One of the primary reasons business owners set up corporations and limited liability companies (LLC) is to shield their personal assets from debts and other liabilities incurred by the business.
Indeed, corporations and LLCs exist as separate legal entities from their owners, meaning the business itself can acquire assets, enter into contracts, and take on debt. In turn, if a corporate entity is unable to pay its debts, creditors are typically only allowed to go after the company’s assets, not the owners’ personal assets.
However, there are several circumstances in which business owners can be held personally liable for corporate or LLC debts. Sometimes business owners simply make innocent mistakes when running a business that leave them personally liable.
Other times, business owners take deliberate actions that expose them to personal liability, such as using the corporation to promote fraud, failing to observe corporate formalities, or even commingling corporate and personal assets. In any of these circumstances, a court can hold the owners personally liable for the debts and liabilities of the corporate entity. Lawyer types refer to this as “piercing the corporate veil.”
If you’re a business owner who’s thinking of incorporating, or if you already own a corporation or LLC, be aware of the following considerations that can leave you personally on the hook for business debts.
If you cosign on a business loan or personally guarantee a financial obligation for the corporation or LLC, you share responsibility with the company for paying it back. In such a case creditors can come after your personal assets if the business defaults on the loan.
Since many small business owners don’t have a lot of startup capital, you may be asked to use personal property, such as your home or other assets, as collateral on a business loan. If so, the personal property you pledged as collateral can be seized and sold off to pay your company’s creditors.
If you make fraudulent representations or omissions to secure a business loan for your company, you can be held personally liable for those debts. What’s more, if your corporation or LLC was created to further a fraudulent purpose or you made business deals knowing the company wasn’t able to pay for them, you can be convicted of fraud, thereby voiding your personal liability protection.
As a small business owner, you may be tempted to commingle your personal finances with those of your company. It can be something as benign as using a company account to pay your mortgage or depositing a check made out to the company into your own account. In doing this, a court can decide that you’re using your company as an extension of yourself, and therefore you should be held personally liable for its debts.
When you’re working Thrive LawTM on an ongoing basis, we regularly review your financials with you and ensure you’re maintaining your business and personal finances separately as required to maximize the protection of your personal assets.
Corporations and LLCs are legally required to follow certain formalities and observe certain rules. If you fail to treat the business like a corporate entity by not observing these formalities—such as keeping detailed records (minutes) of meetings where important business decisions are made and adopting corporate bylaws—the court can rule your company is nothing but a shell and remove the veil of corporate protection covering your personal assets.
Indeed, maintaining corporate formalities is the single-most important aspect of keeping you safe from business creditors. When you’re working with us as your Creative Business Lawyer®, we offer maintenance packages to help you with this and keep your personal assets safe.
Given all of the complexities surrounding corporations and LLCs, consider consulting with Thrive LawTM, a business law boutique, to make sure you’re not opening yourself up to be personally liable for your business debts. We can not only help you decide which business entity structure is best suited for your situation, we can also help you properly set up and maintain that entity, so your personal assets are protected. We’re here to help!