How can I leave my SCorp business to an adult child without probate?
I have a S-CORP business that I would like to leave to my adult child. I would like to know which is better a trust or will? I am looking to protect assets, avoid probate & to have an easy transition.
There are at least two ways to accomplish your stated objectives--at least with respect to transferring the corporate ownership outside of probate. One way is for you to transfer your ownership percentage to a trust, and specify in both the trust instrument and your internal corporate governance documents (e.g., an operating agreement for an LLC, or shareholders agreement for a corporation) that your trustee has specific powers to act as the receiver and custodian for your entity until it is either transferred to your desired successor, or liquidated and dissolved, depending on the health of the business upon your death. If keeping the trust and the corporate entity completely separate is desired, however--in order to protect the trust from any business-related liabilities--you could use your operating agreement or shareholders agreement to treat your death or permanent incapacity as a buy-sell event that automatically transfers your equity interest to your child. Because the corporate governance instrument is a legally binding contract between the owners and the business, it is legally effective when executed by all the principals, and therefore preempts probate, insofar as the equity in the business is concerned. (Note that managerial power is not always automatically transferred with an economic beneficial interest, so your lawyer will need to address that nuance as well, in whatever plan you create.) Given the complexities and nuances that need to be worked through in order to do this effectively, you need an experienced lawyer who understands business succession plans, and the intersection between estate planning and corporate law, as you work on next steps. All the best to you this winter.