Family business succession in Asia - legal insights

4 March 2024 | 5 minute read

Forward-looking family businesses have demonstrated remarkable resilience around the world, empowering them to weather market volatility and commercial shifts. These enterprises have not merely survived but thrived.

A common trait among these businesses is the founders’ foresight for strategic, long-term planning. This includes diversifying revenue streams and segregating business operations to facilitate efficient succession by future generations.

Such planning allows subsequent generations to maintain the founders’ core values and continue their legacy. It also lays a foundation for future generations to not only preserve the family wealth, but also expand the business.

Mabel Lui, Head of Greater China Commercial at Withersworldwide, an international law firm, says that a family enterprise’s key feature is ‘by the family, for the family.’

Mitigating family disputes

Family relationships’ complexities can sometimes spark rivalries among family members. Many prosperous family enterprises acknowledge the importance of mitigating these conflicts by dividing the family business among different family members. This strategy minimises potential disruptions and damage caused by sibling rivalries. Lui notes, “Business segregation is potentially more effective in ensuring the family business’s smooth development than any written rules.”

Many successful businesspeople involve their children in the family business while maintaining control

In addition to this ‘divide and prosper’ approach, business diversification and modernisation are also crucial. Diversification involves expanding operations into various areas to broaden income sources, tap into high-growth potential, and reduce reliance on the original industries, thereby mitigating the risk associated with a single or limited revenue stream.

Resilience is another common trait among successful family enterprises, often fostered through business modernisation. To stay competitive and relevant, they adapt to new trends and opportunities, which may involve diversifying products, penetrating new markets, or leveraging new technologies.

Before succession becomes a necessity, these enterprises will start preparing the next generation to take the reins. This approach ensures a seamless transition and allows ample time for training and mentorship. Nearly all family enterprises in Hong Kong have implemented early succession planning. This strategy results in the second or third generation participating in and receiving training from the family business, eventually assuming leadership.

Lui notes, “Many successful businesspeople involve their children in the family business while maintaining control, offering business guidance and oversight, and instilling the family’s core values and culture. Even after passing the baton, they continue to provide advice and support, ensuring a smooth leadership transition.”

Governance, legal enforceability and tax

It’s recommended that a family enterprise establishes a family governance structure before approaching succession. The governance framework signifies the shift of decision-making from the founder alone to a collaborative and collective process among family members, according to Lui.

Family members should be briefed on shared values, a common mission, and a collective vision for the future. Family governance helps manage wealth, define roles, set boundaries, and balance competing interests.

Family governance is a good starting point. It provides a framework for regulating family affairs

The framework addresses roles, rights, and responsibilities of family members, formalises business relationships, and creates policies for family employment, development, and compensation. She notes, “It also provides a forum to resolve conflicts, preventing potential dissolution or sale of the family enterprise, destruction of family wealth, and breakdown of family unity.”

Essentially, the structure includes a family council and assembly, akin to a company’s board and shareholders, and is codified in a family constitution.

“Family governance is a good starting point,” says Lui. “It provides a framework for regulating family affairs. Members with a shared goal of preserving the family’s wealth can voluntarily comply with it.”

However, unlike commercial contracts or wills, family constitutions and governance rules are not legally binding unless they incorporate consideration in the legal sense. “These documents should include compliance measures, restrictions, and clauses outlining the repercussions of non-compliance. It’s a highly complex exercise,” she adds.

Picking the right legal tools

Daniel Tang, a partner at Withersworldwide in Hong Kong, emphasises the importance of legal enforceability for seamless generational transitions, especially when the transition is implemented by changing shareholders or directors in corporate vehicles. “This necessitates a legally binding document that explicitly outlines the mechanisms and sections detailing how various stakeholders can exercise their rights within the family holding vehicle,” he points out, adding that considerations for prenuptial and postnuptial agreements are also vital components when the children get married.

Many family businesses use offshore holding structures for their investments

Tang also advises the inclusion of special voting rights for the founders. “While the founders permit the younger generation to hone their skills, they should retain a degree of control, especially if things don’t proceed as anticipated,” he notes. “They can utilise their special voting rights to intervene and ensure the family company’s steady progress.”

Tax-driven elements are equally crucial, playing a significant role in the planning and governance structure of a family enterprise. Family members residing in different countries will have varied tax concerns.

Advisors must assist clients to tailor their family business plans around the tax regimes of various jurisdictions to prevent any negative tax implications for individual members. Lui notes, “It’s not ideal to approach planning solely from a governance or profitability perspective without considering the tax implications for individual family members.”

Fast evolving landscape

A rising number of ultra-high net worth families are establishing family offices to handle their affairs, primarily dealing with wealth and asset management, succession and legacy planning, tax and legal matters, public reputation management, and philanthropy. In Asia, Singapore and Hong Kong are preferred by many families as the headquarters for their family businesses.

Both cities have rolled out various incentives to lure more family offices to set up in their region. For example, the Hong Kong government recently enacted a bill offering profit tax concessions to family offices, supplementing other incentives that have already drawn high net worth individuals to establish family offices in the city. These incentives include a profit tax exemption for family-owned investment holding vehicles (FIHVs) managed by single-family offices.

However, the landscape is rapidly changing. In Hong Kong, tax revisions have been made, such as the 2023 Amendment Ordinance to the foreign-sourced income exemption, which took effect in early 2024. “Many family businesses use offshore holding structures for their investments,” says Tang. “These investment holding schemes are increasingly scrutinised internationally by regulations like the OECD’s Common Reporting Standard for foreign-sourced income. It poses more challenges for families to comply with all requirements while maintaining a tax-efficient structure. That’s where professional advisors like us come into play.”

Each family’s unique characteristics necessitate a ‘bespoke’ legal advisory package for strategic, sustainable planning. “We delve into the client’s family values, which guide their business,” says Lui. “We then participate in decision-making, be it legal or commercial.”

"When advising on a family company's tax matters, for example, we will involve our private client and tax team, which is well-versed in family wealth planning matters and relevant tax considerations, and a corporate lawyer who efficiently handles corporate commercial related areas," adds Tang.  

First published by South China Morning Post on February 26, 2024

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This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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