This document discusses common business problems that arise in estate administration, including family feuds over control of family businesses, failure to adequately plan for transferring ownership between generations, and unclear records of business ownership. It notes that without proper planning, family businesses often end up being sold to outside parties in order to raise cash to pay estate taxes. The document recommends establishing buy-sell agreements that resolve disputes over business valuation and control in advance, maintaining clear corporate records of ownership, and showing consistent profits to justify a high valuation if the business needs to be sold.

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Business Problems In Estate Administration
DuPage County Bar Association Seminar
March 10, 2015
I. Family Feuds
 74% or more of companies in the US are family owned and managed
 25% of these go out of family control every generation
 Most spouses and children are not competent to run the family company: they
want cash, NOW!
II. Failure To Plan
 Wrigley Co.: small now since 1977 deaths without trusts to cover growth in value
of company against income taxes, followed by 1999 death when younger wife
could claim Wisconsin community property – and estate subject to Wisconsin
income tax rate, then twice that of Illinois
 The company’s cash flow is usually the only asset available: most buy-sell
agreements and estate plans lack “Key Man” insurance or other sources of funds
except a sale
 This means a sale to insiders or outsiders to obtain funds: and a company run to
save taxes may have no profits to justify high business valuation for purchase
III. Who Owns This Place?
 Private Companies Keep Their Own Share Or Membership Records: Badly
 Due Diligence Counsel will require a full “corporate book” going back to the
entity’s founding, with all share or interest transactions, debts, other contracts
affecting control (like joint ventures). What does your book look like?
IV. Who Has Authority To Manage The Company, And To Make Contracts?
 Corporation: only Presidents (probably dead now) have apparent authority to
contract: otherwise Board of Directors. Cf. Fritsche et. al. v. LaPlante et. al. No.
2-09-0329, Ill. App. 2 Dist. Ap. 5, 2010 (revoked Power of Attorney and property
transfer actions authorized and attested to by family member who was corporate
Secretary, not President). Incumbent actions may be later contested as unfair and
wrongful to other owners/heirs, cf. In Re Bachrach Clothing, Inc., 480 B.R. 820,

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US Bk Ct. N.D. Ill. Oct. 10, 2012 (BK Court may resolve fraudulent transfer
claims.) And Cf. 805 ILCS 5/9.10, Board authority to make distributions only if
does not render organization insolvent.
 Limited Liability Company: Managers in manager-managed, Members in
Member-Managed LLC’s have authority to bind entity in contract with third
parties. Action may be wrongful.
 Partnership/Limited Partnership: Any general partner can bind entity, LP no
authority except may replace GP by terms of agreement
 Trusts: Trustee with remainder or other distribution interest may be removed for
conflict of interest in trustee and recipient roles, cf. Faville v. Burns, 2011 IL App
(1st) 110335
V. Dispute Resolution Options
 Buy Out The Objectors: see Noonan v. Harrington, U.S.D.C. Il. 2010, 740
F.Supp.2d 970 (Sale price to minority owners incorporated all future value, no
right to continued dividends case could proceed.). Note dissenter’s rights section
11.70 of BCA, means dissenters may be entitled to fair value, not fair market
value, if dissent from fundamental corporate action
 Distribute Something Early: see Estate of Boyar, 2012 IL App (1st) 111013,
heirs who took some personalty from executor’s distribution could not then
contest the will, based on doctrine of election
 Try Mediation: Unlike arbitration, this isn’t binding, but a trusted mediator may
be able to get the parties to recognize the value of family relations over money
amounts less than the cost of litigation
 Get professional management, to maximize EBITDA for sale: The Turnaround
Management has more than 6,000 members, the Midwest Business Brokers and
Intermediaries has more than 240: there are experts who can help maximize
returns and minimize estate and income taxes on sale or intra-family transfer of
business interests
VI. Current Client Checklist
 Get a buy-sell agreement in place that resolves valuation and control disputes in
advance, and fund it with “key man” insurance if possible, to buy out decedent’s
share so remainder of the family can continue the business
 Check the corporate book and financial records so the property can be sold
 “Clear the underbrush” of family members not working in the business, so long-
running minority interest disputes can be avoided
 Show a healthy profit on the company’s annual tax returns, so the sales price will
be healthy if sale is needed: estate taxes are much higher than income tax, and
planning options can reduce both types of tax.