How Limited Liability Companies Are Used in Estate Planning
Limited Liability Companies (LLCs) have become more prevalent in recent years to pass wealth from one generation to the next, while reducing gift and estate taxes. With estate tax rates as high as 40%, LLCs offer business and property owners an excellent opportunity to reduce taxes.
They have the added benefit of preventing business owners from being personally responsible for the company’s debts and providing protection from creditors. If the company files for bankruptcy or is sued, the owner’s personal assets cannot be attached. Of course, this protection is lost if a creditor has required a personal guarantee.
Why is an LLC Good for Estate Planning?
The IRS allows lifetime gifting of interests in an LLC with discounts of up to 40% of their value. Shares can also be gifted to family members without losing control of the company. Further discounts are applicable if the business owner gifts several children with a minority interest in each child. This means more estate may be transferred to heirs before reaching estate and gift tax thresholds.
The valuation discounts available when using an LLC result from several factors:
- Lack of marketability: the LLC is not publicly traded, so it has little or no market value.
- Lack of control: Shares give people ownership but no ability to control the LLC.
- Minority share: if each gift of an interest in the business is small enough, the shares are worth even less because the shareholder has less control of the business.
How is an LLC Structured?
Like a trust, the LLC is a separate legal entity. An LLC defines the owners as “members” and can include family members as well as other LLCs. LLCs are taxed as partnerships, which means the income from the LLC is divided among individual member’s taxes.
Establishing an LLC requires an operating agreement that outlines ownership percentages, transfer rights, decision-making powers and day-to-day operations. The operating agreement may restrict members’ ability to transfer interests in the business, especially to non-family members.
The operating agreement needs to identify the primary manager of the LLC and a secondary family member who will take over when the primary manager dies. An LLC member can own 99% of the equity but has no control if they are not a manager.
The operating agreement establishes rules for members regarding any acts impacting the LLC’s status. For instance, it may require all owners and managers to consent before dissolving the company.
Parents often create a family LLC with their children as members. The parents manage the LLC, and children or grandchildren hold shares without management or voting rights. Parents can buy, sell, trade, or otherwise distribute LLC assets.
The company is not treated separately from its owner, and any income earned by the LLC is taxed as income earned by the owner. Members report profits and losses on their individual tax returns; the LLC is not itself a taxable business entity.
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