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S-Corp or LLC or LLP / If you're still alive you need a Will July 4, 2017

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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S-Corp or LLC or LLP / If you're still alive you need a Will
July 4,  2017
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S-Corp or LLC or LLP
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Ken,
    Responding to Dwight’s email on May 23, 2017, in which he mentions forming an LLP, presumably as the entity for his business.  Your advice that he consider forming an S Corporation was correct. LLP’s sound sexy and cool, but they typically aren’t the best entity for a small business.  There are enough factors to consider to fill an entire seminar, but one thing that he should consider is that “partners” of an LLP pay Social Security and Medicare  (Self Employment) “tax” on substantially all of their earnings, while stockholders in an S Corp may be able to avoid a portion of these taxes.  The IRS rules regarding Partnerships are more complicated than the rules regarding S Corporations. 
    I would assume that by “contract in regards to LLP” Dwight means a Partnership Agreement.  I would strongly advice Dwiight, or anyone else forming a business entity with multiple owners, to seek your counsel in preparing an agreement.  Like the old Penzoil commercial said, “pay now or pay later.”  … a lot more later.
Mitch Reitman
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Response
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    I would challenge any accountant or lawyer who recommended an LLP or LLC over the business S-Corp.  I'd start with the proposition that the S-Corp is the preferred entity and then want to know why something else is suggested.  There may be a good reason, but for most small to mid size alarm companies the S-Corp is suffiicent and probably best.  One question you may have for your advisor is, if I am the Managing Member of the LLC or the Managing Partner of the LLP do I have personal liability?  I think the answer may be YES.  Unless it's NO I don't think you have any more questions.  
    Unless you own your business by yourself, you need a Stockholders Agreement if a Corp, or an Operating Agreement if an LLC or Partnership Agreement if LLP. and I don't mean a form that comes with the kit.  You need an agreement prepared by someone who knows your alarm business.  Provisions dealing with operations and buy out need to be addressed by an attorney who knows the alarm industry.  [if your accountant formed your entitly then kick yourself in the butt and then fire your accountant.  At the very least tell the accountant to stick to doing your books and taxes].  If your insurance broker sent you a buyout agreement, stockholder or other agreement, kick yourself in the butt and tell your insurance broker to stick to finding you better and less expensive insurance.  
    Do you need an agreement?  Well, literally millions of lawsuits are started each year, the overwhelming majority between family member and former best friends; so you tell me, do you need an agreement?
    Our corporate department can help you with the agreement.  Contact Jennifer Kirschenbaum,Esq at 516 747 6700 x 302 or Jennifer@Kirschengbaumesq.com
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If you're still alive you need a Will
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    Most people don't want to think too much about a Will.  You need one if you have minor children or assets in your name that will not transfer automatically upon your death.  If you own assets with your wife, for example, jointly with right of survivorship, the asset [could be house or bank account] will transfer to the survivor upon death of the first joint owner.  You can make arrangement for many assets to transfer on death, like real property, bank and brokerage accounts, but most likely not all, especially if you own an alarm business.
    A Last Will and Testament is a document that speaks as of the date of death and provides your final determination where your assets should go.  When you die the estate is created.  Your executor or executorix is charged with administering your estate, which generally means liquidating and distributing your assets.  Sometimes the estate requires the executor to run a business or make investment decisions, so the executor should be someone with a business mind capable of administering the estate.  The Wills I do typically leave everything to the surviving spouse and then to the children.  Sometimes specific individuals are excluded from the estate.  Though you are pretty much free to leave your assets to whomever you chose, you may be in a state that gives a surviving spouse certain minimun rights to a percentage of your estate, and your executor will be required to pay off your legally enforceable debts before distributing to your intended beneficiaries.  
    Continuity of running your business should be considered, as well as transitioning or selling your interest in the business.  If you have other shareholders or partners in your business then you should have an agreement in place that deals with the death of an owner and how that owner gets bought out or the business is sold and proceeds divided among the owners, including the estate of the deceased owner.
    Estate taxes should be considered if your assets exceed $5,500,000.  If you're married then your wife can also have that amound, so unless you have over $11 million there may be no federal estate tax [there may be state tax, but that's generally much less than the federal tax].  If your assets come close to this level then you should have a testamentary trust in the Will where you leave your surviving spouse up to what is called the unified gift and estate tax credit in a spousal trust.  Your spouse gets the benefit of the trust fund but it won't be included in the surviving spouse's estate.  Hopefully D Trump will get rid of the federal estate tax and we won't have to worry about the federal tax.
    If you have minor children it's important to name a guardian in case you and your spouse die.  You'll also need a trust for the children and a trustee to administer the trust.  The guardian should be someone who you believe will raise your children as you would, and the trustee is someone who will be able to adminstered the money as you would.  Yes, can be same person, though I usually advise against it, for obvious conflict of interest reasons.  
    I know you don't want to think about a Will, but you really should.  Don't put it off.  Cost of a Will should range from $300 to $1500 depending on complexity and how cooperative you are in providing the information and attending the execution of the WIll, which must be done in a formal setting, usually the lawyer's office.  
    I'd be happy to answer any questions you may have on estate planning or Wills, but my office will only prepare your Will if you are in New York; elsewhere find an attorney who you trust.  If you want to consult on estate planning or a Will call our Contract Administrator Eileen Wagda for an appointment.  Her contact is 516 747 6700 x 312 or EWagda@Kirschenbaumesq.com  [buy an updated contract while you have her on the phone]
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com
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