An operating agreement is an agreement among the owners (called “members”) of an LLC, defining their ownership, management and other determinations. It would generally be in writing.
All sizes of companies need an operating agreement. From the smallest 1-member LLC to a large multi-member LLC, an operating agreement is a critically important document. While detail and complexity will vary dramatically between a small, simple company and a large company, the core components of an operating agreement are important for any type of business. An LLC operating agreement provides legally-binding details of how a company is operated, who owns it, how decisions are made, how additional owners are added (or removed), how profits are to be shared, how ownership interests can (or cannot) be transferred, and so on. Missouri law requires each LLC to have an operating agreement and while it is possible to maintain a “oral” operating agreement, such are inherently problematic and generally ill-advised. In many instances, a thorough written operating agreement can be simple and straightforward.
When you create a trust, you typically name yourself (or perhaps you and your spouse) as the trustee(s) of your trust. The trustee manages the trust assets and makes determinations about investments and distributions. Of course, when you pass away, you will no longer be the trustee of your trust. So, who manages trust assets? Who makes determination regarding investments and distributions? A well-drafted trust agreement will provide detail and direction on these fronts, but someone must still be in charge (the trustee). When determining who to nominate for this central role, the following characteristics are important to consider:
Financial Competence. Skill at managing trust assets, keeping accurate records and properly handling finances will go a long way toward smooth and proper trust administration.
Strong Communication. The trustee will be interacting with beneficiaries. A strong ability to be clear, friendly and accurate is important.
Local. All things the same, a trustee based locally is generally better than one located out of town. Of course, this can vary depending on individual circumstances.
Familiarity. Familiarity with your goals and wishes can be helpful in situations where the trustee has some discretion in distributions.
The selection of the right trustee can make a major difference in the smooth and competent administration of a trust. While there is no perfect formula for selecting the right person (or trust company), ample consideration given to these qualities can be a good starting point.
Nearly any type of business venture (no matter how big or small) should be accompanied by the creation of a business entity. The term “business entity” refers to a limited liability company (LLC), a limited liability partnership (LLP), a corporation or other similar organization. In many cases, an LLC is the easiest and most flexible type of business form. So why is this so important? Operating as a unique business entity (as opposed to running a business in your own name) generally offers protection from personal liability. In other words, if the company faces some type of liability (contract, lawsuit, etc.) that liability does not extend to the individual owners of the company. The owner will not be personally liable for the debts and liabilities of the company. Of course, there are numerous important legal and procedural nuances to comply with to assure the viability of such limited liability. Additionally, a number of important tax issues interplay with any decision regarding a business entity. However, in the end, some type of business entity is nearly always strongly recommended for any type of business.
Determining which documents and tools best fit your goals and needs is central to having an effective estate plan. Do I need a trust? What’s the difference between a will and trust? Do I need both? Do I need either one? These are common questions. While there are deeper layers of detail and nuance that of course merit consideration, a simple explanation could go as follows:
A Will designates where your property goes but has to go through probate to do so. Probate is often costly and time-consuming. A Will does not offer much in the way of control and direction as to how property and money is used after you die. However, a Will is effective at making basic designations about property and in some circumstances, it is really all that is needed.
A trust avoids probate altogether and gives you wide-ranging control over how trust property is used. It is effective at addressing unknown variables in the future. It can be an especially effective tool when named beneficiaries are young or you do not want them to get their whole share of the trust at one time. A trust is also tremendously effective in planning for education, living expenses and other needs of beneficiaries. A trust’s administration after you die is also very private, is not generally intertwined with any type of court proceeding and it is usually a much more streamlined process when compared to probate.
Ultimately, the determination of what documents would make up an effective estate plan is highly dependent on your unique personal and family circumstances together with your goals and concerns.
When undertaking any type of estate planning, the question of “who?” becomes nearly as important as the questions of “what?” Designating the right person (or people) to manage financial and other affairs is tremendously important. When a trust is in place, the individual “in charge” of the trust is called the “trustee.” The trustee’s role is central in the management and administration of the trust. While the written terms contained in the agreement bind the trustee to certain duties, action and limitations, a trustee will undoubtedly still be given significant decision-making authority. In particular, a trustee generally (i) has broad discretion in investing trust assets and (ii) has some significant discretion relating to trust distributions to the named beneficiaries. Accordingly, an appropriate trustee must have financial aptitude and strong organizational skills. Trustworthiness and integrity are also a must. Communication skills are similarly a major advantage as the trustee will likely be communicating with the beneficiaries. The selection of the right trustee requires careful consideration and a thoughtful determination of who would best fill this central role.
Good estate planning contemplates potential future life changes. If the right planning is in place, a Will or Trust will remain viable for a long time. Sometimes life throws curve-balls (sudden death of a loved one, divorce, dramatic financial changes) that necessitate some changes to an existing estate plan. Also, laws sometime change in a manner that make it desirable to revisit existing estate planning.
So how do I know if I need to review my documents? A review every few years is a good idea. If it has been 10 or so years, a review is a really good idea. Whether changes would be beneficial will ultimately depend mostly on personal preferences and goals, coupled with the effects of any changes in life or in the law. I offer a free review at any time for any existing client. I also offer a review for new clients at a very modest cost.
Do I really need a Will? What about a trust? What’s power of attorney and why would I want to grant that to someone? These basic questions about the need and value of estate planning are common. The preparation of a will, powers of attorney over health care decisions and financial decisions and a health care directive is absolutely essential for everyone, no matter their income or wealth status.
In short, these documents and this type of planning can be boiled down to taking care of those around you. In varying fashion, each of these documents helps make life easier, smoother and less expensive for your loved ones in the event of your death, diminished capacity or similar circumstances. Proper estate planning provides answers (and clear directions) to questions such as: Who will handle my legal and financial matters if I become incapacitated? Who will make medical decisions for me if I cannot? Within what parameters? What happens to my property when I die? Who gets my money, property and personal affects? Who administratively handles my property and how? The questions that are addressed by estate planning could go on for pages and pages. In the end, estate planning matters and when done properly, ought to be straightforward and affordable while squarely addressing your unique personal and family circumstances.
In the course of estate planning, it is not uncommon for a client to share their concern about potential liability and to wonder what can be done to help protect them from a lawsuit or some other type of financial liability. Does a trust shield your assets from liability in such circumstances?
A revocable living trust typically does not offer added liability protection. For a married couple, some types of joint trusts may provide a layer of protection in some instances. As a general principle, a revocable trust is simply not a tool for broader liability protection. What can be done?
There are variety of approaches and tools that can be utilized to protect a client from liability. Some types of irrevocable trusts can be used to reduce or shield liability. Separate business entities such as an LLC or corporation are effective in some situations to provide liability protection. Additional measures can also be considered such as insurance and titling. Liability considerations are top priority concerns in some situations and the use of the right tools, and the right approach is vital.
In seeking to avoid probate, the use of beneficiary designations to “automatically” transfer accounts or other assets to an intended beneficiary can be a simple and useful approach. This is often an effective approach and is always a low-cost approach. These sorts of designations are most commonly used in connection with retirement accounts, other bank accounts, insurance policies and even interests in small companies. However, in many instances, simply utilizing beneficiary designations is not adequate to put into place desired planning and to assure the intended outcomes. Beneficiary designations often do not contemplate many unexpected scenarios, provide clarity with respect to heirs nor allow for any direction or limitations as to the use of assets. Frequently, a trust can be used to better address these many situations. However, even when a more comprehensive trust-oriented plan is in place, beneficiary designations can be used effectively to direct certain assets seamlessly into the trust. Ultimately, every individual and family situation is unique and requires careful consideration and use of all available estate planning tools.