Category: Business Law Blog

Morning Business 60 – Estate Planning for the Business Owner

Our Mission at Epiphany law is to positively impact lives through education, empowerment, and an innovative approach to problem solving.  One of the ways we live our mission is to host meetings that allow business owners to share ideas, learn about various business topics, and share best practices relevant to business professionals. The goal of Morning Business 60 is to provide information to business owners which will assist them in running their business effectively and efficiently. It is free advice, networking, and includes a light breakfast and coffee all at no cost to you.

At  our December Morning Business 60 we will discuss estate planning for the business owner. Business law and estate planning are often viewed as separate and distinct. But for the owner of a closely held business, the two must, but often fail to, overlap. The best planning results from a team approach which efficiently combines both.

Empower yourself as a business owner and join Epiphany Law for Morning Business 60 – Estate Planning for the Business Owner on December 6, 2018 from 7:30 – 8:30 am at Epiphany Law in Appleton (2800 E. Enterprise Ave). Registration is required; contact Epiphany Law at 920-996-0000 or to register or for more information.

ALERT: Payment Fraud Warning

fraud alert

It is no secret that schemes and scams designed to fraudulently separate you from your money abound.  Every day it seems we learn of new and creative ways criminals have devised to defraud innocent people. Sometimes the schemes are brand new, sometimes they are recycled.  Whether new or old, however, they can hurt the people who fall prey to them.

Recently, we have learned that banking institutions have seen increased activity surrounding a fraud scheme that has been around for a while.  You may be aware of this particular scheme, but we believe it can’t hurt to remind you to be vigilant and use best practices to protect yourself from fraud.

Here’s how the scheme plays out: You receive an email or regular mail from someone disguised as one of your current suppliers.  In the communication, the “supplier” informs you that they have recently changed their payment processes or their banking relationship and provides new wiring, ACH or other payment information to be used on all future orders.  The communication seems entirely legitimate, so you direct your accounting department to input the changes and your next payment is made accordingly.  Unfortunately, the criminals now have your money and it will be withdrawn from the account before you catch on and can get it back.

How you can protect yourself: ALWAYS double-check directly with your suppliers BEFORE you change any information in your company’s payment system.  Make a phone call directly to a trusted contact at your supplier to confirm whether the communication and new payment instructions are legitimate or not.  A phone call to a direct contact is better than email.  Email can be hacked and/or redirected.  A phone call will take only minutes but will provide you with significant protection.  It will also signal to your suppliers that you are vigilant and care about your relationship with them.

Long story short: Do NOT make any changes to how you pay your suppliers or vendors until you first confirm with them that the change of payment instruction is legitimate.

We’re Moving!!

We’ve outgrown our current  office and we are relocating on July 27, 2018 into a larger building with advanced technology just a few blocks from our existing location. The move will house our growing staff and will have the space to host seminars, workshops, and CLE classes for attorneys and advisors.

Our founder Kevin Eismann expressed, “I’m so proud of our team and the tremendous growth we’re experiencing.  I’m looking forward to the opportunities that lie ahead. The new building will accommodate our clients more effectively and will give us additional space to continue to host educational events.”

The new state of the art training center will regularly be used by our team to empower clients, advisors, and business owners.

Since the firm was founded in 2004, the team has grown to over 20 employees. The entire staff will make the move from our current 3600 square foot location at 4211 North Lightning Drive to the 8400 square foot location at 2800 East Enterprise Avenue.

A ribbon cutting ceremony and open house will be held August 15, 2018 from 4pm-6pm at 2800 East Enterprise Avenue, Appleton.  The ribbon cutting will be at 4:30pm. Everyone is invited to attend.

Exit Planning: Emotions Matter

“75% of owners who successfully exit their business ‘profoundly regret’ their decision to exit within 12 months of their retirement.” – Exit Planning Institute

Why do business owners so often regret their exit?

In reality, there can be any number of reasons for regret following such a monumental occasion. Of course, the most obvious source of regret applies to owners who make mistakes/oversights prior to an exit that negatively impact their financial well-being (they don’t get as much money as anticipated). It may surprise you to know, however, that just as frequently the main source of pain for the departing owner is purely non-financial.

At Epiphany, we seek to predict and eliminate mistakes that would otherwise result in “profound regret” for business owners. It’s a big part of what we do. We feel strongly that emotional preparedness in Exit Planning is JUST AS IMPORTANT as growing business value. Why?

Business owners who aren’t emotionally prepared for life after work end up sitting on a pile of money – miserable.

The following are common areas in which departing owners are emotionally unprepared for an exit:

Control issues. 

Many business owners have a difficult time delegating authority. Owner dependence is a major limiting factor when it comes to valuation of a business entity. Owner dependence refers to the amount of time an owner-operator must spend working in the business, as well as the unique knowledge, skills, and relationships the owner-operator has that are not documented, repeatable, and/or transferrable. An owner who is unwilling to begin relinquishing control will face a disappointing fate as they begin to navigate purchase offers.

Doing your planning in a vacuum. 

Departing business owners are notorious for wanting to handle their planning behind closed doors – and it makes sense. There are certain risks that can be avoided by using discretion with sensitive information. In this case, employee retention, supplier/customer relations, and market timing are all valid reasons to keep your intentions closely held.

At the same time, a plan is no plan at all when it is not communicated to the key stakeholders that it depends on. A classic example of this is the family business owner who assumes their kids are set to take over the family legacy, only to find out later that the kids want nothing to do with it. In this light, don’t be overly-paranoid about limiting information to everyone. People aren’t stupid; your suppliers, customers, and employees are probably wondering about your retirement already. Certain situations may lend themselves to being open and honest with many of these people; they may be extremely grateful for your honesty.

All in all, safe and open communication can prevent exit planning disaster. The conversations may not be easy, but then again, those things that are worth doing are rarely ever easy.

Not defining your purpose in life after work.

MANY people attach their self-worth to their work. Business owners are no different. If anything, they are more prone. The countless hours spent building, the struggles and sacrifices made, and the good times enjoyed are extremely difficult – nay, impossible – to say goodbye to. It’s who you are. Saying goodbye to who you are is a daunting task at any stage of life. It’s a task that should not be taken lightly.

Business owners who don’t take the time to understand and accept the loss of identity are very likely to experience a stage of depression after selling their business. Only after the owner has accepted a new reality can they begin to define a new purpose in life. Some will know immediately and some will take time to discover it, but all need to seek and discover a new purpose in order to truly experience a happy, healthy, and productive next stage of life.

“Business owners who aren’t emotionally prepared for life after work end up sitting on a pile of money – miserable.”

Not creating bucket list.

Nondescript ideas rarely come to fruition. As an example, the person who says “I’ll travel more” is likely to end up sitting at home pondering the past. By contrast, the person who says, “I want to see the Grand Canyon with my grandchildren in 4 years; at that time, the youngest will be able to remember the trip and I’ll still have the energy to do it!” will experience a much happier retirement. Whether or not they achieve those activities is irrelevant. The victory is in the thought, planning, and excitement to do something more in life.

Creating a bucket list is a fun way of kicking off your retirement. It can help you build excitement for the next chapter of your life. Further, it is something that should be referenced frequently in the future when you need to re-energize.

Not creating a detailed list of activities.

Similarly, you should take the time to think through the day-to-day activities that will get you through the “quieter” periods of life. What will you do on your typical Tuesday morning? If you are satisfied sipping coffee and watching day shows with your spouse, great! If you would rather be out to brunch with a group of friends, be intentional about organizing it and making it happen!

Not involving the spouse.

We are huge advocates for heavily involving your “better half” in this process. Why? 1) They know you better than anyone else – including, perhaps, yourself. 2) You will be spending a lot of time together in the next chapter of life. 3) They often help to keep things in perspective during what can be a complex and difficult process.

Ignoring your conscience.

It happens more often than people know – a business owner will feel some level of guilt related to their retirement, and promptly ignore it. Maybe it’s an employee that they made a promise to or a loyal supplier that they know will be in a bad spot after the sale. Whatever the feeling is, a common tendency is: ignore – proceed – regret. That is no way to begin your next chapter. We encourage you to listen to your own intuition in these matters and do what you can to make them right. You will be very glad that you did later.

Not defining key non-financial outcomes.

Business owners who do not engage in an exit planning process have a tendency to ignore or de-value outcomes that are not directly related to “cash in hand”. Frequently, these outcomes are only uncovered after the sale process has completed, becoming a substantial area of regret for the recently retired owner. Examples may include:

  • Protect / reward employees
  • Keep business in the community
  • Continue commitment to sponsorships / charities
  • Provide a job for a family member

You can learn more about Epiphany Law’s Exit Planning Services, and find a registration link to our FREE Exit Planning Webinars by clicking here.

If you have questions or comments, feel free to get in touch!

The New Business Valuation

Business owners are creative and strategic about how they live their lives. Naturally, they are extremely cautious about spending money on things they don’t “need”. Traditionally, one of the things that falls into the “I don’t need it category” is a Business Valuation. This post serves to analyze a new kind of Business Valuation, and offers 6 reasons why business owners should get one on a regular basis.

A common misconception is that all Business Valuations were created equal. There are very specific times (i.e. immediately prior to an impending sale) when a formal Business Valuation – the kind that can cost upwards of $10,000 – may be required. 99% of businesses don’t require this type of valuation on an ongoing basis, and most business owners are unwise to buy one.

What most business owners don’t know is that another kind of business valuation is available. For purposes of this article, we will refer to it as an estimate of value.

Put simply, it is an informal business valuation that considers a narrower scope of factors than its counterpart. Less detail and no promise to defend the valuation in a court of law means the cost to own is typically less than $1,000. The kicker? If you know where to look, you can find an estimate of value that is continuously updateable (online), extremely accurate, and includes Key Performance Indicators. Now THAT is something most – if not all – businesses can and should be utilizing.

Here are 6 reasons why:

  1. Better understand your business and its potential. Estimates of value can uncover key insights into the effectiveness of your business operations. How? The RIGHT report provides more than just a value; they provide Key Performance Indicators (KPIs) that serve to benchmark your company against your peers. You’ll know exactly how you are stacking up against your competitors, both locally – and nationally. Taken a step further, you will understand the areas that your company can improve to become more attractive (more valuable) to potential buyers. KPIs and other financial metrics , when analyzed correctly, uncover a path to unlocking business value.
  2. Know the value of your largest asset so you can plan for retirement. According to multiple reports, the average small business owner has 80 – 90% of their net worth tied up inside their business. It can be incredibly difficult – if not impossible – to truly plan for your retirement if you don’t have a realistic expectation of what your nest egg is worth. On the contrary, if you have an annual income goal in mind for retirement, an estimate of value can help you and your financial planner assess whether or not you are on track to meet that income goal! If you find out that you are behind the 8 ball, you can take deliberate action to grow the value of your business to the level you need to retire.
  3. Ensure the business and your family are properly protected. There are various kinds of business insurance, from general liability to crime protection. Based on the industry you are in an experienced business insurance agent can easily tell you the kinds of insurance you need. The more difficult task is determining the correct amount of coverage. Because successful businesses increase in value over time, it’s very unlikely that the amount of business insurance you needed 5 years ago is the same amount you need today. Many small business owners are underinsured based on their business value, and it’s because they simply do not have a realistic idea of what they are worth (i.e. what they need to protect). You can help your business insurance agent take the guess-work out of the amount of coverage you need by supplying them with an updated business valuation on an annual basis.
  4. Develop an Exit Plan. Many small business owners have an idea that they will pass along ownership to the next generation of workers. Problem: Most of the time, those workers do not have the financial resources available to execute a buyout when the time comes. An estimate of value can help you set expectations with the future owners of the company. Future owners can begin to prepare their personal balance sheets for a buyout. You may also choose to incorporate an incentive program to assist in expediting the succession.
  • Even if you decide to sell your business to a 3rd party, obtaining an estimate of value early in the planning process can help you manage expectations and identify opportunities for improvement.

5. Create / update buy-sell agreements with partners. Some business owners think that if they die, their family could maintain an income stream by continuing to run the business themselves or by hiring someone to handle the day-to-day management. In reality, loved ones usually do not have the skills or the desire for the job. What’s more, your co-owners may not welcome the idea of an unintended partner. That’s why buy-sell agreements are important! They serve to protect owners and families by establishing a process to buy an owner’s share of the business at an agreed upon price in the event of death, disability or retirement.

  • Just as many businesses are underinsured for business insurance, most multi-owner entities have buy-sell agreements that do not accurately reflect the current value of the business. It is recommended that buy-sell agreements be updated annually to reflect the current value of the business. These agreements should also be funded by life insurance to provide liquidity in the event of an owner’s death. Failure to appropriately fund a buy-sell agreement can leave both the company and loved ones at risk

6. Establish a trust or create an estate plan. The current estate tax threshold for 2017 is $5.49 million per individual. For married couples, that means nearly $11 million is exempt from estate taxes. While this is more than enough for most individuals to have to worry about estate taxes, business owners are among the most likely to experience estate tax issues. Truly understanding and managing your estate tax situation is impossible without an updated estimate of value. An EOV, combined with advice from an experienced estate planning attorney and financial planner helps heirs avoid the 40% tax that currently affects estates exceeding $11 million.

Epiphany Law partners with BizEquity to deliver valuation reports as part of the firm’s Exit Planning Services.

You can learn more about Epiphany Law’s business valuation services, and find our link to getting started HERE.

If you have questions or comments, feel free to get in touch!

Exit Planning: Why do Business Owners Avoid it?

Science has proved it to be an urban myth, but it was long believed that ostriches buried their heads in the ground at the sight of approaching danger.

Thus, the phrase “You have your head in the sand”, was born. It means: “To refuse to acknowledge or deal with problems, danger, or difficulty in the hopes that they will resolve themselves on their own.”

Business owners are notorious for “burying their heads in the sand” as they near the end of their runway. But why?

When so much can be gained by sucking it up and planning for an exit, why do business owners avoid it?

In no particular order, here are several reasons:

  1. Afraid of getting old. Exiting the business represents “the end” of youth.
  2. Feel trapped. Used to a high level of income that accompanies business ownership. Afraid that they will have to take a “pay cut” in the last chapter of their lives. The tendency is to stay in the business, pulling off a heavy salary, as long as possible.
  3. Don’t know what to do next. Don’t have a purpose in life after work. Business is their identity.
  4. Afraid of being bored.
  5. Don’t want anyone to know they are planning to exit their business. They have an irrational fear that employees, customers, suppliers will leave if they find out a transition is happening. In reality, these people are already thinking about the business owner’s eventual retirement, and they would feel more comfortable if they knew the strategy for moving forward after you are gone.
  6. Have priorities that feel way more urgent than exit planning. “I don’t even have enough time in the day to run my business, how am I supposed to have time to plan for an exit”. This is the classic “saving face” excuse that many business owners are willing to voice when they don’t want to discuss their soft/emotional apprehension toward leaving the business.
  7. Misinformed and confused about what to do. In a world where most professional services have stood as pillars of industry for hundreds of years, Exit Planning is still in its infancy as a practice. It’s an incredibly confusing and very time-consuming process. And different advisors preach different things. Unfortunately, many advisors right now are taking a micro-view of “Exit Planning” that fits their personal expertise, because there is money to be made if they can play a role in an owner’s exit. For example, a financial advisor may map out a business owner’s projected retirement assets/expenses + reallocate their investment portfolio and call it “Exit Planning”. This is not Exit Planning. It is a very small piece of the much larger Exit Planning process.
  8. Genuinely don’t want to exit. They still have the drive for it. They still thoroughly enjoy what they do. Can’t even comprehend leaving in the next 10 years. This doesn’t mean they shouldn’t familiarize themselves with the Exit Planning process. There are certain concepts – particularly in the area of risk management – that all business owners should implement correctly many years before they feel “ready”. Taking some time to understand the process – to understand what buyers are looking for – can afford business owners a strategic advantage.
  9. Control issues. Some business owners are simply attached to the operations. Can’t let go, even if there are people in place, ready to assume more responsibility. If they aren’t in place, it usually is a simple process to cross-train people to assume more responsibility or hire an additional employee to assume some of the burden.
  10. Don’t understand all the options available to them. Many business owners have very misguided beliefs about the market for their business. A common mistake is to ignore a sale to employees because they “don’t have any money”. In many cases, if time is on the owner’s side, there are strategic ways of helping employees build capital.
  11. Heir-apparent (successor) is not working out. The most common situation is that the owner’s “heir-apparent” child does not possess all the qualities that the owner would like to see. In some cases, the concerns are valid. In other cases, the owner is being overly-critical. Regardless, owners whose heir-apparent isn’t “just so” undergo a great deal of emotional turmoil as they grapple with “what to do”.
  12. Can’t figure out how to be “fair” to everyone, including: children, spouses, employees, etc.


Fear and other emotional distresses play huge roles in a business owner’s decisions near the end of their runway. It’s common for the owner to vocalize a “rational” reason (like #6) to others, while concealing the true reason. The sad and unfortunate truth is that many business owners never work up the courage to face the true source of their distress. They simply avoid the situation entirely until they are forced from the business by some health-related factor. Businesses rarely survive that situation.

Question for the Crowd: Do you have personal experience dealing with an owner who stuck their head in the sand near the end of their runway? We would love to hear your story! Tell us what your role was (employee, child, spouse, etc.) and what you think the owner was avoiding. Is there anything you could have done to help the situation?  Please comment below or send an email to (Re: Head in the sand) and we will post your comments anonymously.

Exit Planning: Starting the Conversation

More than 70% of businesses put on the market never sell.   That’s 70% of those put on the market, don’t sell.  And countless more businesses never even get listed but rather die quietly due to an owner’s unexpected death or illness.

Only 34% of family businesses survive to the 2nd generation.  That’s 2 out of 3 never successfully make it from mom and dad to the kids.  And only 14% of family businesses survive to the 3rd generation.

Why?  Simple:  Failure to properly plan for the succession of the business to a buyer/next generation and failure to plan for the successful exit of current owners.

Bottom line: Business owners wait too long to begin planning for this HUGE transition. It’s a major issue afflicting our society, and one that will only grow over the next decade as hundreds of thousands of baby boomers look to sell.

As we well know, the first step in solving any problem is recognizing there is one. In the case of the aging business owner, the simple act of talking openly with someone about exit planning can spark action. And action can mean the difference between a seamless transition at fair value or a disastrous failure. If you are a loving spouse, child, parent, friend or confidant of a business owner that is avoiding tackling exit planning for their business, this article is written for you. As this tsunami swells, it is critical that you – the child, the spouse or the close friend – assume a vital role: Starting the Conversation.

Whether you are next in line for a business succession or simply a concerned loved one, here are some tips for starting the conversation with an aging business owner:

  1. Have empathy. It’s the ability to understand someone else’s feelings, attitudes, and perspectives. The ability to “put yourself in someone else’s shoes”. Start by opening your mind to think about the situation exclusively from their side. Think about how they feel about their business. Think about the hours they put into it, the hard times they have endured, and the success they have achieved. Respect and embrace those thoughts, and keep them with you as you talk. To further prepare yourself, understand the common concerns business owners have:
  2. Treat it like a business meeting. This is a BIG deal. Do not treat it as you would if you were talking about last weekend’s college football games. Don’t bring up in passing or with playful jests. Doing so diminishes the importance and may provide an avenue for the owner to continue avoiding the topic. Set aside time for this conversation, as you would with an important business matter. Ensure there are no distractions. Doing so will set the tone that it is a serious conversation. You words will instantly come across as more sincere and genuine.
  3. Prepare yourself. Come into it with a list of things you would like to say and questions you would like to ask. Mentally, have an open mind and be prepared to listen. Emotionally, try to remain neutral so they can express themselves completely.
  4. Understand your ideal outcome. The ideal outcome may be lightly different for everyone having this conversation, but it generally looks something like this:
    • You effectively express your own concern and love for this business owner.
    • You are able to ask a few questions.
    • You schedule a time to revisit the conversation at a later date (with more information, a 3rd party, after serious thought).
  5. Don’t be discouraged if they aren’t ready. It is very likely that they won’t be ready to open-up the first time you talk. Don’t be discouraged! Be respectful of their process for dealing with this, and focus on committing to another time to talk in the future (a couple weeks later). The business owner will probably think and process extensively over the next couple weeks, before coming to your next meeting much more prepared.
  6. Seek the help of a 3rd party — eventually. Not for the first meeting – you may risk blindsiding and/or offending the business owner. You want them to open up, not shut down. However, assuming an initial conversation went well, you may suggest having a 3rd party present for subsequent meetings in order to help facilitate discussion. Look for their most trusted advisor – whether a financial planner, banker, accountant or attorney. If they don’t have a most trusted advisor, look for a Certified Exit Planning Advisor (CEPA), as they have a deep understanding of common concerns, as well as strategies to move forward.
  7. Just do it. We all want to avoid having the difficult conversations – its human nature. Most will avoid it, ignore it, and make excuses not to do it. Be one of the few. You aren’t doing it for yourself, you’re doing it for someone you care about. Someone who is woefully unprepared. Someone who’s future happiness depends on you Starting the Conversation.   The difference between a successful exit and the destruction of a lifetime of work could be you!

The Importance of the Employee Handbook


Employee handbooks
Employee Handbooks Protect Employers

An employee handbook serves as a guide for employees and employers. The handbook is a tool to provide clear expectations and rules.  It defines ground rules and explains what is and is not considered acceptable behavior. Done properly, an employee handbook is a great first line of defense for a variety of legal issues.

However, if an employee handbook is done improperly, it can lead to confusion, anger and lawsuits. The sections contained in the handbook need to be carefully worded in order to avoid those pitfalls.  Generally, laws regarding employees and employees are drafted in favor of the employee so without the protections offered in an employee handbook, the employer is open to more risk.

Although some federal regulations such as Title VII and the Americans with Disabilities Act do not go into effect until you have 15 or more employees, a business of any size can be sued for other employment related issues.

To minimize your risks, it is important to have a relationship with an employment law attorney who will update you of any federal or state required changes.

Other ways to minimize risks include an annual handbook review. As the world changes, you may need to create new policies that reflect the changes in the law and your employee handbook should reflect those changes.  For example, think of the changes to the workplace over the past few years like health care reform, more employees are able to work from home, working parents and the balance between home and work life, the use of personal mobile devices and so many others.

In addition, the handbook should be reviewed to make sure the documented polices that are included in the book are consistently followed and are a reflection of the culture of your work enviroment.  If the policies in the handbook are not followed and not a reflection of your work enviroment, you will have a weak defense if a dispute arises.

Remember, it’s not enough just to update the handbook.  Clearly communicating any change or policy update to all employees is also required.

Small Business Owners: The Future Might Not Be All That Uncertain

If you are like most small business owners, you find it difficult to plan because your future has more unknowns than your non-business-owning counterparts. You might not know how much your business is worth, when you should sell, where to find the right buyer, how to fetch the best price, or even how much insurance to carry. If you have a family business or operate with a partner, you also have additional layers of both complexity and ambiguity.

When planning for the future, it is easy to become overwhelmed by all that isn’t known. When you step back and evaluate the questions marks that dot the path to your future, however, you might realize that not everything is unknown.

The value of your business is a prime example of a discoverable fact, yet if you are like 98% of the other small businesses in this country, you don’t know the answer.

With less than a half an hour of your time and innovative technology that harnesses the power of big data, you can get an accurate business valuation to illuminate your path. The valuation will give you an understanding of how much your business is worth, how it compares to others in your industry, and the levers that could drive future growth.

According to a Financial Planning Association/CNBC study, over 70% of small business owners have the majority of their wealth tied up in business assets. Knowledge of how much yours is worth brings clarity and insight into retirement and estate planning discussions, succession planning and exit strategies, and insurance protection decisions.

As Lieutenant General and former Deputy Director of the CIA, Vernon Walters, once said, “Uncertainty is the most chilling thing of all.” To reduce the amount of ambiguity you face by determining the value of your largest asset, consider obtaining a business valuation today.

Protect Your Business with a Business “Prenup”

If your business has two or more owners, you need a Buy-Sell Agreement.

A buy-sell agreement is simply a contract between two or more business owners that formally documents contingency plans if a life changing event occurs.  Some people refer to these agreements as “prenups” for business owners. In the agreement, the business owners agree upon what happens to the ownership structure of the company in the event of one owner’s death, divorce, disability, retirement or other life changing events.

Many business owners don’t realize until it is too late the importance of a buy-sell agreement.  For example, if an owner gets divorced, the business may become hostage to the marital dispute. Or if an owner dies, the surviving business owner(s) may inherit heirs for business partners, who care little about whether the business survives.

Without a buy-sell in place, you are opening yourself and your business up for unknown risks.  Protect yourself and your business from the unknown future with a buy-sell agreement. Ensuring that critical events are properly covered is essential to the long-term survival of your business.