How to Put Business Interests Into a Trust?

When forming your business, you may choose to structure it as a sole proprietorship, partnership, limited liability company (LLC), or corporation. Each type of structure offers different levels of asset protection and affects how much you pay in taxes. But owners can exert further control over their business—both while alive and after they pass away—by placing business interests in a trust.

Typically associated with estate planning, trusts can hold business interests. Except for a sole proprietorship, most types of business interests can be transferred to a trust if the transfer is permitted by the operating agreement. In the case of a sole proprietorship, which is not a separate legal entity, you may simply transfer the assets used for the business into the trust. Holding business interests in a trust can provide benefits for you and your heirs, but before creating a business trust, the consequences should be considered.

Reasons to Hold a Business in Trust

A trust is a legal entity that holds assets for and transfers them to beneficiaries. Although not a business entity, a trust can hold business assets, such as real estate and property. Ownership interests in a business, which are considered personal property, can be held in a trust, too.

Indeed, business ownership interests are often among an individual’s most valuable assets. Like other assets, they must be carefully managed and safeguarded. In addition, plans should be in place to avoid disruptions in the business’s operations when the current owner departs the business.

These goals—and more—can be achieved by placing a business in a trust. When a trust holds a business, it can provide the following advantages:

●        The business interests are not subject to probate upon the owner’s death

●        Estate taxes can be reduced or eliminated

●        Trusts are not public and therefore can maintain a business’s privacy

●        Business assets are separated from personal assets, providing more protection from creditors’ claims

●        It allows for succession planning in the event of incapacity or death by having beneficiaries inherit business interests without interrupting operations

●        It provides flexibility due to many types of trust structures

Placing a Company in a Trust

Transferring assets such as ownership interests to a trust is commonly known as funding a trust. Once an asset is transferred to a trust, that asset is the legal property of the trust, not of the person (i.e., the grantor or settlor) who creates and funds the trust.

The assets held in trust are managed by a trustee—an individual or company named by the grantor. They are managed for the benefit of the trust’s beneficiaries in accordance with the wishes of the grantor and any specific rules that apply to the type of trust created.

A business owner can act as the trustee of the trust and be its beneficiary, although state law may not allow the same person to be the sole trustee and sole beneficiary. This can be avoided by naming a co-trustee and co-beneficiary (or beneficiaries).

Putting business interests into a trust can be done at formation or after the company is an established entity by following these steps:

●        With the help of an attorney, draft trust documents to set up the trust. This includes choosing a name for the trust, identifying beneficiaries, selecting a trustee, and determining the trust’s rules.

●        If forming a new business, issue the stock certificates (corporation) or membership interests (LLC or partnership) in the name of the trust.

●        If transferring membership interests of an existing LLC or partnership to a trust, a document of transfer—called an assignment of interest—is required.

●        If transferring stock certificates to a trust, an assignment of stock agreement or a similar contract is needed.

As mentioned, sole proprietorships do not involve ownership interests, because there is no legal separation between the owner and the business. While a sole proprietor cannot transfer business interests to a trust, they can transfer the assets that make up their business, such as bank accounts and office equipment.

Before Putting Business Interests in a Trust                   

Setting up a trust and funding it with business interests is not overly complicated. However, anyone who is considering putting business interests into a trust should keep these potential complications in mind:

●        The LLC, partnership, or corporation may have specific terms and conditions established by contract at its formation or in its governing documents for transferring business interests to a trust, such as a majority or unanimous vote of the other members or owners.

●        The business might have rules in its operating or shareholder agreement that prohibit a trust from holding ownership interests.

●        Placing interests in a trust could be a triggering event in a buy-sell agreement.

●        Costs related to trust set up and administration could be high.

●        Business interests may lose marketability when placed in a trust.

●        Depending on the type of trust, the transfer could dilute ownership interests or lead to unintended tax consequences.

●        Funding a trust with business interests could draw the attention of the Internal Revenue Service as an “abusive” trust scheme if it is used to avoid taxes.

●        Setting up a business interest trust requires the trustee to act in the best interest of the beneficiaries (fiduciary duty), which could establish legal duties different from those applicable to owners of the business entity.

Numerous trust options provide flexibility, but different types of trusts have unique implications and requirements that must be considered, not only for the current business owner, but also for their heirs down the road.

Transfer Your Business Interests with Help from an Attorney

Creating a trust to hold business interests can enable you to maintain control over the business and provide protection for the company you worked so hard to build, as well as increase your peace of mind about the business’s future. The consequences of transferring your business interests to a trust may vary depending on the type of trust, so some business trusts may be more beneficial to you and your heirs than others.

The pros and cons of a business trust should be discussed with an attorney along with the outcomes you want to achieve from a trust. During an initial strategy session, you can consult our attorneys about your situation and how a trust can be used to meet your business and estate planning goals.

If you are interested in funding a trust with a business interest, contact our office at 678-855-6002 to schedule an appointment and discuss your options.

Key Takeaways

• Business interests—including ownership in an LLC, corporation, or partnership—can often be transferred to a trust, subject to the business's governing documents and applicable law.

• Holding business interests in a trust may help streamline business succession, avoid probate for those interests, maintain privacy, and support broader estate planning goals.

• The process of transferring business interests into a trust is known as funding the trust and typically requires legal documentation to complete the transfer properly.

• Business owners should review operating agreements, shareholder agreements, partnership agreements, and buy-sell agreements before transferring ownership interests to a trust.

• Different types of trusts have different legal, tax, and administrative consequences, making individualized planning essential.

• Business succession planning should be coordinated with your overall estate plan to help protect your business, family, and long-term legacy.

• Working with an experienced estate planning attorney can help ensure the transfer of business interests is completed correctly and aligns with your business objectives.

Frequently Asked Questions (FAQs)

Can you put a business into a trust?

Yes. In many cases, ownership interests in a business—such as an LLC, corporation, or partnership—can be transferred to a trust, provided the transfer is permitted by the business's governing documents and applicable law. Sole proprietorships generally involve transferring the business assets rather than ownership interests because the business is not a separate legal entity.

Why would I put my business into a trust?

Holding business interests in a trust may help avoid probate, simplify business succession, maintain privacy, provide continuity if you become incapacitated, and support your overall estate planning strategy. The benefits depend on your business structure, the type of trust used, and your individual goals.

Can I put my LLC into a trust?

Often, yes. Membership interests in an LLC can frequently be transferred to a trust if allowed under the operating agreement and applicable law. Some LLC operating agreements include restrictions or approval requirements that must be satisfied before ownership interests can be transferred.

Can corporate stock be transferred to a trust?

Yes. Shares of stock in a corporation can often be transferred to a trust through the appropriate assignment documents and updates to the company's ownership records. Shareholder agreements should be reviewed before making any transfer.

What is funding a trust?

Funding a trust is the process of transferring ownership of assets into the trust. For business owners, this may include assigning LLC membership interests, partnership interests, corporate stock, or other business-related assets to the trust.

Does putting a business into a trust avoid probate?

In many situations, business interests that are properly titled in the name of a trust can avoid probate. However, probate avoidance depends on how the trust is structured, whether it has been properly funded, and the laws of the applicable jurisdiction.

Can I still control my business if it's in a trust?

In many cases, yes. Depending on the type of trust and how it is structured, business owners may continue managing their business during their lifetime. The level of control varies based on the trust terms and your estate planning objectives.

Should I transfer my business into a revocable or irrevocable trust?

The appropriate trust depends on your goals. Revocable and irrevocable trusts offer different advantages related to control, asset protection, taxes, and business succession. An estate planning attorney can help determine which option best aligns with your circumstances.

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