What about the impact a standard cross option agreement has on someone’s Estate?
If you or a business partner dies their share will pass to their spouse or Beneficiaries through their Will. This is now deemed to be part of their Estate. Whilst this share is held and the business continues trading, then the assets could be exempt from IHT, assuming they qualify for Business Property Relief (BPR). Once the Cross Option has been affected then BPR is no longer available on the proceeds, i.e. from any life assurance pay-out. The spouse’s assets have now increased by the funds received from the life assurance policy, risking 40% of their proceeds to IHT, which depending on the size of the business could be a significant loss.
These assets are also at risk from attack from any future remarriage claims, creditors or bankruptcy and Long Term Care costs.
What are the consequences a standard Cross Option agreement for the surviving business partner?
With a standard Cross Option Agreement, the surviving partner now owns 100% of the company. This is fine whilst the business is still trading and whilst BPR is still applicable.
What would happen if they decide to sell the business?
Their personal Estate will increase to include the proceeds from this sale. Furthermore, the spouse is wide open to attack from IHT, creditors, bankruptcy, divorce and Long Term Care costs.
(i) Each Director leaves their share of the Business to their Beneficiaries via their Will.
(ii) Cross Option Agreement established to enable one Director to purchase the other Director’s share of the business in the event of their death.
(iii) Life Assurance policies taken out by the company in order to fund the purchase of the shares / partnership.
(iv) On the death of Director, A, his share of the business passes through the Will to his Beneficiaries. The Life Assurance policy pays out. The company can then execute the Cross-Option Agreement, using the Life Assurance proceeds to purchase Director A’s share of the business.
(v) This results in Director A’s Beneficiaries receiving the life assurance proceeds, and Director B owning 100% of the company.
Director A’s Beneficiaries
|Beneficiaries now have the funds from the Life Assurance policy.
These funds are now part of their Estates and so will be assessable for IHT when they die.
These funds are also at risk from claims from divorce, remarriage, bankruptcy and long term care.
|3rd Party Claims
Director B will now own 100% of ABC Ltd which is at risk from divorce, remarriage, bankruptcy and long term care.IHT
Whilst trading, Business Property Relief is applicable. However, if he sells the business, the cash proceeds will then be part of his Estate and so will be assessable for IHT when he dies.CGT
On sale, the growth in Director B’s share has increased and hence more CGT payable than necessary.
Example of potential Tax Liability:
If we assume that the business is eligible for Entrepreneurs Relief, then the CGT (CGT) rate is 10%.
CGT payable on sale = £180,000
Example of potential Inheritance Tax (IHT) liability:
Director A and Director B each own 50% of ABC Ltd which is valued at £1,800,000.
Director A dies leaving 50% of the business to his Beneficiaries. The Cross-Option Agreement is executed resulting in £900,000 entering the Beneficiaries’ Estate.
When the Beneficiaries die, the potential IHT bill on these funds is 900,000 x 40% = £360,000
Subsequently, Director B decides to sell the business resulting in £1,800,000 entering his Estate.
When Director B dies, he leaves a potential IHT bill of £1,800,000 x 40% = £720,000
A combined tax bill for the surviving director of £720,000 + £180,000 = £900,000
The potential combined IHT bill = £360,000 + £720,000 = £1,080,000
Please note, the Financial Services Authority do not do not regulate some forms of Trust products and services.