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Is a Buy/Sell Necessary?
By Kevin Spafford, CFP®
Founder - Legacy by Design, LLC
A buy/sell agreement may be the most important, yet most misunderstood and unappreciated document in the succession planner’s arsenal. In its most basic form, a buy/sell agreement insulates the operation from unwelcome owners. It ensures an opportunity for the business to continue when faced with catastrophe, i.e.: death or disability of an owner. A well-crafted buy/sell agreement may serve as referee for disputes between owners before they reach a breaking point.
It’ll only take a few moments to decide if you need a buy/sell agreement:
1. Is Ownership by Outsiders Undesirable? A common factor in family organizations, many will prefer ownership remain with the family and be restricted to lineal descendants. A buy/sell agreement ensures that ownership interests cannot pass beyond the existing group of owners or beyond their control without prior approval.
2. Is Ownership by Outsiders Subject to Approval? If so, is this provision specified in writing and will your agreement specify how to reach an approval decision? The buy/sell agreement should include written provisions that ensure all new or additional ownership interests must be approved prior to acquisition by an outside/unrelated third-party.
3. Can Future Ownership Conflicts Be Foreseen? Listing and then working through a list of ‘what ifs’ will help the owner group anticipate and plan for resolutions. An attorney we worked with to draft articles for incorporation for a client family opened the conversation by saying, “Let’s plan the divorce first.” Though a bit startling, given some thought, it makes sense…
A properly designed buy/sell agreement can ensure all owners are awarded a first right of refusal and avoid, “if we’d have only known!”
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