What If an Estate Holds Majority Stake in a Business? (w/Examples) + FAQs

When a majority business owner dies, their ownership stake doesn’t vanish; it is transferred to their estate, which immediately becomes the new, and often unprepared, majority shareholder. The core problem this creates is a direct and destructive conflict between two separate bodies of law. Succession law, which governs the estate, is driven by a principle of “distributive equality,” designed to divide assets fairly among heirs, often leading to fragmented ownership and unqualified management.

This legal mandate to divide and distribute clashes head-on with corporate law, which is built to concentrate control and preserve the business as a single, ongoing entity. The immediate negative consequence is paralysis. Business bank accounts are often frozen, halting payroll and vendor payments, while a leadership vacuum throws the company into chaos. This unplanned transition is a primary reason why nearly 70% of family-owned businesses fail to survive into the second generation.

This article will break down exactly what happens and how to navigate this crisis. You will learn:

📜 How the specific legal structure of your business—from a sole proprietorship to a corporation—is the single most important factor determining what your heirs actually inherit.
👥 The roles, rights, and hidden conflicts of every key player, including the executor, the heirs, surviving partners, and even employees, and how their competing interests can ignite disputes.
⚖️ A step-by-step walkthrough of the probate process for a business, explaining the executor’s critical duties and how a company’s value is officially determined for the IRS.
🛠️ The essential legal tools, like buy-sell agreements and trusts, that business owners can use before a crisis to guarantee a smooth, private, and immediate transfer of control, completely avoiding court interference.
💥 Real-world case studies that reveal the catastrophic outcomes of poor planning and the specific strategies that successful families use to protect their legacy and wealth for generations.

The Unseen Battlefield: Where Estate Law and Business Law Collide

Your Two Conflicting Sets of Rules

When an estate inherits a business, it’s like trying to play a single game with two different rulebooks. The first rulebook is Succession Law, which is all about transfer and distribution. Its main job is to take everything the deceased person owned and pass it on to their heirs as fairly as possible.

This system is built on a principle of treating heirs in the same generation equally. If a parent with three children dies, the law generally says each child gets an equal one-third share of the assets. It doesn’t care if one child is a business genius and the other two have no interest or experience; its goal is simple division.

The second rulebook is Corporate Law, which has the opposite goal: concentration and continuation. This law is designed to protect the business itself, ensuring it can keep operating, growing, and making money. It favors clear, centralized control and prioritizes the company’s well-being above the wishes of any single owner.

The death of a majority owner forces these two opposing legal missions into a direct clash. Succession law wants to slice the business into pieces for the heirs, while corporate law wants to keep it whole and stable. This fundamental conflict is the source of nearly every problem that follows.

The Accidental CEO: Understanding the Executor’s Impossible Job

The person caught in the middle of this legal crossfire is the executor (also called a personal representative). Appointed by the will or the court, the executor is the legal manager of the deceased’s estate. When the estate’s main asset is a business, the executor effectively becomes the interim CEO and chairman of the board, whether they’re qualified or not.

This creates an immediate and severe conflict of interest due to the executor’s fiduciary duty. This is the highest standard of care in the law, requiring the executor to act with absolute loyalty to the beneficiaries of the estate. Their legal job is to protect the value of the estate’s assets and distribute them to the heirs.

But to protect the business’s value, the executor must also consider the needs of employees, customers, and creditors. An action that is best for the business’s long-term health, like reinvesting profits into new equipment, directly conflicts with the short-term goal of giving cash to heirs who need their inheritance now. This forces the executor into an impossible dual role, serving two masters with opposing goals.

The Court’s Waiting Room: What “Probate” Really Means for a Business

Probate is the formal, court-supervised process of settling an estate. Think of it as a legal audit of a person’s financial life after they die. The court validates the will, officially appoints the executor, and oversees the entire process of paying debts and distributing assets.

For a business, probate is a state of suspended animation. The business interest is a probate asset, meaning it’s locked under the court’s authority until the process is complete, which can take months or even years. During this time, major decisions may be delayed, and the executor’s authority to even run the business must be officially granted by the court.

This delay creates a period of extreme vulnerability. Competitors can poach clients, key employees may leave due to uncertainty, and the business can lose significant value simply by being stuck in legal limbo. This is why the most effective estate plans are designed to keep the business entirely out of the probate court’s reach.

Your Business Structure Is Your Destiny: How the Law Treats Your Company After Death

The single most important factor that determines what happens to your business is its legal structure. A will says who gets your property, but the business entity type dictates what they get, how they get it, and what liabilities come attached. Each structure—sole proprietorship, partnership, LLC, and corporation—has drastically different outcomes.

Sole Proprietorship: The Business Dies with the Owner

A sole proprietorship is the simplest business structure, but it is also the most dangerous for estate planning. Legally, there is no distinction between the owner and the business. They are one and the same entity.

When the owner dies, the business legally ceases to exist. All business assets, like equipment and bank accounts, are automatically lumped into the owner’s personal estate. More importantly, all business debts become personal debts of the estate.

This means business creditors can make claims against the owner’s personal assets to get paid. The family home, personal savings, and other inheritances meant for the heirs can be seized and sold to satisfy business loans or lawsuits. Heirs do not inherit an operating company; they inherit what’s left of the assets after all creditors—both business and personal—have been paid off.

Action	Consequence
Owner of a sole proprietorship dies with $50,000 in business debt.	Creditors can legally force the sale of the owner’s personal car and investments to pay that $50,000 business debt, reducing the heirs’ inheritance.
Heirs try to continue running the business to fulfill existing orders.	They may be operating without legal authority, making them personally liable for any new debts or problems that arise.

Partnerships: When Your New Partner Is Your Old Partner’s Family

In a partnership, the business is owned by two or more people. When one partner dies, the consequences are controlled by the Partnership Agreement. If there is no agreement, state law often dictates that the partnership must dissolve.

Even if the partnership continues, the heirs’ rights are severely limited. The deceased partner’s ownership stake passes to their estate, but heirs typically inherit only the “economic interest”. This means they have a right to receive their share of the profits and the value of the deceased’s capital account, but they get no management or voting rights.

This rule exists to protect the surviving partners from suddenly being forced into business with a deceased partner’s spouse or children, who may have no experience or different goals. The Partnership Agreement is the ultimate authority and often includes a buy-sell provision that forces the estate to sell the interest back to the surviving partners, turning the inheritance into cash.

Limited Liability Companies (LLCs): The Operating Agreement Is King

An LLC is a separate legal entity, so it continues to exist even after a member (owner) dies. What happens next is dictated almost entirely by the LLC’s Operating Agreement. This document is the constitution for the company and controls the transfer of ownership.

Like a partnership, if the Operating Agreement doesn’t specify otherwise, state laws typically grant the heirs only an economic interest. They are entitled to profit distributions but have no say in how the company is run. This protects the surviving members from outside interference.

The greatest advantage of an LLC is its liability shield. The business’s debts are separate from the owner’s personal finances. This means creditors of the business cannot go after the personal assets of the deceased owner or the heirs.

Corporations: A World of Shares, Shareholders, and Strict Rules

A corporation is a distinct legal entity with perpetual existence, so it is completely unaffected by the death of a shareholder. Ownership is held in shares of stock, which are personal assets that pass to the estate and are then distributed to heirs through the will or a trust.

However, while heirs may inherit the shares, their practical power is often heavily restricted by a Shareholder Agreement or a Buy-Sell Agreement. These documents are designed to control ownership and frequently give the corporation or the other shareholders the right of first refusal or even a mandatory obligation to purchase the deceased’s shares.

A special note for S-Corporations: These entities have strict IRS ownership rules, including a limit of 100 shareholders who must be U.S. citizens or residents. If shares are transferred to an ineligible person or an improper type of trust, the company can automatically lose its S-corp tax status. This can trigger devastating tax consequences for the business and all other shareholders.

Feature	Sole Proprietorship	Partnership	Limited Liability Company (LLC)	Corporation (S-Corp/C-Corp)
Legal Status on Death	Ceases to exist	Dissolves unless agreement says otherwise	Continues to exist	Continues to exist
Heir Liability for Debts	*High* (Personal assets are at risk)	Potential liability for estate’s share of debts	*Limited* (Personal assets are protected)	*Limited* (Personal assets are protected)
Heir Management Rights	None (business is gone)	Economic rights only (no voting)	Economic rights only (no voting)	Depends on Shareholder Agreement
Governing Document	Will / Trust	Partnership Agreement	Operating Agreement	Shareholder Agreement / Bylaws

The Players and the Power Plays: Who’s Who in a Business Succession

When an estate inherits a business, a new cast of characters is forced onto the stage. Each has a different role, different motivations, and a different definition of success. Understanding these players is key to anticipating the conflicts that are almost certain to arise.

The Decider-in-Chief: The Executor

The executor is the legal representative of the estate, appointed by the will or the court to manage the entire process. They are the central figure with the legal authority to take control of the business interest, vote the estate’s shares, and make critical decisions about its future.

Their job is to follow the will, pay all debts and taxes, and distribute the remaining assets to the beneficiaries. They are bound by a strict fiduciary duty to act in the best interest of the heirs. This duty is the legal foundation for nearly all disputes, as heirs can sue the executor for mismanagement or self-dealing.

The Inheritors: Heirs and Beneficiaries

Heirs and beneficiaries are the people entitled to receive property from the estate. Their primary right is to receive their inheritance fairly and to be kept informed by the executor about the estate’s progress. They have the power to challenge the executor’s actions in court if they believe something is wrong.

A major source of conflict is the gap between what heirs expect and what they legally receive. They may inherit an economic interest in the business but are often shocked to learn they have no right to walk in and start making decisions. Their power is indirect, exercised through the executor who is supposed to be acting on their behalf.

The Survivors: Partners and Co-Owners

For businesses with multiple owners, the death of one partner creates a new, and often unwelcome, business relationship with the executor. The surviving owners’ main goal is to keep the business running smoothly and protect it from the interference of inexperienced heirs.

Their rights are not defined by the deceased’s will but by the company’s foundational legal documents, like a Partnership or Shareholder Agreement. These agreements often contain buyout clauses that give them the right to purchase the deceased’s share from the estate, effectively keeping ownership within the original group.

The Outer Circle: Employees, Customers, and Creditors

The stability of the business depends on a wider network of stakeholders. Employees need reassurance about their job security to prevent a talent exodus. Customers need to know the business is stable, or they will take their business elsewhere. Vendors need to be confident they will be paid, or they may cut off critical supplies.

The executor must manage communication with all these groups to preserve the company’s value. Finally, creditors of the deceased have a legal right to be paid from the estate’s assets before any money or property is distributed to the heirs.

Mistakes to Avoid: The Minefield of Conflicts

The intersection of family, money, and business is a breeding ground for conflict. The most common and dangerous mistake is appointing an executor who is also a major beneficiary, as this creates an immediate conflict of interest.

Self-Dealing on Valuation: An executor who is also an heir might be tempted to undervalue the business. A lower valuation means a lower estate tax bill, which benefits them personally. However, this can harm other beneficiaries if it reduces the price in a mandatory buyout or unfairly skews the distribution of assets.
Ignoring the Duty of Impartiality: An executor cannot favor their own interests. For example, an heir-executor who was active in the business might use their power to ensure they gain full control, while ignoring the wishes of other heirs who would prefer to sell the company and receive cash.
Lack of Transparency: The biggest driver of litigation is poor communication. When an executor fails to provide regular updates and clear financial accountings, beneficiaries assume the worst. This information gap breeds suspicion that the executor is hiding something or mismanaging funds, often leading to costly court battles to force disclosure or have the executor removed.
Misunderstanding Fiduciary Duty: The executor’s duty is to the estate and all its beneficiaries, not just to their own personal wishes. Making decisions that benefit one heir at the expense of another is a direct breach of this duty and can result in the executor being held personally liable for any financial damages.

The Probate Gauntlet: How to Manage a Business in Legal Limbo

The probate process can feel like running a marathon while the business is on fire. It’s a long, formal, and public process that can take anywhere from six months to several years. During this time, the executor has the monumental task of not just preserving the business’s value, but actively managing it under the watchful eye of the court.

Step 1: Seizing Control and Stabilizing the Ship

The executor’s first 100 days are critical. Their initial actions can determine whether the business survives or collapses.

File the Will and Get Appointed: The process begins when the executor files the deceased’s will with the local probate court and petitions to be formally appointed. The court will issue a document, often called “Letters Testamentary,” which is the executor’s official proof of authority. This document is the key to everything that follows.
Secure Legal Authority to Operate: An executor does not automatically have the right to run a business. This power must be explicitly granted in the will or obtained through a court order. Operating the business without this authority can make the executor personally liable for any losses the business suffers.
Appoint Interim Management: Unless the executor is an expert in the industry, they must immediately appoint a competent person to run the day-to-day operations. This could be a trusted key employee, a surviving partner, or an outside consultant. This person keeps the business running while the executor handles the legal and financial oversight.
Gain Control of Finances: One of the first emergencies is that business bank accounts are often frozen when the bank learns of the sole signatory’s death. The executor must use their Letters Testamentary to open a new bank account in the name of the estate to manage cash flow, pay bills, and, most importantly, make payroll.

Step 2: The Valuation Imperative: Putting a Price on the Legacy

Before any major decisions can be made, the executor must get a formal, professional valuation of the business. This isn’t just a suggestion; it’s a legal requirement for filing the estate tax return with the IRS. A certified appraiser will determine the business’s “fair market value,” which is the price it would sell for between a willing buyer and seller.

Valuation experts typically use a combination of three main methods:

Asset Approach: This method calculates the value of the business by adding up all its assets (like real estate and equipment) and subtracting its liabilities. It’s best for asset-heavy companies or those that are no longer profitable.
Income Approach: This is often the most important method for a profitable business. It values the company based on its ability to generate future income or cash flow. The value is essentially the present worth of all the money the business is expected to make in the future.
Market Approach: This method values the business by comparing it to similar companies that have recently been sold. Finding good comparisons for a private, closely-held business can be difficult, which sometimes limits the usefulness of this approach.

A critical part of this process for estate tax purposes is the application of valuation discounts. An ownership interest in a private company is not as valuable as the same percentage in a public company. Therefore, appraisers apply a Discount for Lack of Control (because a minority owner can’t dictate policy) and a Discount for Lack of Marketability (because private shares are hard to sell). These discounts can significantly reduce the taxable value of the business.

Step 3: Paying Debts and Taxes

The executor must notify all known creditors of the death and publish a notice to alert any unknown creditors. All valid debts of the deceased and the business must be paid from the estate’s assets before any property can be distributed to the heirs.

The biggest financial threat is often the federal estate tax. This tax is levied on the total value of the estate, and the business is often the largest asset. The tax is due in cash within nine months of death, which creates a huge liquidity problem for estates holding an illiquid business. This is often called the “forced sale” problem, where a successful, valuable business has to be sold at a discount simply to raise the cash to pay the IRS.

Step 4: Distributing or Selling the Business

After all debts and taxes are paid, the executor’s final job is to distribute the assets. If the will directs the business to be passed to the heirs, the executor will legally transfer the ownership documents (stock certificates or LLC membership interests) to them.

If the will directs a sale, a buy-sell agreement is triggered, or a sale is needed to pay taxes, the executor will manage the entire sale process. They are responsible for finding a buyer, negotiating the price, and distributing the cash proceeds to the beneficiaries. Once this is done and a final accounting is approved by the court, the probate process is officially closed.

The Proactive Playbook: Legal Tools to Prevent Chaos and Preserve Wealth

The turmoil that follows a business owner’s death is almost always a failure of planning, not an unavoidable tragedy. A powerful set of legal and financial tools exists specifically to bypass the probate process, eliminate uncertainty, and ensure a smooth, private, and immediate transfer of power. These tools work together as an integrated system.

The Master Strategy: A Comprehensive Succession Plan

A succession plan is the master blueprint for the future of the business. It’s not just a single document, but a holistic strategy that addresses every aspect of the transition. A complete plan has five essential components:

Strategic Business Plan: This outlines the company’s vision and goals for the next five-plus years, ensuring the next leader has a clear roadmap to follow.
Owner’s Financial Plan: This ensures the owner can afford to retire or step away without needing to drain money from the business, giving the next generation the resources they need to succeed.
Ownership Transition Plan: This details the specific legal and tax strategies for transferring the ownership interest, often using trusts and gifting to maximize tax efficiency.
Leadership Development Plan: This identifies and trains the next generation of leaders, whether they are family members or key employees, ensuring they are fully prepared to take over.
Governance Structure: This establishes how decisions will be made after the transition, often using a formal board of directors to provide objective oversight and a family council to manage family issues.

The Ironclad Contract: Buy-Sell Agreements

A buy-sell agreement is a legally binding contract between business owners that predetermines what happens to an owner’s interest when they die, become disabled, or retire. It is the single most effective tool for preventing ownership disputes. It creates a private market for an otherwise illiquid asset and provides certainty for everyone involved.

There are three main types:

Cross-Purchase Agreement: The surviving owners are individually obligated to buy the deceased owner’s shares from their estate.
Redemption Agreement: The business entity itself is obligated to buy the deceased owner’s shares.
Hybrid Agreement: A flexible model that often gives the surviving owners the first option to buy, with the company required to purchase any remaining shares.

A strong buy-sell agreement must clearly define the triggering events, establish a non-negotiable valuation method, and, most importantly, specify how the purchase will be funded.

The Financial Fuel: Life Insurance

A buy-sell agreement is just an empty promise without a funding mechanism. Life insurance is the financial engine that makes these agreements work. The business (for a redemption agreement) or the individual owners (for a cross-purchase agreement) buy life insurance policies on each other.

When an owner dies, the tax-free death benefit provides the immediate cash needed to purchase their shares from the estate. This prevents the surviving owners or the business from having to drain working capital or take on massive debt to fulfill their contractual obligation. A separate tool, Key Person Insurance, is a policy the business owns on a critical owner or employee. The payout compensates the business for the financial loss, providing liquidity to hire a replacement and stabilize operations.

The Probate Bypass: Using Trusts for Instant Control

Trusts are the ultimate tool for avoiding probate and ensuring a seamless transition. A Revocable Living Trust is the most common vehicle used for business succession. The business owner transfers their ownership interest into the trust during their lifetime, naming themselves as the trustee to retain full control.

They also name a successor trustee who will take over upon their death. Because the trust owns the business—not the individual—the asset is not part of the probate estate. The moment the owner dies, the successor trustee takes control of the business immediately, privately, and without any court involvement. This eliminates delays and ensures the business continues to operate without missing a beat.

Do’s of Proactive Planning	Don’ts of Proactive Planning
Do start planning early and review the plan regularly.	Don’t assume family harmony will overcome financial disputes.
Do involve a multi-disciplinary team of legal, financial, and tax advisors.	Don’t create a buy-sell agreement without a secure funding mechanism like life insurance.
Do communicate the plan openly with all stakeholders, including family and key employees.	Don’t rely on a simple will to transfer a business; use a trust to avoid probate.
Do get a professional business valuation to inform the plan.	Don’t name an executor with a clear conflict of interest, such as an heir who stands to benefit from certain decisions.
Do align your personal estate plan with your business succession plan.	Don’t forget to plan for leadership development and not just ownership transfer.

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Real-World Disasters and Successes: Lessons from the Trenches

Legal theory comes to life in the stories of families who have faced this crisis. These case studies reveal the devastating consequences of failing to plan and the powerful stability that comes from putting the right legal tools in place.

Scenario 1: The Corporate Freeze-Out (Robinson v. Langenbach)

In this Missouri case, a founder retired and left his company in equal one-third shares to his three children. For years, one daughter, Joan Robinson, served as president. Her two siblings, unhappy with her performance, secretly conspired to remove her.

At a board meeting, they used their combined two-thirds voting power to fire her as president, cut off her salary, and lock her out of the company. The brother then made himself president and gave himself a raise. Robinson sued, and the court found the siblings had acted in bad faith to “freeze out” a minority owner from the financial benefits of her ownership.

Action	Consequence
Siblings hold a 2-to-1 majority vote on the board of directors.	They have the legal power to control management decisions, including hiring and firing the president, even if that president is also a sibling and equal shareholder.
No shareholder agreement exists to define roles or protect minority owners.	The majority can legally oppress the minority, leaving litigation as the only, and very expensive, option for the frozen-out heir.

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This case is a stark lesson that equal ownership does not mean equal power. Without a shareholder agreement that defines management roles and protects minority rights, a majority faction can legally sideline other owners.

Scenario 2: The 50/50 Deadlock and Desperate Measures (Coster v. UIP Companies, Inc.)

This Delaware case shows the danger of a 50/50 ownership structure without a tie-breaking plan. After one of the two equal owners died, his shares passed to his widow, Marion Coster. She and the surviving owner, Steven Schwat, immediately deadlocked and could not agree on how to run the company.

To break the deadlock and avoid a court-appointed custodian, Schwat sold a small number of new shares to a third executive. This action diluted Coster’s ownership from 50% to a minority position, giving Schwat control. The court upheld the sale, ruling it was a fair response to the “existential crisis” of the governance deadlock. The result for the heir was a disaster: her ownership was diminished, and she lost control.

Situation	Outcome
A 50/50 ownership structure with no buy-sell or deadlock agreement.	The death of one owner creates a governance paralysis, as the heir and the surviving owner have equal voting power and cannot make decisions.
The surviving owner takes a defensive action to break the deadlock.	The court may allow an action that dilutes the heir’s ownership if it is deemed necessary to save the business from the crisis created by the deadlock.

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This case proves that without a buy-sell agreement, an ownership deadlock can empower a surviving partner to take drastic measures that permanently harm an inheriting heir.

Scenario 3: The Proactive S-Corp and the Tax-Free Fortune (The Haught Family)

This case study provides a powerful example of what smart, proactive planning can achieve. The Haughts owned a successful S-corporation and wanted to transfer it to their children while minimizing taxes. Instead of a simple gift, their advisors used a sophisticated tool called an Intentionally Defective Grantor Trust (IDGT).

The Haughts sold 100% of their company stock to an irrevocable trust for their children in exchange for a promissory note. For estate tax purposes, the company was out of their estate. But for income tax purposes, the trust was “defective,” meaning the Haughts were still personally responsible for paying the income taxes on the S-corp’s profits.

This brilliant strategy accomplished two things. First, all future growth in the company’s value happened inside the trust, completely shielded from future estate taxes. Second, by paying the income taxes for the trust, they were essentially making an additional, massive, tax-free gift to their children every single year. This allowed them to transfer millions of dollars in wealth with maximum tax efficiency.

Strategy	Result
The business is sold to a specially designed trust (IDGT) for the heirs.	The value of the business is “frozen” for estate tax purposes, and all future appreciation is transferred to the next generation tax-free.
The parents (grantors) pay the income tax on the trust’s earnings.	This acts as a recurring, tax-free gift to the heirs, further increasing the amount of wealth transferred outside of the taxable estate.

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Frequently Asked Questions (FAQs)

Q1: Am I personally responsible for the debts of a business I inherit? No, not usually. For LLCs and corporations, you are protected. However, if you inherit a sole proprietorship, the business debts become estate debts, and your personal inheritance could be used to pay them.

Q2: Can the executor sell the business if I want to keep it? Yes, potentially. The executor must act in the estate’s best financial interest. If a sale is necessary to pay taxes or debts, or if the will allows it, they can sell the business against your wishes.

Q3: I inherited shares in the family LLC. Can I start making decisions? No, probably not. You likely inherited only an “economic interest”—the right to profits. Management and voting rights are controlled by the LLC’s Operating Agreement and typically do not transfer to heirs automatically.

Q4: How is the business valued for estate taxes? It is valued at its “fair market value” on the date of death. Professional appraisers use income, asset, and market-based methods to determine this value, which is then often reduced by discounts for lack of control and marketability.

Q5: What is a buy-sell agreement? It is a binding contract between owners that predetermines who buys a deceased owner’s interest, at what price, and how it’s funded. It is the best tool to prevent ownership disputes and ensure a smooth transition.

Q6: What happens if the estate can’t afford to pay the estate taxes? The executor may be forced to sell the business, often at a discount, to raise the cash needed to pay the IRS. This is a common crisis that proper planning with life insurance is designed to prevent.

Q7: How does a trust help avoid problems? A trust owns the business, so it is not part of the probate estate. Upon the owner’s death, the successor trustee takes control immediately and privately, bypassing the entire court process and its delays and costs.

Q8: My siblings and I inherited the business and can’t agree on anything. What now? You should seek outside help immediately. A professional mediator specializing in family business disputes can facilitate communication and help you find a solution, which is much cheaper and less destructive to relationships than going to court.

Q9: What is key person insurance? It is a life insurance policy the business owns on a critical owner or employee. The death benefit is paid to the business to cover financial losses, fund a buyout, or hire a replacement, ensuring operational stability.

Q10: Can I refuse to inherit the business? Yes. You have the right to “disclaim” or refuse an inheritance. This is a formal legal process that must be done correctly, and you should consult an attorney before making this decision.