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BUSINESS SUCCESSION PLANNING

■■ Any good estate planning exercise must involve succession planning of an
    estate planner’s business, where applicable.

■■ The estate planner needs to make plans for who will succeed him, who may
    purchase his shares on his death, whether the business should be sold, or
    who will have the rights to income generated by the business.

Partnerships /shareholders /members

■■ In the case of a partnership, it is automatically dissolved when one partner
    dies. All the surviving partner(s) can do is wind up the affairs of the partnership.

■■ In the case of shareholders in a company – do the remaining shareholders
    have first right of refusal to purchase the shareholding of a deceased
    shareholder? Will the heirs sell the inherited shares in the business?

■■ In many cases, the shareholder’s agreement (partnership agreement / 
    association agreement) will include a clause about the future ownership of
    the business.

■■ The clause may make provision for a “buy and sell” agreement to be
    concluded, which is a binding contract between the business partners in the
    event of the death of a partner.

■■ The buy and sell agreement usually states that on death, the executor of
    the deceased partner’s estate will be obliged to offer the deceased’s equity
    or shares to the remaining partners, and in turn, they will be obliged to
    purchase them. A time limit is set for this to take place, so that the winding
    up of the estate is not delayed (usually three months after the date of death).

■■ It is essential that a regular determination of the value of the business is
    obtained. This can take the form of an addendum to the agreement, signed
    by all parties, as soon as the annual financial accounts are available. The
    parties need to work together with their accountant and discuss the value of
    the underlying assets and goodwill. When the business is largely dependent
    on the input and skills of an individual as opposed to a trade, it is also
    important to agree on the intellectual capital.

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