According to Leo Okafor, “The day you execute an estate planning instrument is the day you sow a seed from which the future and comfort of your loved ones begin to grow and their future become assured. The sooner you plant the seed, the sooner shall the tree grow[i].” There is no greater truth in this quote. The Media and caselaw in Nigeria are replete with examples of the vast estate of renowned businessmen whose businesses followed them to their graves, either for want of an estate planning structure or deficiency of same. It goes without saying therefore that estate planning must be intentional.  Proper thought must be put into the preservation, management, and distribution of one’s estate[ii] after death or in the event one becomes incapacitated.   Without effective estate planning in place, one’s loved ones will be at the mercy of State laws and the law courts accordingly.

As the name suggests, Estate planning is strategic and very intentional. It involves some basic preliminary steps such as creating an inventory of one’s tangible[iii] and intangible assets[iv],  accounting for one’s family and business needs, establishing one’s preferred directive on family and business governance, identifying your proposed beneficiaries, noting relevant estate laws, and reassessing all the above periodically as they evolve or change.[v] Indeed, the concept goes beyond the administration and management of assets upon demise. This extends to setting up mechanisms that will ensure the estate also appreciates in value over time.

The objectives of estate planning can vary from person to person but it generally comprises financial, post-demise, philanthropy, and provision for dependants, amongst others[vi]. Indeed, it is a prudent step for every man to take at a point in their life.  Some common mistakes made with respect to estate planning include but are not limited to the following:

1. Procrastination
2. Dying Intestate
3. Leaving wealth to minors without putting adequate safeguards
4. Failure of periodic review of existing structure
5. Failure to engage requisite professionals such as lawyers, trustees, and auditors to manage the size of their estate

Forms of Estate Planning

There are well-known traditional forms of Estate planning and also modern ones as well. It is instructive that while the traditional forms only consider the distribution of wealth upon the demise of a person, modern forms can effectively begin to operate even during one’s lifetime, thus giving one the opportunity to assess, appreciate, improve, and even benefit from the estate vehicles set up.

The traditional forms notably include customary practices on succession, creation of wills, and preparation of a Deed of Gift. These forms however have their limitation which have spurred the development of modern tools.

The Modern vehicles of estate planning include the creation of private trusts[vii], foundations, and the creation of a Power of Attorney[viii] to mention a few.  Modern vehicles appreciate and accommodate the complexity of today’s world with unconventional family structures (co-habiting parents, blended families, single parents) and varied assets (cash, digital assets, intellectual assets, cryptocurrencies, shares, pensions, amongst others).

In today’s digital world and global village, understanding international laws is no longer only a concern for multinational companies.  The high incidence of available second residency schemes and advancement in technology has greatly influenced the ease at which people can live, invest, and/or do business outside of their home countries. This has also resulted in an increased appreciation and understanding of how different laws affect our lives and estates as well.

Furthermore, with effective estate family planning, family Governance of businesses can also be efficiently catered for.  Family Governance is a process where the family formally structures their relationship with each other as well as the relationship with the family business/investment company, for the benefit of the current family units as well as for generations to come. Thus, managing both the assets and the family relationships on a continuing basis is essential. By this careful engineering, one can pass both their values and their valuables to their children.

Here are some common elements of family business governance:

• Board of Directors: Family businesses may establish a board of directors that includes both family members and external professionals. This board helps make strategic decisions and provides oversight.
• Family Council: Larger family businesses might create a family council that serves as a forum for family members to discuss business matters, succession planning, and governance issues.
• Family Constitution or Charter: Some families create formal documents that outline the governance rules, rights, and responsibilities of family members involved in the business.
• Succession Planning: Planning for the transition of leadership and ownership from one generation to the next is crucial for sustainability. This often involves identifying and grooming qualified family members or considering external leadership if necessary.
• Professional Management: Family businesses may bring in professional managers from outside the family to run the business, especially if there are no qualified family members, or to ensure competence.
• Ownership Structure: The ownership of the business may be divided among family members, possibly with different classes of shares and voting rights.
• Conflict Resolution Mechanisms: It’s important to have mechanisms in place to resolve conflicts among family members to maintain a harmonious working environment.

Importance of Qualified Persons in Family Business Governance:

• Expertise and Knowledge: Qualified family members bring industry-specific knowledge, skills, and experience that can benefit the business.
• Commitment: Family members with qualifications often have a strong commitment to the business’s success, as they understand its operations intimately.
• Alignment with Family Values: They are more likely to align their decisions with the family’s long-term goals and values.
• Succession Planning: Qualified family members can be groomed for leadership positions, ensuring a smooth transition between generations.

Conclusion

To secure one’s family’s future, it is imperative that no matter the size of one’s estate, proper planning should be put in place and subject to periodic review to align with one’s evolving realities.

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[i] Leo Okafor (2009), “Leo on Living Trust”, Prestige Books

[ii] Estate refers to

[iii] Examples of tangible assets are lands /houses, vehicles, collectibles, gadgets and equipment, clothing, and jewelry, among others

[iv] Examples of intangible assets includes stocks, bonds, life insurance policies, retirement plans/pension, intellectual properties, amongst others

[v] Deborah O Onafadeji, Understanding Estate planning: Concept and planning accessed from https://www.mondaq.com/nigeria/wills-intestacy-estate-planning/1358836/understanding-estate-planning-benefits-and-concepts n 18/9/2023

[vi] https://www.woodgundy.cibc.com/en/reference/wealth-protection/estate-planning-objectives.html accessed on 18/09/2023

[vii] Unlike Wills, the establishment of trusts gives the trustee the power to distribute the property of the grantor without applying for probate or any court-ordered process hence, it reduces estate taxes and saves time.

[viii] This is particularly helpful during one’s lifetime. It could be revocable or irrevocable and subject to registration, depending on the scope of powers sought to be delegated. Usually, the donor delegates powers to the donee where the donor is unavailable to perform the acts delegated, incapable of performing the delegated tasks due to ill health, or when the donee’s expertise is required for the proper execution of the delegated tasks.

Written by Deborah Onafadeji for The Trusted Advisors

Email us: info@trustedadvisorslaw.com

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