Will - Fergal McManus Solicitor, Chartered Tax Adviser and Notary Public
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The Will of a business owner needs to be different to that of his or her employed neighbour. Firstly, having no Will, is likely to spell the end of your business after your death as your personal representatives will not have power to run the business as a going concern. For a parent, having no Will results in their spouse succeeding to 2/3 of the business and their children 1/3 between them. Where there are minor children this causes massive difficulties should the business need to be sold as minor children don’t have legal capacity to participate in complex business sale agreements. Assuming you have a Will, there are obvious pitfalls which need to be avoided e.g. if you trade as a company then your Will must address what happens your shares in that company otherwise these shares may end up being distributed in a manner you did not intend. Equally the clause must envisage that you shareholdings may fluctuate by creation of a holding company, subsidiaries, merger etc and the drafting must be broad enough to ensure that you do not need to update your Will every time you do anything with the ownership structure of your company. The Succession Act, 1965 generally provides powers for executors to gather in a Deceased person’s assets, liquidate them and distribute them to beneficiaries named under the Will. The business owner’s Will needs to confer express powers on their executors to continue the run the business as a going concern and this may require such executors to do things that are not otherwise allowed to do under the Succession Act, such as borrowing funds e.g. extending he business overdraft or some action that is required to continue the trade. The choice of executors is really important and giving them guidance on the type of manager who might best be able to step into the shoes of the Deceased owner.