No matter what line of business you are in, the reality of being a successful business owner is that you open yourself up to a number of different risks—and the more successful you get, the more risks you face.
Asset-protection planning is intended to reduce or eliminate the risks of being in business by shielding your business and personal assets from litigants, creditors, and other potential threats to the fullest extent legally possible. And it’s crucial to have these strategies in place from the moment you open your doors, because once a claim or lawsuit is filed, it’s too late.
In fact, once a claim or lawsuit is filed, if you take certain actions to protect your assets, you could be at risk of being charged with fraud. So take action now, while there is nothing to worry about, and you still have access to a full array of options to protect your business and its assets.
While the specific protections you need will depend on the particulars of your business and personal assets, the following four strategies form the foundation of any comprehensive asset-protection plan.
1. Limit Personal Liability With Business Entities
One of the most fundamental asset-protection strategies is setting up the proper entity structure for your business. Without the correct entity in place, your personal assets would be at risk if your business ever falls into debt or is hit with a lawsuit. For example, if your company is structured as a sole proprietorship or general partnership and you go out of business, creditors would come after your personal assets to pay off your business debts.
By structuring your business as a limited liability company (LLC) or corporation, you can shield your personal assets from liabilities incurred by your business. Such structures establish your company as a separate legal entity that’s distinct from you as an individual, which prevents you from being personally liable for the company’s debts or legal liabilities.
As long as you properly maintain the separation of your business and personal assets, both LLCs and corporations effectively create a barrier between you and the activities of your business. In that case, creditors, clients, and other potentially litigious entities can go after your business assets, but not your personal assets. That said, you can still be held personally liable in certain situations, such as if your entity isn’t maintained properly or you mistakenly commingle your personal and business finances.
However, with our legal and financial systems and trusted guidance, keeping up with your entity’s administrative and compliance formalities is a snap. Contact us your Family Business Lawyer™ to find out what entity structure is best suited for your business and how we can ensure you have the maximum protection possible for your personal assets.
2. Invest In Business Insurance
While setting up a separate legal entity can safeguard your personal assets from your company’s liabilities, an entity will not protect your business assets—that’s where business insurance comes in. And since a single catastrophic event or lawsuit can wipe out your company, it’s vital that you have the proper insurance coverage in place from the moment you launch your business.
The type and amount of insurance coverage your company needs will largely depend on your particular company and its assets. That said, most businesses can benefit from the following forms of insurance: general liability insurance, professional liability insurance, property insurance, and employment practices insurance. Additionally, you should also consider investing in umbrella insurance, which would cover you for any damages that exceed the coverage limits of your other individual policies.
Before you sit down with an insurance agent, meet with us, your Family Business Lawyer™. We will evaluate your business assets and underlying risks to identify the optimal levels of coverage you should have in place.
3. Put Sound Legal Agreements In Place
Although using proper contracts and business agreements might not seem like a major priority for asset protection, the value of these documents should never be underestimated. In fact, these agreements are designed to protect your company’s most essential elements: your personal liability, your personal and professional relationships, your intellectual property, and your trade secrets, to name just a few.
In addition, legal agreements govern the rights and responsibilities of every party you do business with, from clients and vendors to employees and contractors. Given the importance of such documents, you should never rely on do-it-yourself (DIY) legal documents you find online when creating your business agreements. Instead, reach out to us, your Family Business Lawyer™ to support you in creating, reviewing, and updating your company’s legal documents—even those created by another lawyer—to ensure you have the most robust legal protection in place at all times.
In all cases, you must enter into legal agreements in the name of your business entity, not in your personal name. And whenever possible, be sure that your legal agreements include provisions requiring conflict resolution through mediation and arbitration, before litigation.
What’s more, in certain cases, the terms of your business agreements can be drafted to limit the level of liability and potential damages your business would face should a contractual dispute arise. That said, when it comes to limiting liability through contracts, state laws vary widely, so your agreements should be drafted and reviewed by a business attorney licensed in our state like us, your Family Business Lawyer™.
4. Protect Your Business With Trusts
If you’re looking for the maximum level of protection, you may want to consider using specially designed trusts to safeguard your business. Such trusts are set up so that your business is owned by the trust, not you, and since you can’t lose what you don’t own, your company and its assets can’t be reached by creditors or lawsuits.
These asset-protection trusts are not the same as the living trusts designed to protect the inheritance you want to leave for your family from the court process of probate in the event of your death or incapacity. Living trusts are revocable, meaning you still own the assets held by the trust while you’re alive, and as such, you can dissolve the trust or change its terms during your lifetime.
Because you still retain ownership of assets held by revocable living trusts, a revocable living trust does not provide you with any asset protection from creditors. Asset protection trusts, however, are irrevocable.
The most airtight protection is provided when you never own your business to begin with, and when the business is started by you as the trustee of an irrevocable trust set up for you by a parent or grandparent. And if you anticipate growing the value of the business significantly, this kind of trust setup can also provide extremely valuable estate tax protection. The one hitch here is that you have to have parents or grandparents who thought ahead and left you an inheritance inside an irrevocable trust at their death, or who are willing to set up an asset protection trust for you during their lifetime, so you can start your business with this airtight protection.
If you already have an ongoing business that you want to protect using asset protection trusts, you can transfer your business into a creditor-shielded asset protection trust, but there are many restrictions, and your protections will only begin after several years, depending on the state in which the trust is established. If this is something you’d like to consider to protect your assets from creditors that may arise in the future, or from significant estate taxes in the future, contact us now to discuss your options.
This article is a service of Liz Smith, Family Business Lawyer™. We offer a complete spectrum of legal services for businesses and can help you make the wisest choices on how to deal with your business throughout life and in the event of your death. We also offer a LIFT Start-Up Session™ or a LIFT Audit for an ongoing business, which includes a review of all the legal, financial, and tax systems you need for your business. Call us today to schedule your appointment at 907-312-5436, or find a time for us to call you.