Family Estate Planning

Estate Planning

Estate planning is a legal process of deciding what should happen to your estate or assets in your die or become incapacitated, and taking requisite legal set to ensure that your decisions are effectuated. It includes the process of anticipating and arranging, during a person's life, for the management and disposal of that person's estate during the person's life and at and after death, while minimizing potential management or tax exposures.

I have an experienced team of professionals who can assist you in all matters or issues related to estate planning as well as in probate and administration matters in accordance with the Kenya Succession Act related to estate planning as well as probate and administration.   

Our services offerings include:

• Drafting of a Family Constitution;
• Drafting of a Shareholders' agreement in line with IFC Handbook on Family Owned Businesses;
• Aligning your company's Memorandum and Articles of Association to the shareholders' agreement;
• Transfer of family properties to a family holding company (for ease of administration and tax efficiency) and procuring the requisite tax exemptions on transfer of family properties such a vehicle;
• Creating of an effective group structures (where there are more than one companies);
• Company secretarial issues;
• Corporate governance advisory;
• Executive Managers/directors' contracts and their remuneration structure including HR Manual;
• Wills and family trusts;
• Set up of a Family foundation or Charity;
• Planning and executing a Succession Planning Strategy.
• Succession Planning

This in undoubtedly the most important business decision that you can make as business owner, and undeniably the toughest. For a family business, succession is a once-in-a-lifetime decision. Perhaps no undertaking has as much potential to exacerbate the special stresses – or, conversely, highlight the special advantages – of operating a family business.

 

Why come to think with us?

And as if the business, emotional, legal and technical issues weren’t thorny enough, consider this daunting fact: only about 30 percent of family businesses survive into a second generation.

As shy as many families may be to tackle the issue of succession planning, the health and longevity of a family business depend on a well-executed succession planning – developing a robust plan and communicating the results to the right stakeholders in a timeous manner. Doing so will increase the likelihood of your business enduring beyond the leadership transition, delivering lasting value to your family.
 

Why come to think with us:

Succession Plan and Strategy
We have a professional legal and business-minded team dedicated to helping family business owners develop an effective succession plan. Further, we shall also assist you in each step in the execution of the plan, so that the whole process runs as smoothly and efficiently as possible.

Sale of the business.
If a sale is the best option, we work with you to get the best price for your business by identifying the right buyer, while respecting your confidentiality.
 
Tax-efficient structuring
Succession planning is one area where your leverage tends to diminish with time. The decisions you make will affect the future of your business, customers, employees, community and, most importantly, yourself and your family. Therefore, it is often wise to solidify a business succession plan sooner rather than later.

We invite you to contact us to explore how we can help you turn your biggest challenge into one of your biggest opportunities by creating a legacy of success.

For further information or clarification, you can reach me via mainacy@gmail.com

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Requirements for Exemption from Income Tax for charitable religious organisations

Requirements for Exemption from Income Tax  for charitable religious organisations

Exemption from income tax by religious and charitable organisations is provided for under paragraph 10 of the First Schedule to the Income Tax Act, chapter 470, of the laws of Kenya.

The application should be addressed to Kenya Revenue Authority, the Commissioner for Domestic Taxes, but is usually processed through the regional KRA office in the jurisdiction where the applicant is based.

There is no formal application form that is required to be filled. Thus, the application should be made in form of a letter addressed as appropriate and detailing that the applicant has made the requisite criteria for exemption as provided for in the said provisions of the Income Tax Act.   

The application should be accompanied by the following documents:-

1. Certified copy of Trust Deed /Constitution of the applicant.
2. Certified copy of Certificate of Incorporation/ Registration  of the applicant;
3. Certified true copy of the PIN Certificate of the applicant;
4.  A resolution of the applicant resolving to apply for income tax exemption;
5. A profile of the applicant detailing its charitable activities and how these benefit the residents of Kenya;
6. Recommendation letter from relevant  regional religious leader or Bishop in support of our application;
7. Letter from the Provincial Administration (D.C., D.O., or local Chief), evidencing the existence of the applicant and its activities;  
8. In case of a renewal, copy of the previous Certificate of Exemption;
9. Copies of the latest financial statements (profits and loss accounts/income and expenditure statements and balance sheet) of the applicant;
10. Letter of authorization the agent to submit the application on behalf of the applicant and deal with all incidental correspondence.  

 For more information or assistance relating to tax exemption for charitable organisations, please contact me via mainacy@gmail.com 

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Shareholders’ Agreement- Scope and importance

Shareholders’ Agreement- Scope and importance
No person gets married expecting a nasty divorce several years down the line. Similarly, no one expect their other half will go on unbridled spending spree on their joint account or waste the family assets... but is there anything can be used to prevent such occurrences? Following the enactment of the the Matrimonial Property Act, 2013 and the Marriage Act, 2014, some couples have resulted to negotiation of pre-nuptial agreements in an effort to minimize such occurrences.

What about in a company business? It is common for shareholders to disagree on the business(es) of the company or methods of carrying on the same or on their decision making powers. Moreover, the directors may act alone and bind the company to the detriment of shareholders. A well crafted shareholders’ agreement at the onset may provide for these and other important matters thus minimizing expensive legal battles. More importantly, shareholders’ agreement can prevent disputes arising altogether by ensuring that all shareholders’ knows in advance their rights and obligations vis-a –vis those of others or different organs of the company. In other words, a shareholders’ agreement also define what level of control a shareholder has over the business affairs of the company and the management.
During the negotiation of a shareholders’ agreement, the shareholders are in a way educated, or reminded, on how to run their company in a prudent and professional manner and the principles of the company law that guide their interactions with one another and those entrusted with the management (the board ).

Unfortunately, many investors do not negotiate a suitable shareholders’ agreement to guide them and their company when they start business.  This explains the many messy disputes in private or family companies, some of which have been highlighted in the media.

In some cases, the success of a company may be heavily dependent on funding of a single shareholder or two. If they depart suddenly, for instance due to death or retirements, the business may be affected adversely or even collapse.  Or it might be that the dependents of a deceased shareholder may be relying on capital tied up in the business of the company in the event of the shareholder’s death. However, if such a situation is not covered in a shareholders’ agreement, it might be very difficult to get the money out of the company and the remaining shareholders may continue enjoying the money -interest free, at the expense of the dependents.
Unless there is a shareholders’ agreement there is nothing to stop a fellow shareholder in a private company from selling their shares to a total stranger who may not have a common vision with the other shareholders. Moreover, if a fellow shareholder would never voluntarily sell their shares, if there were to lose their shares, for instance in a divorce or other legal administrative procedure, the former spouse or a court appointed administrator, may end up owing those a shares.  A shareholders’ agreement can prevent such a scenario.

While setting us a company, the dream of the investors might be to run the business for a number of years and then sell it as a going concern for millions of shillings.  But even if the company is hugely successful, shares in a private company may be worth very little unless all,  or a certain majority of shareholders,  agree to sell together. A shareholders’ agreement can prevent an adamant minority shareholder from having the ability to spoil the deal of a lifetime. 
A shareholders’ agreement will normally provides for a number of situations that will hopefully never arise.  However, they provide a detailed road-map on how to handle such situations should they arise.

A shareholders’ agreement will usually supplement the provisions of the Company’s articles of association, and unlike the latter the same is a private document and is not required to be filed with any public registry. 
In brief, a shareholders’ agreement will -

1.  Define the business(es) of the company and the method(s) of carrying on the same;
2. Provide for reserved matters which will require agreement of all shareholders, or a  certain majority;
3.  Set out the powers of the board vis-a- vis the shareholders in general meeting;
4. Define the funding and dividend policies;
5. Provide for methods of resolution of disputes between shareholders including how to handle a deadlock  situation;
6. Prevent the situation where changes in one shareholder’s personal circumstances can have an adverse effect on the company or other shareholders; and
7. Set out the limits and procedures for how the company should be operated.

As explained above, a shareholders’ agreement is a document of vital importance when more than one shareholder/investor are setting up their company.  The fact that they are family members does not negate the need for a shareholders’ agreement. In fact, the latter situation makes a stronger case for a shareholders’ agreement, which can guide family members on how to run the company and resolve any dispute between them without ruining vital family relationships. 

Most importantly, a shareholders’ agreement is there to ensure that the company’s decisions enjoy a particular level of consensus and discussion rather than one-sided imposition.  It will also provide for clarity and certainty to a shareholder as to what he/she can or cannot be done, thus eliminating unnecessary conflicts and misunderstandings.

The cardinal rule is: hope for the best put prepare for the worst!  Are you prepared?
You can get touch with the writer via mainacy@gmail.com for more guidance on preparation of a suitable shareholders’ agreement for your company.

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