income) floundering.

As a shareholder of a company with multiple shareholders, it is vital to remember that if one of your fellow shareholders passes away and the shareholders haven’t addressed a succession plan for the company, then you could end up being in business with whomever inherits the deceased’s shares.  This may be his or her spouse, children or even someone entirely different. This can lead to significant disharmony and in turn could also lead to the company suffering financial loss and other prejudice because of a lack of proper management.  By implementing a business succession agreement (and the right insurances if necessary) or a shareholders agreement, one is able to ensure that they know exactly who they will be doing business with in the future and ensure the positive ongoing operation of the company and its officers.

It is quite clear – estate planning goes hand in hand with good business planning!

For more information or to discuss your Will and estate planning objectives and needs, please contact Laura Di Cristofaro at ldicristofaro@bbvlegal.com.au.

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The Benefits of a Shareholders Agreement
Friday, August 8th, 2014

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By David Vilensky, Director at Bowen Buchbinder Vilensky

8 August 2014

People who join together to form a company should consider entering into a shareholders agreement.  In essence, a shareholders agreement is a de facto partnership agreement and it supplements the constitution of the company.

A shareholders agreement protects the respective rights of each co-owner if their relationship were to turn sour.  The alternative could be a legal deadlock from which there will be no winners.

If your preferred entity is a unit trust, unit holders of a unit trust (the equivalent of shareholders of a company) can similarly enter into a unit holders agreement to supplement the unit trust deed.

A shareholders agreement provides a clear statement of how the co-owners plan to operate the company.  There is no such thing as a ‘standard’ shareholders agreement.  They are tailored to suit the particular business and needs of the participating shareholders and directors.  However, usual provisions in a shareholders agreement include:

  • Contingency plans that will be triggered by defined events, such as death or divorce or a take-over offer from a third party;
  • The terms on which one co-owner can buy out the interest of another, and the basis on which the business will be valued for that purpose;
  • A stipulation of a non-competitive period so that if one co-owner leaves they are unable to approach customers or suppliers or compete in the same market for a certain period;
  • Agreement as to the allotment of further shares;
  • Rights relating to the appoint of directors;
  • Amendments to the company constitution;
  • Agreed procedure for the sale of shares;
  • Signing of cheques drawn on the bank account of the company;
  • The employment by the company of any of the directors of the company;
  • Properly tailored dispute resolution processes;
  • Allocation of roles and duties in the business operated by the company;
  • How the company is to be funded.

Shareholders agreements and unit holders agreements provide a valuable resource in resolving disputes and clearly determining the rights of parties.  These in turn create certainty and stability in business relationships.

If you would like advice or assistance in this area please contact David Vilensky, Craig Hollett, Morgan Solomon, Tegan Short.

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