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Do I Really Need A Bank Account for My Business?

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Many new entrepreneurs and founders question whether they really need to open a bank account solely for their new ventures. In short, the answer is a resounding yes. Here, we outline a few key reasons why setting up a separate business bank account can keep your company’s finances secure while making sure your personal assets are safe.

Why Keep Them Separated?

In deciding whether you need a bank account for your business, think about the reason why you would set up a business at all: To keep your personal and business identities separate for legal, financial, and taxation reasons. 

On a practical level, this means keeping your business and personal assets separate so that in the event someone sues your company, your personal assets will be shielded from a judgment. In the legal world, this separation between the business and the founder him or herself is referred to as “the corporate veil.”

When lawyers discuss “the corporate veil,” it’s easy to miss the real-world impact of this protection. Imagine that a third party sues your new entity and wins – let’s say it is a bank trying to collect on your company credit card. The bank may use the judicial process to collect that money in a variety of ways, from forcing you to transfer cash to it or by selling your assets in order to generate liquid funds. 

If your company does not have enough cash or assets to satisfy the full amount of the bank’s judgment, then the bank can – and likely will – turn to your personal assets. That is, the sheriff can show up to reclaim your car, put a lien on your home, or withdraw funds from your personal bank account.

Fortunately, there is a way to protect yourself from this nightmare scenario. This is where the corporate veil comes in. The law sets forth several ways to create a corporate veil to protect your business assets – for instance, making sure to follow corporate formalities in running your business. A critical way to create a protective corporate veil, however, is to keep your business and personal assets separate. Arguably, the most unambiguous way to do this is to create a separate account for your business funds.

This matters because a common way for parties to “pierce the corporate veil” is to demonstrate that companies are operating as though they are not, in fact, separate and distinct from the people who own and run them. If you use your personal checking account to cut business checks and deposit client funds into your personal account to pay down your personal bills, you will face an uphill battle in trying to argue that you and your business are, in fact, separate entities.

Keeping the Corporate Veil Intact

In general, business owners have the benefit of the corporate veil to protect their personal assets from business risks, unless there is a good reason to remove that protection. To ensure that you can keep that protection well intact, take the following steps:

  1. Set up a separate bank account for your company through your financial institution of choice.
  2. Commit to using that account ONLY for business purposes.
  3. Commit to using your personal bank accounts ONLY for your personal financial transactions.
  4. Only transfer money between your corporate and personal accounts if you are following the proper corporate formalities required for doing so. If you aren’t sure what these formalities are, consult your lawyer or accountant.
  5. Keep detailed records of all your business expenses, revenue, and recurring expenditures.
  6. If you are unsure of how to handle your business taxes vis a vis your personal ones, hire an accountant experienced in working with startups and small business owners.

Bookkeeping Benefits

Legal formalities aside, maintaining a separate account has numerous other benefits. Keeping separate accounts for personal and business items makes your accounting and bookkeeping practices simple and streamlined. Not only does it save you from parsing your various personal and business expenditures, but it also helps ensure you have included all of your deductible business purchases in your accounting system. If you don’t do this, it can be easy to miss many line items that can help you come tax time.

When you keep your business and personal transactions separate, you will have a clean record to present your preparer at the end of the year. Make sure that you keep your invoices and receipts should you need to furnish proof of particular expenditures.

How Do I Set Up A Business Bank Account?

Fortunately, it is relatively easy to set up a business bank account.

Gather your documentation.

At a minimum, you will need to provide your institution a copy of your filed Articles of Incorporation (for corporations) or Articles of Organization (for LLCs). You will also need to prove your IRS Employer Identification Number or EIN.

Watch out for hidden fees and costs.

When selecting a type of account to use, make sure you confirm whether there is an initial or ongoing minimum deposit requirement. Additionally, read the fine print on monthly fees and charges. When starting a new business, it is important not to be suddenly hit with unexpected fees or charges.

Ask about benefits.

Finally, make sure you ask your representative at your bank about any perks or features, like ways to automatically sort your deposits, how to set up online bill pay, and whether there are any rewards for opening a business credit card with that bank.

Contact Our Experienced Business Law Attorneys         

Starting a business is a thrilling endeavor. However, failing to abide by the proper legal and corporate formalities can land you in trouble. At Wilson Ratledge, we assist business founders in taking steps that keep their businesses – and their personal assets –secure and sound with an eye toward protecting them from avoidable legal pitfalls. For assistance setting up your business account, or for questions regarding your entity, contact one of our experienced North Carolina business attorneys today at 919-787-7711 or via our contact form below.

The Durable Power of Attorney

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What would you do if you were suddenly unable to make decisions regarding your real estate or finances? Who would step in to help manage your affairs if you needed help to do so? A power of attorney can help you navigate these challenges.

What is a Power of Attorney?

A power of attorney (POA) is a legal document that authorizes one person to act on behalf of another. An agent may have special or limited authority under the POA for a specific transaction, or broad authority to make decisions on multiple topics.

POAs are useful in the event of an illness or disability. An agent can pay bills, manage finances, and handle other specific business for the principal if the principal can no longer handle his or her financial affairs. However, this does not just apply to incapacity: You can also use a POA for temporary assistance if the principal will be out of the country or otherwise unavailable to make legal decisions for an extended period.

Specifically, a “durable” POA is a document that survives once the principal becomes incompetent or incapacitated. This is an important feature that may eliminate the need for lengthy delays and costly litigation later. If a POA is not durable, either by explicit language or other circumstances, the document terminates when the principal becomes incapacitated or mentally incompetent.

What Are the North Carolina Laws Governing the Durable Power of Attorney?

The North Carolina Uniform Power of Attorney Act is the governing law on POAs and includes definitions, agent duties, and information about when a POA is valid and effective. The law was updated in 2018.

The Old Law

The pre-2018 law did not define “incapacity” and failed to provide a clear set of criteria for how – and when – a principal would be deemed incompetent under the law. As such, a principal’s capacity (or lack thereof) was often left up to an affidavit that frequently ended in litigation.

Also, under the old law, a POA was presumed not durable, unless the document specifically stated otherwise through language like, “this POA shall not be affected by my subsequent incompetence or incapacity.” Further, the old law stated that a durable POA was only valid if it was registered in the relevant county’s register of deeds office before the principal’s incapacity set in.

The New Law

The new law, effective as of January 1, 2018, streamlined the POA requirements and defined incapacity as:

“The inability of an individual to manage property or business affairs because the individual has any of the following statuses:

  1. An impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance.
  2. Is missing, detained, including incarcerated in a penal system, or outside the United States and unable to return.”

Also, a POA is now automatically considered durable. As such, a principal who wants his or her agent’s authority to terminate upon the onset of incapacity must explicitly write this into the document. So, in other words, your POA is now durable, in essence, by default. Unless the POA specifically states incapacity as the trigger for termination, the POA does not automatically terminate upon the principal’s incapacity.

The new law also identifies the appropriate process for determining capacity. If the principal conditions the effective date of the POA on incapacity and does not authorize a person to make the status determination, two individuals from the medical field or one appropriate government official will make the call.

How Does the Change in the North Carolina POA Law Affect My POA?

Although the new law jettisoned the recording requirement for POAs and now durable POAs need not be recorded with the register of deeds, the recording requirement nonetheless still applies to POAs executed before January 1, 2018. If your pre-January 1, 2018, POA is not recorded and the principal has since been deemed incompetent, your POA is likely invalid.

As such, make sure you check your document to see what law applies – the old or the new. A seemingly insignificant detail can determine whether an agent had the authority to act on the principal’s behalf – an issue that can give rise to contentious litigation.

How Do I Know When My Loved Ones Needs a POA?

A POA gives an individual the ability to make legal decisions on your behalf. If you foresee any situation where you may be unable to make a legal decision, proactively executing a POA giving someone you trust the authority to make these decisions for you can save your family from the stress of figuring it out later.

You should have a POA when you anticipate an inability to make decisions on your own. It is common to execute a POA in retirement or when a person is facing a long-term medical crisis that will impact one’s decision-making ability. However, POAs are also useful for individuals who travel abroad or may otherwise be unavailable for an extended time.

An agent can help make decisions that are in your best interest. So, even if you just need some help managing your obligations, a POA may be a good option since an agent can assist you in making decisions that are in your best interest.

Remember that a POA is only valid if the principal is competent when the document is executed, so be proactive. If you wait to prepare a POA until something happens where you need one, it could be too late.

Contact Our Experienced Estate Planning Attorneys     

At Wilson Ratledge, we assist our clients in preparing and executing documents that help them remain financially secure and sound. We understand that helping a family member through the onset of incapacity is trying and emotional and are here to help you navigate the challenges that arise. For assistance, contact one of our experienced North Carolina estate planning attorneys today at 919-787-7711 or via our contact form below. We look forward to serving you.

How – And Why – To Keep Your Investors in the Loop

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In the excitement of obtaining initial financing, many founders forget about their investors the second the first check clears. Nonetheless, your investors have a vested interest in your business and expect a return on their contribution of cash, time, expertise, and business connections. As such, keeping them informed can help you cultivate a positive, long-term business relationship. Conversely, keeping them in the dark means sowing the seeds of discontentment.

In short, your investors can be the key to business growth – but keeping them in the loop is critical to establishing a symbiotic business relationship that will see your business through major stages of financing, growth, and development.

48 Hours After Closing

Forging a positive relationship with your investors starts immediately after the deal closes. While it may be tempting to immediately announce your first round of financing, hire new team members, sign a lease, or otherwise plow forward in using your new funds, hold off until the money is in the bank and you have connected with your investors. Jumping the gun before the deal is done may make you appear impulsive and mean losing your investors’ trust before your relationship officially commences.

Once the deal is done, remain focused on your stated goals and intentions and avoid moving too far afield of what you and your investors initially discussed. Doing so will ensure that your investors know you will use their money wisely and for the reasons you initially professed needing it.

Periodic Updates

Once the check has cleared and you start using your new funds, commit to keeping your investors updated on a regular basis. A healthy practice is to create an email template that will propagate each month or quarter, providing updates on new deals, customers, revenue goals, and key performance indicators.

Sending updates on a monthly or quarterly basis instills confidence in your investors through predictability and spares them the need to ping you for updates. Not to mention, if they receive regular updates, they will know they’ll hear from you – meaning they have little reason to worry or fear that you are not using their investment wisely. It also helps you build stronger bonds with them: Cover all your bases in an email so that when you have an actual conversation or meeting, you can delve deeper on certain points like brainstorming long-term growth goals.

Here are a few items you may consider including in your monthly or quarterly update.

Statement of Appreciation

Your relationship with your investors is a social engagement and as such, start your correspondence by showing your appreciation for their contributions to your business. Before you dive into metrics, highlights, and KPIs, take a moment to express gratitude for connections your investors helped you make, provide introductions to other industry connections, and offer them feedback or assistance.

Asks

Commit to long-term business growth beyond the investors’ initial capital contributions by drawing upon their industry knowledge and connections. Ask them to help you connect with other business owners, employment candidates, or partner organizations. Additionally, share your recurring business challenges and ask them to offer their feedback, advice, or assistance.

Do not be afraid to take advantage of your investors’ connections in your industry. Although you do not want to abuse this privilege, keep in mind that if your business fails, your investors will be more likely to help you if you can show that you attempted to make the most of their investment and the opportunities they afforded you.

KPIs and Key Metrics

Your investors will want to know how their investments are performing. Offer solid figures and be transparent in sharing how your business is faring. In this section, discuss your cash flow, revenue goals and benchmarks, and long-term growth goals.

Keep this section short and easy to digest: Use a few bullet points and provide supporting data to show improvement in your metrics.

Highlights and Milestones

Share what is going well in your business, not just financially, but in terms of new opportunities and prospects, team growth, leadership opportunities, and your business’ place in the market. Ideally, these milestones will match the goals you set forth in your initial pitch deck during your fundraising round. If you did not include any, create benchmarks and back them up with data.

Low Points

In the spirit of being transparent with your investors, don’t just share the positives: Also reveal the challenges your business is facing, any losses you have sustained, and what you hope to improve in the coming month or quarter.

Your investors are not outsiders: They are your business partners. They may be the first to help you when something goes wrong. Sending out updates builds trust with them and lets them in. It also increases the odds that they will help you when you need it. If you keep them in the dark, they will expect the worse, losing confidence in you and your company.

Expectations

Share what you are looking forward to, such as conferences, plans, goals, and team updates. Additionally, give your investors a forecast of how they may be able to help you in the coming month or quarter.

Stay Organized So That They Do Not Have To.

Archive your correspondence in a separate, shared folder. Your investors are busy people, so they will appreciate having a clear paper trail that saves them from digging through their inboxes to find old messages. In each email you send, include a link to the folder so that they can refer to previous messages as needed.

Informed investors are generally happier investors, and staying organized and proactive will make their jobs far easier. As such, they will be more likely to help you in the future.

Experienced Business Formation Attorneys

Wilson Ratledge assists clients in various aspects of business planning. There are numerous considerations to evaluate before making significant decisions for your business, especially when it comes to pursuing financing and working with investors. Our experienced business law attorneys can discuss your options and help you decide how to manage your business affairs. Contact one of our attorneys today at 919-787-7711.

Joint Bank Accounts: What You Should Know

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A common useful estate planning tool is a joint account, a situation whereby family members jointly hold an account with a “right of survivorship.” This means that when one joint owner passes, the other owner automatically takes ownership of the account funds. Under North Carolina law, these funds generally pass outside of the decedent’s estate. As such, joint accounts can be particularly useful for individuals who hope to help their heirs sidestep the probate process.

Still, the use of joint accounts warrants caution: Family disputes can easily erupt over the use and abuse of jointly held accounts.

A Common Dispute: Ownership of Funds

Although two (or more) individuals can jointly own an account, it does not follow that they jointly own the funds within the account. While this may seem like mincing words, it can seriously impact the proper use of account funds: A court may look askance at certain account transactions if challenged and as such, it is vital to understand who owns what funds in an account.

In these cases, context is key: In determining the ownership of funds within a joint bank account, courts consider factors like:

·  Who deposited funds into the account, and when;

·  The source of the funds (gifts, income, etc.); and

·  The intent of the person who deposited the funds, i.e., did that person intend the funds to be shared, or did he or she deposit a gift check or income for safekeeping within the account?

In some cases, funds deposited into a joint account are deemed shared, for instance, when the account holders are married and the funds comprise shared income. However, in other cases, funds may constitute the depositor’s sole property, for example, if an adult child is helping an elderly mother manage her finances. In the latter case, the mother would be deemed the owner of the funds, even though she shares the account with her adult child.

When Abuse Arises

Unfortunately, issues of ownership are often muddy and can lead to legal disputes.

Consider the example of an aging parent who asks his adult child for help managing his finances and makes her a joint owner on his bank account. Each month, the father’s pension and social security income is deposited into the account, and the daughter uses the funds to pay his monthly bills. However, as the months pass, the daughter starts to add a few extra items for herself to her father’s shopping list and even writes checks to herself from the joint account, erroneously believing that because she is a joint owner named on the account, she has the right to spend her father’s money.

Should the family end up questioning the father’s mental capacity one day, the sister’s conduct may be called into question: Did the father authorize these financial transactions? If so, how much? Did he even know about it? Did he intend for the funds to pass to his daughter by right of survivorship after his death? These types of questions leave family members in the difficult position of evaluating a sibling or parent’s conduct, which can often lead to familial strife and even legal action.

In considering how a joint account has been managed, courts will generally make a fact-intensive inquiry into who owned the funds, whether the funds were used in both account holders’ best interest, and whether the account owner approved of the use of the funds. These questions are particularly difficult to answer when one owner suffers from diminished mental capacity and can strain familial relationships.

Experienced Estate Planning Attorneys

Wilson Ratledge assists clients in various aspects of estate planning. There are numerous considerations to evaluate before making significant financial decisions, like adding a family member to a joint bank account. Our experienced estate planning attorneys can discuss your options and help you decide how to best manage your financial affairs. Contact one of our attorneys today at 919-787-7711 or via our contact form below.

How A Special Needs Trust Can Help Your Family

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special needs trust

Families with special needs members have more options today than ever before. As caretakers age and special needs family members reach adulthood, it’s critical to plan for the well being of all family members. Fortunately, you have many options at your disposal.

Your loved one with special needs may qualify for important government benefits. While it’s important to set funds aside for your loved one’s care, it’s also important to structure the funds in a way that your loved one doesn’t lose eligibility for government benefits.

U.S. and North Carolina law allow you to do just that. If you have a special needs family member, you can create a special needs trust that can help your loved one get the help that they need while they remain eligible for government assistance programs. Here’s how a special needs trust can help your family:

What is a special needs trust?

A special needs trust is when you set property aside in a separate legal entity. One person manages the assets in the trust for someone else’s benefit. The funds are the property of the trust, and the trustee uses them for the good of the beneficiary. The person who manages the assets in the trust is called the trustee. The person who receives distributions of property from the trust is called the beneficiary.

In the case of a special needs trust, the trust exists to help someone who lacks the ability to manage their own finances. Because of a physical or mental disability, the beneficiary needs help providing for their basic needs and managing their finances. A special needs trust is the primary way that families arrange finances to care for someone who is unable to care for themselves.

What can a special needs trust cover?

You can tailor a special needs trust to meet the needs of the beneficiary. The trust can provide for the needs of daily living, or it can provide for supplemental care like vacations, education, vocational training, recreation and more. You may create the trust to be very generic or specific depending on the needs of your loved one.

How do you structure a special needs trust to keep the beneficiary eligible for government benefits?

One of the primary purposes of a special needs trust is to ensure that your loved one remains eligible for government assistance. When you have a loved one who has special needs, there’s a good chance that they qualify for government assistance programs like Medicaid, housing or cash benefits. Medicaid can be a welcome relief for a person who may have unique and extensive medical care needs. When you set up your trust, you want to make sure that the trust doesn’t impact their eligibility for benefits.

If a person receives assets directly in their name, these assets count against them when the government determines eligibility for assistance programs. The government requires them to spend their own funds first before they’re eligible for public help. By placing the funds in a separate trust with a separate legal entity, the funds are not the property of the beneficiary. They don’t count against the beneficiary when the government looks at their assets in order to determine eligibility for assistance programs. A special needs trust is an important way that families can make sure that what they set aside for their loved ones truly goes to help their loved one and enhance their quality of life.

As you prepare the special needs trust, it’s important to pay attention to the language that you use. The trust should state that it provides supplemental care beyond what government resources already provide. You should state that the trust is not intended to provide basic support. Your trust should reference relevant portions of U.S. law that are required to protect government benefits and make your intentions clear.

What if I don’t think my loved one needs government benefits?

Even if you don’t think that your loved one needs government benefits, you never know what might happen in the future. It’s likely a good idea to structure the trust in a way that leaves the door open if they need government help in the future. Special needs trusts are an important and common wealth-management tool for people of all economic groups. An experienced special needs trust attorney can help you examine your situation to determine the best path for your family.

Who can serve as trustee of a special needs trust?

Family members can serve as trustees, or you can work with a professional third party to manage the trust. There are pros and cons to each choice. A special needs trust is often a labor-intensive asset to manage. Family members may quickly tire of all of the work involved in managing the trust. On the other hand, a professional third party may charge fees for their services that can quickly add up.

There may be restrictions on who can serve as a trustee depending on who stands to receive the trust’s funds when the beneficiary dies. If the trustees are the beneficiaries, it might create a conflict of interest. In addition to these options, you might join a pooled trust where you join with other families to pool your resources under one management company. If you use a pooled trust, you still have your separate account, but you share management expenses and fees.

Can the beneficiary fund the trust with their own property?

If the beneficiary plans to fund the trust with their own property, there are a few special things to be aware of. Yes, it’s possible for the beneficiary to fund the trust with their own resources. In most cases, a self-funded trust must provide for reimbursing the government for Medicaid expenditures when the beneficiary dies.

When the beneficiary dies, the remaining trust property goes to the government to reimburse them for their medical expenditures through Medicaid coverage. In addition to the Medicaid reimbursement requirement, a self-settled trust is only an option when the beneficiary is disabled under the government definition of disabled.

How long does a special needs trust last?

A special needs trust typically lasts until the beneficiary dies or the funds run out. You can arrange for additional transfers of property to the trust in a way that doesn’t hurt your loved one’s eligibility for government benefits.

You can structure the trust to provide whatever your loved one might need including vocational training, recreation and vacations, communication equipment, accountants, attorneys and animal service. An experienced estate planning attorney can help you create a trust that meets your loved one’s needs and gives you the peace of mind to know that your loved one is cared for in the years to come.

Financing Your New Business Venture

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Last month, we detailed the entity types you may select for your new business venture. Now, we turn our attention to financing. Once you have selected your entity type, officially organized your new entity, and started gaining customers, how are you going to fund your new venture?

There are two primary categories of funding: through debt, and through equity. In order to pursue the option that is best for your business, it is important to carefully consider the pros and cons of each.

Financing through Equity

Equity financing involves selling an investor a share of your business in exchange for money, connections, or industry knowledge. The two primary types of equity financing are angel investors and venture capital firms.

In order to select the option that is best for your particular business goals, do your homework: There is no easy way to score financing, and seeking the support of an angel investor or venture capital firm is not a get-rich-quick scheme. There are strings attached in both options, so carefully consider whether – and how – you want to cede control of your day-to-day business operations to investors.

In particular, there are three considerations you should weigh when deciding to finance your business by offering equity to an investor:

  • What is the investor’s industry? In other words, what are the types of companies in which this investor typically invests?
  • Based on their investment portfolios, how much cash are these investors likely to give you?
  • What investment strategies will the investors employ for companies like yours?

Carefully considering the answers to these questions will help you ensure that you are choosing a partner who is suited to help your business grow and thrive.

Angel Investors

If you have ever seen the hit show Shark Tank, you are likely familiar with how angel investors work. However, contrary to what popular media may suggest, this financing scheme is rare and patently unsuitable for many businesses.

In short, an angel investor is a wealthy individual, entity, or network that supports new businesses by investing cash, providing connections with other investors or experts in the industry, or by sharing technical knowledge. As such, angels provide value beyond the initial financing.

However, it is a two-way street: In exchange for their investment, angels will seek a share in your business. In negotiating an amount with your investor, be wary of offering too much control in exchange for too small an investment. While it may be tempting to accept a large amount of cash upfront, giving up a large share of your fledgling business means losing control – something a new business owner may want to keep.

Venture Capital

People tend to confuse and conflate angels and venture capital, but in reality, the two financing schemes are distinct: While angels will invest in young companies, venture capital firms are typically hesitant to give cash to new ventures or lifestyle companies without immediate growth potential.

As with angel investors, venture capital funds will seek a share in your business in exchange for their investment of cash, industry knowledge, and network connections. In many cases, the firm will place someone on your board and will demand preferred stock. For this reason, many smaller companies or single-member LLCs are generally not attractive to venture capital firms.

Financing through Debt

Debt may sound like a dreaded four-letter word, but it is a legitimate and viable way to fund a new business – so long as you have a solid, short-term payoff plan. Funding a business through debt involves seeking loans, lines of credit, or convertible debt to use as seed money. For a lifestyle business or a founder who opts not to pursue outside funding, debt financing can prove a quick way to get some cash upfront.

There are several types of loans available to businesses, from simple business bank loans to seeking a loan from a colleague or family member. Some founders use low-interest loans from the Small Business Administration (SBA Loans) to fund their new entities. Also, founders who need just a small amount of startup capital can take out a very small loan – an option that is not available with VC funding, which generally occurs on a much larger scale. If you would like to learn more about how to apply for an SBA loan, check out the SBA website.

Considerations in Financing Your Entity:

  • What type of entity have you set up? Remember, if you are an LLC, you are unlikely to attract angel investors or VC funds.
  • How do you plan to pay your employees? If you are funding your enterprise through equity, consider that this will affect the way you compensate your co-founders and employees. Conversely, if you are funding through debt or you are bootstrapping your entity, you will have more leeway in determining how to use your capital.
  • How do you plan to use the funding? Are you more interested in quick cash to purchase inventory? Or, are you diving into unfamiliar territory and would benefit from the industry knowledge and connections an angel investor or VC firm would offer you?
  • How much control do you want to keep? Many founders are protective of their new businesses. Are you setting up a family business that you want to run and control yourself? Or, are you looking to quickly scale and eventually exit?

Choosing the Option that is Right for Your Business

No matter which option you pursue, remember that there is no quick solution when it comes to building a successful business. Do your homework, understand the territory, and be honest about your growth goals. At Wilson Ratledge, we assist our clients in pursuing the financing scheme that is best for their business goals. Contact one of our experienced North Carolina startup attorneys today at 919-787-7711 or via our contact form below.