Buy-Sell Agreements: The Importance Of Transition Planning

The 24-year old actor James Dean was the iconic Rebel Without a Cause, the image of teenage angst, who already had three blockbuster movies under his belt before a misplaced 1950 Ford Tudor blocked the intersection on US Route 466 that would serve as a premature end to the meteoric rise of the young star. It is reported that “Humphrey Bogart, who also knew a thing or two about image making, once said: ‘Dean died at just the right time. He left behind a legend. If he had lived, he’d never have been able to live up to his publicity.’” Sometimes in the entertainment world death is a good career move.
And we tend to view buy-sell agreements the same way. The best “move” the participants can make in triggering its fulfillment is for one of the participants to die.
Fund the event with life insurance that provides tax-free dollars that are used to purchase the inherited interest from the estate (with a step-up in basis, no less) and everyone goes happily on their way to a new and more cash-flushed existence.

Consequently the death of an owner is the contingency on which we focus too exclusively when planning.

The fact is that a business owner usually doesn’t die. They often leave the business for one reason or another that initiates a buy-out that usually takes the form of a down payment (maybe) and an installment sale for an agreed number of years at an agreed interest rate.
Even then life insurance is important.
Consider two instances:
  1. The remaining owners buy out a departing partner under an agreement funded with life insurance. The coverage on the departing partner can be kept in force to provide remaining owners funds to pay-off the loan balance should the seller die during its term. It also relieves the departing partner of any concern whether or not the balance will be paid to his family should he die. This arrangement may be cleaner if the policy is transferred back to the insured and a collateral assignment is given in the amount of the loan balance. If so, tax issues and premium-payment arrangements would need to be ironed out.
  2. A younger key person buys out a retiring owner-employer. The retiring seller wants to be sure of payment in the event of the death of the key person-buyer during the term of the loan. Carriers do not recognize a creditor’s insurable interest in a debtor, so they won’t allow the seller to purchase coverage on the borrower. However, the borrower can buy coverage, justifying it as personal insurance, and give a collateral assignment for the balance and term of the loan.
We recently assisted in a case similar to situation #2. We advised with regard to structuring the personally-owned coverage on the purchaser. We advised concerning the drafting of the collateral assignment. We laid a good predicate with the carrier to assure they understood the case – and then the selling owner placed the business through another agent and, consequently, another general agency. As my Mother used to say, “No good deed goes unpunished.” I say simply, “A pox on his house!”
Every business you represent should have in place an updated documented transition plan. If one doesn’t, then tell the owners they go to bed every night unsure of who they will be in business with the next morning! Then call us to assist you in all matters of their buy-sell planning and funding. Remember, we will get on the phone with you and talk directly to both your clients and their advisors if you think it beneficial.