Estate & succession
The documents every business owner is told to have and rarely does — drafted with the company in view rather than as a standalone form.
A will that does not account for the business is a partial plan. If the operating agreement says one thing about what happens to a member’s interest on death and the will says another, the operating agreement usually wins, and the family finds that out at the worst possible moment.
This work sits deliberately alongside the business practice, because for an owner the estate question and the succession question are the same question.
What the engagement covers
Wills
G.S. 31-3.3 requires the testator to sign the will, or direct another to sign it in the testator's presence, then to sign or acknowledge before two competent witnesses, who each sign in the testator's presence. A self-proving affidavit avoids tracing them later. A surviving spouse may elect under G.S. 30-3.1 a percentage of total net assets, rising with the length of the marriage, less what already passes to that spouse.
Powers of attorney
Under Chapter 32C a financial power of attorney is durable unless the instrument expressly says it ends on the principal's incapacity. Some authority must still be granted in terms: making a gift, changing a beneficiary designation, creating or changing rights of survivorship, delegating the agent's authority. A general grant of power does not carry those acts, and an agent who attempts them without an express grant acts outside the document.
Healthcare directives
A health care power of attorney needs two witnesses and a notary's acknowledgement; a declaration for a natural death needs two witnesses and proof before a notary, clerk or assistant clerk of superior court. Neither counts a witness related within the third degree to the principal or spouse, anyone expecting to inherit or holding an estate claim, or the attending physician or paid staff of that physician or the facility.
Business succession planning
Ownership and management are separate questions, and one answer does not settle the other. A professional practice makes that concrete: under G.S. 55B-6 shares in a professional corporation may generally be issued only to a licensee, and an issuance or transfer in violation of the section is void, so an unlicensed spouse or child cannot simply inherit the practice. The plan must say what happens instead.
Buy–sell funding and triggers
Where the company owns the policy, the Supreme Court held in Connelly v. United States that the proceeds increase the company's value for estate tax and the redemption obligation does not offset them. That makes the choice between a redemption and a cross-purchase a tax decision as much as a funding one. Under section 2703 a stated price is disregarded for estate tax valuation unless three tests are met.
Coordination with the operating agreement
Chapter 57D sets the default: on a member's death, the estate automatically becomes an economic interest owner, entitled to distributions but not to vote or manage. A will can leave the company to a child and still leave that child outside the room. Fixing that means amending the operating agreement rather than the will, and the agreement's own amendment clause decides who has to approve the change.
Common questions
I have a will already. Is that enough?
Possibly not, if you own a business. A will and an operating agreement can contradict each other, and the operating agreement usually controls what happens to the membership interest. The two need to be read together.
What is a buy–sell agreement for?
It sets what happens to an owner’s interest on death, disability, divorce or departure — who buys, at what price, and where the funding comes from. Without one, the answer is decided later by people with conflicting interests.
When should succession planning start?
Earlier than most owners do it. It is far cheaper as planning than as a dispute, and the useful version takes months rather than weeks.
Do you handle probate?
The firm handles estate documents and succession planning. Where a contested estate administration is involved, it brings in counsel who does that work and coordinates.
Business owners, and anyone whose estate includes an operating company, a professional practice or a partnership interest.
Scoped and fixed.
A scoped call on what this actually needs, before anything is drafted.
Book a consultation or call (704) 222-4752