Inheritance of a share in the authorized capital of an LLC: the Federal Tax Service of Russia for the Novosibirsk region answers questions. Inheritance of a share in the authorized capital of an LLC after the death of one of the participants: procedure, registration procedure, necessary documents Heirs refuse
If at the time of the death of the testator he owned shares in the authorized capital of a limited liability company, then such a share will be included in the inheritance mass as a set of rights and obligations in relation to this company.
If the participants are against
According to Part 6 of Art. 93 of the Civil Code of the Russian Federation and Part 8 of Art. 21 Federal Law dated 02/08/1998 N 14-FZ “On Limited Liability Companies” (hereinafter referred to as the LLC Law), shares in the authorized capital of the company a priori pass to the heirs of the citizens who were its participants, unless otherwise provided by the company’s charter.
The specified document may also stipulate that the transfer of a share is permitted only with the consent of the remaining participants in the company.
According to Part 5 of Art. 23 of the Law on LLC, if the consent of the participants is not obtained, on the day following the expiration date of the period established by law or the charter for obtaining such consent, the share of the deceased participant passes to the company.
Even if the participants refused to transfer the share to the heirs, the heirs receive a certificate of the right to inheritance, and on its basis they receive the cash equivalent of the share.
In this case, the company pays the heirs the actual value of the share, determined on the basis of the financial statements for the last reporting period preceding the day of death of the participant, including by depositing it with a notary (Appeal ruling of the Moscow City Court dated January 28, 2015 in case No. 33- 2311), or with their consent gives them property of the same value in kind.
Security and management
Protection and trust management of shares in the authorized capital of an LLC is established for the normal course of work of the company during the period necessary for the heirs to enter into inheritance.
An application for the establishment of trust management of the shares of the deceased may be submitted to a notary:
- from other members of society;
- one or more heirs;
- representatives of the guardianship and trusteeship authority (in the case where among the interested parties there is a minor or another person over whom guardianship or trusteeship has been established);
- creditors;
- representatives of local government;
- other interested parties.
If these persons do not exercise their right, other members of society will be able to accept management decisions without their consent (Resolution of the Twenty-first AAS dated July 19, 2016 in case No. A83-5810/2015).
In order to identify inherited property, the notary sends requests to various organizations in which it may be located, including the organization whose owner (or co-owner) was the deceased. And the recipients of the request, in turn, are obliged to provide him with information about such property.
If the company does not provide information, the heir has the right to apply to the court with a claim for recognition of ownership of the share (Appeal ruling of the Moscow City Court dated June 26, 2015 in case No. 33-22283/15).
To conclude a trust management agreement, a notary, at his discretion, may:
- agree on the candidacy of the trustee with the heirs;
- appoint a trustee yourself.
After this, the corresponding agreement is concluded by the notary (as the founder of the management) and the person chosen to manage the share.
If, in order to establish trust management, the company's charter provides for obtaining the consent of the participants, then the person who applied to the notary for the establishment of trust management sends a request to the company to obtain such consent. If consent is not received within the period established by the charter, the share passes to the company, and trust management is not established.
If there are minors among the heirs, prior permission from the guardianship and trusteeship authority is required to enter into an agreement.
To make appropriate changes to the Unified State Register of Legal Entities on the establishment of trust management of shares of the authorized capital of the company, the notary sends to the registration authority an application drawn up in the prescribed form and a notarized copy of the death certificate of the testator.
Registration of shares by heirs
According to Part 10 of Art. 21 of the Law on LLC, if the company’s charter provides for the need to obtain the consent of the company’s participants to transfer a share to a third party, such consent is considered received if all the company’s participants, within thirty days or another period determined by the charter from the date of receipt of the application, submitted written statements about consent to transfer the share or within the specified period, written statements of refusal to give consent to transfer the share are not submitted.
In accordance with Part 16 of Art. 21 of the Law on LLC within three days from the date of receipt of the consent of the participants of the company and the body implementing state registration changes made to the Unified State Register of Legal Entities must be notified of the transfer of shares by sending application P14001.
According to Methodological recommendations on the topic “On inheritance of shares in the authorized capital of limited liability companies”, approved at a meeting of the Coordination and Methodological Council of Notary Chambers of the Southern Federal District, S-K, Central Federal District of the Russian Federation 05/28–29/2010, to register inheritance rights to a share in the authorized capital of LLC, heirs need submit the following documents:
- charter (copy of the charter) of the LLC as amended in force at the time of opening of the inheritance;
- an extract from the Unified State Register of Legal Entities, received no earlier than five working days before presenting it to the notary;
- documents confirming that the share belongs to the testator (decision to create an LLC, certificate of inheritance, certificate of ownership of the marital share, court decision, minutes of the general meeting of participants, agreement or other document on the basis of which the participant acquired the share);
- a certificate from the company confirming payment of the share by the testator;
- report on the market value of the share determined by the appraiser (expert);
- list of society members.
If among the heirs there is a spouse of the deceased, the spousal share may first be allocated from the latter's share. In this case, the part of the share that remains after the allocation of the marital share will be inherited.
To formalize his rights, the surviving spouse submits to the notary:
- a statement that the regime of joint property of the spouses has not been changed by the marriage contract;
- documents confirming the acquisition of a share during the marriage and on a compensated basis.
For the marital share, the notary issues a certificate of ownership to the surviving spouse. The specified document is issued regardless of whether the deadline for issuing a certificate of inheritance has arrived. Lawyers https://site/wp-content/uploads/2017/11/logo1-300x40.png Lawyers 2016-12-10 18:10:31 2016-12-10 18:10:31 Inheritance of a share in the authorized capital of an LLC
A limited liability company is the most common organizational and legal form in which Russian small enterprises are formed and operate. Medium and even large businesses are also often organized as LLCs. Unfortunately, this OPF is also the most popular among fly-by-night companies, whose existence is fleeting and has non-legal purposes.
Nevertheless, honest business exists in Russia and is aimed at long-term existence, constant development, and building reliable, sustainable enterprises. The owners of such organizations are interested in forming the continuity of generations. In these conditions, a pressing issue is the inheritance of a share in an LLC after the death of one of the participants.
A businessman who expects to pass on his business to children or other reliable people begins to prepare them from the very beginning (as soon as possible). After receiving their education, the “golden youth” are included in the Society’s membership or enter the top management.
In this article:
Share in the authorized capital of LLC
It is not uncommon for a business to suddenly lose its owner (or one of them), and the transfer of the helm is carried out after his death. This is where the rules of inheritance law come into play. In this article, we will analyze in more detail the algorithm of actions in the case when it is necessary to transfer a share in an LLC by inheritance.
Ownership of a business formed in the form of a limited liability company is carried out through a share in the authorized capital. Nominal size authorized capital is indicated in the Company's Charter.
It can also be viewed in the extract from the Unified State Register of Legal Entities on the official website of the Federal Tax Service. In the case of a single participant, the share is one hundred percent, and when the enterprise has several owners, it is expressed as a fraction or percentage.
A share has a nominal value and an actual value. The nominal value corresponds to the part of the authorized capital proportional to the interest owned by the participant. Valid determined by data accounting and expresses the real value of the enterprise.
The transfer of a business is carried out by transferring a share from one person to another.
Exist various ways of this alienation:
- sale;
- donation;
- exit from the LLC with the transfer of shares to the Company;
- inheritance.
The first three options are quite ordinary, their procedure has been worked out and clearly regulated.
As for the right to inherit a business, certain procedural issues arise here that have not found clear regulatory regulation, which will be discussed later in this article.
A limited liability company should not be confused with other forms of organization, such as a cooperative, Joint-Stock Company. In the first option, ownership/participation is carried out through a share, and in the second - through shares.
Grounds for inheriting a share after the death of a member of the Company
Any legally significant event gives rise to certain legal consequences. Inheritance of a share in the authorized capital of an LLC is associated with the event of the death of the testator and is based on certain documents.
The composition of these documents depends on the initial data and conditions under which succession occurs:
- are there any heirs, what is their number;
- whether a will was drawn up;
- what is the content of the Company's Charter.
Depending on the answers to the above questions, one or another action plan is outlined.
Inheritance of a share in an LLC by law
Civil Code Russian Federation rules have been established for the distribution of inheritance among the relatives of the deceased. The basis for the division of inheritance according to the law by the rule-makers is the principle of degree of kinship.
The queues are arranged in a descending line:
Queue | Compound |
1st | the closest relatives are children and parents (spouses are not blood relatives, but they are also identified primarily as heirs); |
2nd | brothers and sisters, nephews, grandparents; |
3rd | aunts and uncles, cousins; |
4th | great-grandparents; |
5th | cousins and granddaughters, grandparents; |
6th | great-great-grandsons and great-granddaughters, nephews of uncles and aunts; |
7th | Stepsons and stepdaughters, stepfather and stepmother. |
Applicable to business inheritance, the first three stages are very real heirs. While distant relatives after the fifth stage rarely learn about the death of the testator or are not active.
Elderly people also do not agree to inherit the enterprise and, accordingly, do not enter into inheritance, due to the fact that participation in the Company is more of a responsibility than property benefits.
To manage an enterprise you need to have a lot of strength and energy, and therefore, inheritance by law is not the preferred way to transfer the business.
Inheritance of a share in an LLC by will
The most reasonable and expedient way to transfer the Company (or part thereof) to a third party in the event of the death of a participant is by will.
This option has the following advantages:
- a member of the Society can choose a successor during his lifetime and prepare him for upcoming tasks and functions;
- a will allows you to bypass the legal order and transfer the reins of the business to any worthy relative or other person;
- When drawing up a will, you can agree in advance on the candidacy of the future co-owner with the other participants of the LLC, which will avoid possible controversial situations and the refusal of the co-founders to transfer the share to the heir.
Thus, in a situation with inheriting a share in a limited liability company, a will removes many problems. This method of transferring inherited property is the most correct and consistent for those who are interested in preserving the business and the smooth entry of their successor into it.
Deadline for accepting inheritance
There is no special deadline for inheriting a share in an LLC. It is the standard 6 months established by law.
During this period, it is necessary to accept the inheritance (enter into it) by one of two actions or both of them:
- Documented (submit a completed application to a notary).
- In fact (start using property from the inheritance mass).
It should be noted, however, that despite accepting an inheritance through the use of one thing or another, contacting a notary office is necessary in most cases.
Moreover, when inheriting a share, the beginning of using this type of inheritance is very doubtful until a certificate of inheritance is received and a change of participants is registered in the Unified State Register of Legal Entities.
An important nuance regarding the timing of the main actions during business succession is the moment the heir contacts the Company with a notification of his intention to become a member.
There is no specific deadline established at the legislative level. At the same time, taking into account logic and expediency, this must be done not earlier than the end of the deadline for identifying all heirs (to eliminate unnecessary “movements” in the event of new applicants appearing after the application), but also without delay (so as not to let the company slip out of control).
The procedure for registering inheritance rights to a share
No one can interfere with the inheritance of a share in the authorized capital of an LLC. But for the heir to become one of the founders of the Company, it may not be as easy as it seems. It would seem that after receiving a certificate of the right to inheritance, a person already has one foot in the general meeting of participants. But that's not true. The law provides for cases when company owners have the right to restrict the entry of unauthorized persons.
There are no restrictions in the charter
Despite the possibility of establishing restrictions and prohibitions, not everyone uses this. Someone deliberately does not want to introduce them, and someone simply does not pay attention to this right, approving a standard standard charter prepared by some legal office involved in registration support legal entities.
There are no problems with joining the Society with only one participant. This is logical - when there are no co-owners, there is no one to object. Therefore, inheriting an LLC with a single founder is the simplest of all. possible options.
At the same time, in this situation, it is still worth waiting for the distribution of the inheritance among all admitted persons in order to exclude additional re-registrations and enter the Company with all new members at once.
Thus, when inheriting a share in an LLC after the death of a single participant, the Company can turn into a company with several owners.
If there are restrictions
If businessmen are picky and not indifferent to who they do business with, the Charter may stipulate requirements for obtaining prior consent for the heir/heirs of a deceased partner to become a participant. Such conditions must be clearly formulated. Expanded interpretation and “second guessing” of the rules are not allowed.
If the founders, when creating the Company, had the goal of limiting the entry of heirs, then this should be spelled out exactly like that. If only the need for consent is indicated for the sale of shares to third parties, this will not be an obstacle for the successor of the deceased participant.
To enter the company, the applicant (successor) must submit a corresponding notification to the address of the location of the Company.
If all co-owners agree, or none of them raises direct objections within a calendar month, the share will belong to the heir, and changes can be registered in the register.
If at least one is against it, then the company will no longer have to be managed. In this case, the material benefit of the heir will be to receive the actual value of the share within a year, or in a shorter period (if this is stated in the Charter).
When paying the cost of a share, there is a tax nuance. The fact is that this compensation is income. But there is no single position on whether this is income within the framework of an inheritance or not.
At the same time, there are explanations from the Ministry of Finance about both. Society faces a difficult choice. If we assume that receiving the value of the share is not inherited income, then the Company must withhold personal income tax payments from the amount. This may displease the heir.
If we assume that the relationship between the parties exists within the framework of the settlement of inheritance issues, then the entire amount is subject to payment without paying tax. In this situation, there is a risk of tax penalties. The choice remains with the Society.
If you competently defend your position, you can defend the correctness of any of the options, relying on the explanations of the financial department (they are in different periods announced the correctness of the opposite options).
As is known, an action performed in pursuance of clarifications is not subject to punishment government agency. At the same time, it will be safer, simpler and cheaper for an LLC to withhold tax and then argue with the heir, rather than run into tax sanctions and sue the Federal Tax Service.
What to do if banned
If there is a direct prohibition in the LLC Charter on inheriting a share in its authorized capital, no other options are provided for how to buy off the heir.
After receiving an application from the owner of the share, according to the certificate of inheritance, the Company will have to pay the heir the actual value of his share, calculated in accordance with the current legislation (more about this later in the text of this article).
There is, however, one more fallback option. There are situations when the partners of the testator know the person whom the latter has chosen as his successor.
Perhaps such a person is even potentially capable of bringing benefits to the company, and, despite the prohibition in the Charter, the co-owners of the business want to see the heir in their ranks.
In this case, while the inheritance registration procedure is underway, the Company’s participants can convene a General Meeting and decide to amend the Charter and remove the previously established ban. Thus, the problem will be resolved, and there will be no obstacles to entering the governing coalition.
Age limit
Managing a company is for adults. Ownership of the Company by an heir if he is a minor seems very difficult. This situation is quite likely if there is no will and the deceased has small children.
However, lack of full legal capacity due to age does not prevent the inheritance of a share in the authorized capital. In this case, the way out of the situation is seen in trust management or performing functions through a guardian until the age of 18.
LLC valuation for inheritance registration
In a situation where the Charter of a limited liability company contains restrictions on the entry of an heir and there are dissenting partners, as well as when there is a direct prohibition in it on inheriting a share in the authorized capital of this Company, the need arises to pay the heir/heirs the actual value of the share. This amount is calculated based on accounting data.
Despite the law in simple language a way to determine the “farm-out”; pricing has certain nuances.
The fact is that in a number of companies, in addition to accounting, there is also management accounting. In the first of them, assets and liabilities are formed in accordance with all PBUs in a strictly formal manner.
However, the real financial condition of the company may have nothing to do with official reporting. However, this discrepancy will not violate the law.
For example, there is such a thing as “depreciation”. According to its standards, any valuable property that has a formally useful life can be fully depreciated, that is, reflected in accounting at zero cost.
However, the real market price of such property can be quite a lot of money, and sometimes even exceed the purchase price (for example, very old but well-preserved real estate). In such a situation, to form a realistic picture, it is simply necessary to assess the market value of the share.
This assessment is essentially a reflection of the capitalization of the business. That is, it expresses the amount that the company is actually worth, and, accordingly, the share in it. Such an assessment is carried out by special companies (appraisal, auditing) that have appropriate membership in a professional SRO.
In practice, assessment can be difficult. All documentation necessary to determine the value of the business is kept by the Company.
The heir does not have access to it until he becomes a member of the management bodies of the LLC. But a priori he will not be a member of such bodies if it comes to paying the cost of the share (unless, of course, he simultaneously works in this company as a chief accountant or director). It turns out to be a vicious circle.
To open this chain, you have to resort to the help of the court. Disputes between heirs and companies are considered in a court of general jurisdiction.
A successor who does not agree with the amount of compensation offered to him may seek judicial protection of his rights and, during the trial, request the necessary documents and petition for an independent assessment (in the form of a forensic examination).
It is not easy to inherit the opportunity to own part of an enterprise. Often, successors are content only with receiving a “ransom”—payment of the actual value of the share. And it is not always expressed in the real value of the corresponding part of the business.
For the stated reason, if a businessman has a business, he can transfer his business to a relative or other worthy person after death, you need to start preparing the ground for this during your lifetime:
- Present the candidacy to your partners.
- Enlist the support of co-owners, obtain guarantees from them not to interfere with the entry of the selected person into the Society.
- Make sure that the current version of the Charter does not contain restrictions or prohibitions on inheriting a share.
By following the indicated precautions, problems can be avoided.
However, it is better to start introducing “your” people into the Company while they are still alive and in full health. Give them a small share to start with (sell or donate).
Being a participant even with a small percentage in the authorized capital, a person can already participate in General meeting, keep abreast of the Company’s affairs, have access to its documentation.
VladimirInheriting a share in an LLC after the death of one of the participants is a complex procedure that requires legal literacy from the heir and must be carried out with the help of a notary. The lawyer’s task is to explain to the successor the consequences of obtaining the right to own a part in the LLC, as well as to resolve issues when renouncing his part in favor of the rest of the company or third parties.
The procedure for transferring rights is regulated by Russian Federation Law No. 14-FZ. Within the framework of its articles, the conditions for receiving an inherited share are prescribed. The main one is that the heir must meet all the rules of an open society. The inheritor must be competent to manage his share. If an individual does not have such skills, participants may refuse to provide him with a share. This is done in order to avoid negative consequences for the financial stability of the organization due to its incompetent management.
Features of the procedure
There are three forms of inheritance:
- full-fledged;
- limited;
- prohibition of inheritance.
With a full form of inheritance, the heir does not need permission from other LLC participants to carry out the activities of the participant. The inherited person simply starts activities without any proceedings. This form of transfer is very rare both in the Russian Federation and abroad, since the heir may be an incompetent person. Management by such a participant can lead to a deterioration in the condition of society, up to and including its complete ruin.
The most preferred option today is a limited form of share transfer. In this case, it may or may not be inherited. Everything depends on the decision of other participants in the production cooperative. The heir, together with the notary, must contact them for an appropriate decision. Within 30 days, members of the organization must respond with consent or refusal.
If consent is given, the heir becomes a full participant in the organization and conducts all affairs on an equal basis with other participants. If the decision is positive, he is usually given the right of trust management.
In case of refusal, the heir is entitled to a compensation payment for his share. It should be equal to the actual cost calculated by the expert. The expert must be a third party not involved in the affairs of the organization.
If the amount of payments seems unfair to the inheritor, he can try to challenge the decision in court.
Differences between forms of inheritance:
- Not limited. Participant consent is not required.
- Limited. The consent of the LLC members is required.
- Prohibition of inheritance. Compensation is paid, but you cannot become a member of the company.
Who can be an heir and what to do if there are no heirs
The heir can be any person specified by the previous (deceased) owner in the will. Transferring a share through a will is the preferred method of inheriting it. With it, there is less likelihood of refusal by other participants in society. When transferring a share through a will, the owner usually chooses a qualified successor who can continue his legacy. In this case, the heir can easily obtain the consent of other participants to take over his part of the property and begin to fully participate in the affairs of the LLC.
If there is no will, the inheritance of an LLC with a single founder or the share of an organization with several shareholders is inherited according to all the rules for the transfer of property, that is, it is given to the closest relative. Most often this is a wife, but it can also be a child or any distant relative. Priority relatives are those who are closely related to the deceased. These include natural and adopted children, parents, spouse. If there are none, the inheritance will be divided among more distant relatives, taking into account the legal order.
When inheriting a share in an LLC after the death of the only participant (if the heirs have not properly completed the documents within 6 months or there are no legal successors), the share in the LLC passes entirely to the members of the company. The remaining participants must hold a council at which they will decide on the redistribution of this share. There are three options for disposing of the remaining portion:
- The share is redeemed. Capital becomes less by the amount of its value.
- The share is resold (in whole or in part) to one or more members of the company or third parties. The LLC has 30 days to transfer rights.
- The portion is distributed equally among the remaining participants.
When the heir is a minor, the right to manage the share passes to his official representative. You can sell the share of a minor by obtaining permission from the guardianship authorities. If the heirs are a parent and a child, when the shares in the LLC are transferred by inheritance, the rights are divided in half.
The procedure for accepting a share by inheritance: where to start, stages, documents
If individual claims to receive an inheritance, it must first contact a notary. The specialist will issue a special certificate. This document is required to accept the inheritance. Next you need to prepare:
- passport;
- proof of family ties or a will;
- certificate confirming the death of the testator;
- certificate from the place of residence of the deceased.
These papers are presented during any inheritance procedure. It is also necessary to prepare a package of documents related to the LLC:
- certificates confirming payment of the share in the LLC by the previous owner (contribution of the share by a relative of the applicant);
- documents confirming ownership of shares;
- charter document of the company;
- a list of all participants in an open society.
If the company has not imposed a ban on inheritance, then immediately after contacting a notary with these documents, you can calculate the value of the share. It is recommended to do this before contacting a legally authorized person, so as not to delay the procedure. Based on the cost estimate, the amount of state duty that must be paid in accordance with the law will be calculated.
Close relatives pay 0.3%, no more than 100 thousand rubles, and distant relatives are subject to personal income tax equal to 0.6%, but no more than 1 million rubles.
After paying the tax interest, ownership is registered and information is entered into Rosreestr in accordance with the changes that have entered into force.
If ownership needs to be agreed upon, then before applying for registration of a participant with Rosreestr, you must, together with a notary, submit an offer to the company or to all its participants in order to obtain consent to join the organization. In case of refusal, compensation is calculated and awarded to the heir. If he agrees, the legal successor is sent to Rosreestr and submits a corresponding application, the algorithm for filling out which will be explained by employees of the Rosreestr branch or a notary.
In case of a ban on inheritance, there is no need to contact the organization's members. It is enough to evaluate the share and obtain payment of its value.
Trust management of shares
Trust management (TD) is a document that allows you to participate in the affairs of an LLC until the full receipt of a share by inheritance. This moment does not exceed six months. The deed of ownership is issued to the heir to the LLC share until the circumstances of its transfer are clarified.
DU is prescribed in the following cases:
- the heir has not yet received ownership rights, since the transfer of property to legal order the death of the owner has not yet occurred;
- Participants in an open society are considering the issue of accepting the heir into the society.
A trust is established based on a decision of the company or, if the only participant has died, with the help of a notary. Both the heir himself and other members of the society can ask for a trust.
A person who has received the right of trust management can be a full participant in the organization. There are some restrictions:
- It is prohibited to dispose of the organization’s property (transfer, sell) unless there is appropriate permission.
- You cannot conduct business to the detriment of the interests of other participants and the LLC as a whole (to be discussed separately).
- It is imperative to keep reports on the activities performed and submit them to the founder of the management company (society).
It is recommended that the trust management agreement be spelled out in detail to avoid excess of authority and to clearly indicate all existing restrictions. The optimal case of trust management is when the participants of the organization themselves establish it, recognizing the heir and allowing him to conduct business even before receiving full ownership rights. In this case, the manager’s additional right to dispose of the property is usually prescribed.
The trustee has the right to decide on the appointment of managers of the organization. Thus, even nominating oneself for the post of director is not prohibited by law.
Prohibition on inheritance
In some cases, LLC participants discuss the issue of inheritance in advance and exclude the possibility of transferring a share under a will or to one of the relatives. In this case, the heir does not have the right to join the circle of members of the society. The procedure for considering his role (whether to allow him to take a share or not) is not discussed. The heir is immediately informed of the impossibility of conducting business.
However, the prohibition on entering into inheritance does not mean that the person who is the inherited person does not receive anything. As in the case of the refusal of members of the company to accept a new participant, the heir is entitled to monetary compensation. It is assigned according to expert calculations.
There are cases, for example, when the heir remains dissatisfied with the payment given to him and demands larger size compensation. To avoid this, it is recommended to establish a meeting and conduct a full collection and analysis of all accounting reports. It is on the basis of accounting that payments are made to the heir. Clearly defined calculation steps and systematized accounting will help avoid problems in the event of litigation.
Subtleties of the procedure
The main subtleties of the procedure are related to obtaining consent to take ownership and payments in case of refusal to accept an heir into the LLC. In the first case, you need to send a request to all participants in a special way; in the second, you need to involve a third party who will calculate the amount of payments according to a certain formula.
A request to participants to consider accepting a new member must be submitted in writing. Either a general offer is sent to official address society, or a separate letter for each shareholder. The application must be drawn up in the presence of a notary. No more than 30 days should pass from the moment of sending to receiving a response. If this period is exceeded, you need to contact a notary or lawyer. An expert will advise you on the course of action.
Calculation of the actual cost of the share also deserves special attention. It is carried out according to the formula:
As a result, we get the cost. It is imperative to use the services of a financial expert so that he can correctly determine the cost, taking into account all the information from the accounting department. Only approved financial reports organizations.
Thus, when one of the LLC members dies, his share can be distributed among the members, sold, redeemed, or inherited. A person who has the right by inheritance to become a member of the company can either go through all the procedures and become a full member of the organization, or receive a refusal and compensation payment. Since the procedure for preparing documents and taking ownership is quite complicated, all actions should be performed based on the recommendations of a personal lawyer (notary). It is he who issues the certificate of inheritance.
Among the inherited property various types, there is one that is not inherited so often. In addition, the process of accepting such an inheritance differs from the standard one due to the specifics of the property being accepted.
For example, inheriting a share of an LLC raises many questions not only among the heirs, but also among the owners of the remaining shares. Few people want to share the business with the heirs of the share owner and bring them up to date.
Inheritance of a share in an LLC: laws
It is immediately worth noting that the transfer by inheritance of a share in an LLC is regulated not only by the Civil Code of the Russian Federation, as in cases with other types of inheritance. Here, Federal Law No. 14-FZ dated 02/08/1998 “On Limited Liability Companies” plays an important role. However, it contains a clause “unless otherwise provided by the Civil Code of the Russian Federation.” It follows that two legislative acts regulating the process of inheriting an LLC share are taken into account. Therefore, in the process of inheriting a share in the authorized capital of an LLC, you should pay attention to their provisions.
In the inheritance process, a huge role is played by the company's charter, which regulates the work of the LLC, as a document of a local nature.
Inheritance of a share in the authorized capital
So, a share in the authorized capital of an LLC is inherited in the event of the death of the testator. This is possible in two ways:
- by law, when relatives automatically become heirs in the absence of a will;
- according to a will, if one was drawn up and discovered after the death of the testator.
In general, the development of the situation with the acceptance of an inheritance depends on the provisions specified in the charter and the decision to allow the heir to join the owners of other shares. There may be several options here:
- The charter stipulates the possibility of unimpeded transfer of a share in the authorized capital by inheritance. In this case, the heir can calmly register an inheritance for the share and become one of the owners of the LLC;
- The charter states that without the consent of the owners of all shares, the heir will not be able to become a co-owner of the company.
The order of actions of the heir directly depends on what is said about inheritance issues in the charter of the LLC.
Procedure for accepting inheritance of a share in the authorized capital
So, if the heir decides to inherit a share in the authorized capital of the LLC, he needs to:
- Draw up an application for acceptance of the inheritance from a notary who must open or is already handling this inheritance case.
- Collect the documents necessary to accept an inheritance of this kind.
- Notify all other owners of shares in the authorized capital of the intention to accept the share as an inheritance. If all owners agree to this, or the charter does not provide for any restrictions, the heir can move on to the next stage.
- Pay the state fee for obtaining a certificate of inheritance.
- Obtain a certificate of inheritance from a notary.
- Register innovations in the Unified State Register of Legal Entities.
ATTENTION! You must initially submit an application to a notary and appear before him no later than 6 months from the date of death of the testator.
While it is not difficult to go to a notary and write an application for inheritance, collecting and preparing documents can cause confusion for the heir.
This is due to the fact that the subject of inheritance is specific. To register an inheritance of a share in the authorized capital of an LLC, you will definitely need:
- death certificate of the testator;
- passport of the heir-applicant;
- a will or document on family ties with the testator;
- a certificate indicating the last place of residence of the testator;
- documents that confirm the existence of the testator’s share in the LLC;
- a certificate received from the company stating that the testator actually made a contribution to the authorized capital;
- a copy of the company's charter;
- valuation of the share in the charter, reflecting its market value at the time of the death of the testator;
- list of LLC participants.
The list of documents may be changed and supplemented depending on the situation.
Restriction included in the LLC Charter
If the charter does not contain any restrictions regarding the inheritance of LLC shares, the heir simply goes through all the stages of registering the inheritance. In this case, the share becomes the property of the heir from the moment its registration is completed. Moreover, the heir is included in the management of the company and becomes its full member with all the attendant responsibilities and rights.
If there is a restriction, then the heir must first obtain the consent of all owners of shares of the authorized capital about his entry into their composition.
Consent is given in writing within the period established by the company's charter.
Moreover, the absence of a written refusal signed by all participants of the company can be taken as consent.
What to do if a refusal is issued? What will happen to the share in the authorized capital in this case? According to the law, if, while it is mandatory for the company’s participants to agree to the entry of an heir into their membership, a decision is made to refuse this, then the inherited share becomes the property of the LLC. In this case, the heir must be compensated in monetary terms in the amount of the value of the share.
The final stage: making changes to the Unified State Register of Legal Entities
After receiving a certificate of the right to inheritance and the consent of the company participants, the heir must make changes to the Unified State Register of Legal Entities.
A certificate of the right to inheritance can be received no earlier than the 6 months allotted for entering into an inheritance have expired.
Changes are made by the registration authority, most often tax office. To do this, the heir must provide copies of the documents:
- death certificate of the testator - a member of the company;
- decisions on the consent of participants;
- certificates of the right to accept inheritance;
To make changes, the heir must write an application to the registering authority.
Thus, inheriting a share in the authorized capital of an LLC has a number of features. In some cases, the heir will not be able to become a full participant in the company without the consent of the others. However, in this case he will receive monetary compensation. If no obstacles arise, the heir will be able to accept a share in the authorized capital by inheritance and become a member of the company.
The co-founders of a limited liability company (LLC) have their own shares of capital. In the event of the death of one of them, part of the investment goes into the estate. The legal successor has the right to become a co-owner of the institution or receive compensation. The first option is relevant if there are no conditions in the charter that prevent inheritance. The second case is more common, as enterprises try to protect themselves from unprofessional managers. The heir will be paid an amount equivalent to his share of the capital.
Inheritance of a share in an LLC after the death of one of the participants is regulated by Federal Law No. 14. The law states that part of the capital belonging to the co-owner of the institution may be transferred to the legal successor by testamentary or legal principle, unless the charter contains additional conditions. Two options for the development of events arise:
- the deceased owner of the LLC share will be replaced by an heir;
- the founders of the enterprise will not give consent to join their circle.
The first option is possible in the absence of certain conditions in the organization’s charter. In other cases, the heir will not be allowed to take the position of a deceased relative or his rights will be limited. Such radical measures are necessary to avoid a stranger who has no management experience joining the ranks of co-owners. Examples will help you understand the situation:
Situation | Denouement |
---|---|
The minor son of the deceased was to inherit the share of the capital. The problem was the clause specified in the charter about the possibility of joining the co-founders only after receiving approval from each of them. | The law does not prohibit accepting citizens under 18 years of age into the management circle. However, no one approved the candidacy, so the successor was rejected. Part of the authorized capital was compensated after its assessment. |
The co-owner of the LLC left his adult daughter part of the organization’s capital. The charter did not prohibit outsiders from sharing in the inheritance. | Having gone through standard procedures, the successor became one of the co-founders and was able to register property rights. |
Inheriting an LLC with a single founder or director is different from a simple procedure. The first situation usually ends with the sale of the organization. At the time of acceptance of the inheritance, the person specified in the will or the successor himself under a trust management agreement manages the affairs. In the second case, the election of a new director takes place at a meeting of the company's participants. Only the share of the deceased goes to the heir. The position is not included in the inheritance estate.
Peculiarities of accepting the heir's property
Entry into inheritance in an LLC is regulated by the norms of the Civil Code of the Russian Federation. Part of the authorized capital will be transferred to the legal successor according to a will containing the last will of the founder, or by law within the framework of the priority order. The following paragraphs of the organization’s charter can influence the process of a deceased person taking office:
- The registration of a new co-founder is permissible if the other participants of the LLC agree.
- Persons who are heirs of deceased members of the organization cannot enter the circle of leaders.
Applicants should remember that the stated conditions only limit the rights of legal successors, but do not affect the inheritance of the capital share in the LLC. By prohibiting participation in the management of the organization, the co-founders oblige themselves to pay compensation to the heir.
If there are no obstacles, then the applicant will enter the circle of LLC participants without any problems. Before the registration of inheritance rights, a trust inheritance agreement is drawn up.
Managing the organization before joining
Article 1173 of the Civil Code contains the main points of trust management of shares in an LLC during inheritance. The contract is certified by a notary at the request of the executors or heirs. The agreement is valid until the deceased’s property is accepted. To avoid problems, it is necessary to obtain the consent of the other co-founders and remember the main points of this type of management:
- The temporary manager, whose name is indicated in the agreement, is obliged to take actions required to continue the full operation of the organization. A list of acceptable operations is usually given in the document.
- The manager cannot sell or exchange the share entrusted to him under the agreement.
- The document is canceled upon completion of the process of inheriting a share in the LLC.
- If other co-founders refuse to accept a new member, the agreement loses relevance at the moment of redistribution of capital between other participants as a result of the alienation transaction.
Successors may not declare their right to manage the organization's shares. If the operation of the LLC does not stop, then no action will be required. In another situation, the problem is solved in 2 ways:
- Contacting a notary or executor to determine the manager.
- Filing a claim in court. The applicant has the right to request to initiate external form management or exclude the legal successor from the list of participants.
The sequence of actions depends on the performance of the organization in the absence of one of the co-founders. The issue is resolved in court if there are no other ways out of the current situation.
Receiving a share without restrictions
Inheritance of a share in the authorized capital of an LLC without preventing clauses in the charter takes place according to the standard algorithm of actions. It is enough for the successor to contact a notary office after the opening of the inheritance (death of the co-founder). You must take the following documents with you:
The notary will check the documents and accept the application for inheritance. After six months, the legal successor will be issued a certificate confirming the acceptance of the capital share in the LLC. Based on the received document, the procedure for becoming one of the co-founders of the organization is initiated.
The final stage, after which the heir will be able to freely dispose of the deceased’s share, is the registration of property rights. The assignee will have to contact Rosreestr to write an application to make amendments to the Unified State Register of Legal Entities. The words are confirmed by a list of documents:
- Passport.
- Extract from the protocol on the applicant’s acceptance into the circle of co-owners of the organization as the legal successor of the deceased participant.
- Certificate of inheritance.
Other documents substantiating the right to own a share of the authorized capital are required depending on the circumstances. Before submitting, they will have to be certified by a notary office.
Inheritance of a share subject to the consent of other co-founders
Legal successors cannot always fully replace a deceased LLC member; for example, in the absence of professional skills, it is impossible to perform the duties of a manager. To avoid financial losses, the charter includes a clause on the approval of the candidacy with other co-founders. The introduced condition will not affect the procedure for accepting a capital share. The successor will submit an application to the notary's office and receive a certificate confirming entry into the inheritance in six months. However, based on the issued document, automatic entry into the circle of management will not occur. The candidate must obtain the consent of the remaining co-founders.
The assignee must send documents to the LLC or make inquiries to the equity holders. In both cases, you will need to contact a notary to certify the papers. The answer will come within 1 month.
A positive verdict will allow you to initiate the procedure for becoming a co-owner of the institution. In the future, property rights can be registered in Rosreestr. Lack of approval from at least one of the participants will be a reason for the alienation of the capital share in favor of the other co-founders and compensation to the heir for its value.
Refusal to accept a new participant
Upon receipt of a refusal to be accepted into the circle of co-owners, the legal successors have the right to demand compensation for the cost of part of the capital. The share price varies depending on the size of net assets. The calculation is carried out according to the formula:
- Cost = net assets / 100 * successor's share.
For calculations, data obtained from the accounting department is used. In order to reduce the likelihood of litigation, the co-owners hold a meeting in advance. It addresses a number of important issues:
- Acceptance of accounting reports.
- Calculation of the value of the successor's share.
- Determination of the form of compensation and payment period.
- Distribution of the part of the capital that did not go to the legal successor among other co-owners.
Having resolved issues related to the form, amount and timing of payment of compensation, the legal successor will be reimbursed for the actual value of the inherited share. Then part of the deceased’s capital will pass into the hands of co-owners, who have the right to redistribute it among themselves or sell it to a third party.
Actions taken must be reflected in the minutes of the meeting. Then the co-founders are required to make changes to the Unified State Register of Legal Entities. Employees of the registration authority will need to provide an application drawn up in form P14001, a certificate of death of the co-founder, an extract from the protocol and an agreement on the sale of the share, if a deal has already been concluded.
Instead of redistributing or selling the part that did not go to the heir, members of a limited liability company have the right to begin the procedure for paying off the share. Its essence is to reduce the amount of capital.
Contacting appraisal companies
An assessment of a share in an LLC for inheritance is necessary to find out its real price and calculate the amount of state duty. Independent companies are engaged in determining the value of enterprise assets. The assignee must enter into an agreement with one of these organizations. To obtain more accurate data, you will need to provide specialists with statutory documents, accounting reports, a breakdown of debts, a list of assets and an extract from the unified register. The assessment procedure is given in the list:
- Studying the economic indicators of the region where the LLC is located and operates.
- Calculation of factors influencing the functioning of society.
- Analysis of provided reports.
The appraiser will provide the successor with a report on the work done, signed by the management of the independent appraisal company. The cost of services depends on the complexity of the order.
Amount of state duty
Without a receipt for mandatory payment for services provided by the state, the procedure for accepting an inheritance will not be completed. The state duty is calculated based on the value of the share of the authorized capital and the degree of relationship with the deceased co-founder. If we're talking about about relatives of the first priority (parents, spouses, children) and brothers and sisters, then you will have to pay 0.3%. 0.6% is collected from the remaining legal successors. It is recommended to focus on examples of calculations:
- The cost of the share is 100 thousand rubles. The heir is the father of the deceased:
- 100 thousand / 100 * 0.3 = 300 rub.
- The share price is 1 million rubles. The legal successor is a friend of the deceased co-founder:
- 1 million / 100 * 0.6 = 6 thousand rubles.
In order to protect heirs, extreme amounts of state duty have been established. Close relatives will pay no more than 100 thousand rubles. It is unacceptable to collect amounts exceeding 1 million rubles from other applicants.
Inheritance of a share in an LLC occurs in the general manner according to the legal or testamentary principle. The assignee only needs to submit documents to a notary to obtain a certificate of acceptance of part of the capital. You can count on the position of the deceased if there are no objections from the other co-founders. Registration of rights in Rosreestr is underway. If there is a refusal by one of the LLC participants or a clause in the charter that prevents entry into the management circle, the heir will be compensated for his share.