GmbH shares in the event of inheritance: partnership agreement overrides will
The articles of association of a GmbH are the "constitution" of the company with omnilateral effect. It regulates not only the rights and obligations of the shareholders vis-à-vis the company, but also among the shareholders and, as a rule, the transferability and inheritance of shares.
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A will is a unilateral declaration of intent, revocable at any time, with which a person regulates the distribution of their estate in the event of death. In a will, the testator is free to determine who will inherit his or her estate and which assets are to go to certain persons - but only within the limits of the law, in particular taking into account the compulsory portion rights of next of kin (children, spouses). The right to a compulsory portion guarantees certain family members a minimum share of the value of the estate (half of the statutory inheritance share) as a monetary claim. The right to a compulsory portion therefore significantly restricts testamentary freedom.
Fate of the share after the death of the shareholders
The share is part of the deceased's estate. In principle, it can therefore be bequeathed or transferred by legacy claims in the same way as other assets. However, the interaction between the will and the articles of association must always be taken into account: the succession must be compatible with the provisions of the articles of association, as company law and the provisions of the articles of association take precedence in the event of a conflict. If the will and the articles of association are not compatible, the testamentary disposition may come to nothing.
Provisions in the articles of association on the inheritance and transfer of GmbH shares
In practice, GmbH articles of association often contain special succession clauses and transfer provisions to manage Business Succession in the event of the death of a shareholder. These can be structured in different ways, such as
- Simple succession clause: It clarifies that the share hereditary is. Without further specification, the basic legal rule then applies: the heirs take on the shareholder status in accordance with their inheritance quotas.
- Qualified succession clause: The articles of association specify who is to become a shareholder in the event of death. This often limits the group of persons entitled to succeed to the company.
- Right to pick up / obligation to pick up: These widespread clauses grant the remaining shareholders the right to acquire the deceased shareholder's share (right to acquire) or even oblige them to do so (obligation to acquire). This means that the share does not pass permanently to the heirs, but must be transferred to the co-shareholders on request in return for a settlement that is usually already stipulated in the articles of association.
Limits of the will for disposals of GmbH shares
The will is limited where mandatory law or effectively agreed company contract restrictions intervene.
In order to prevent conflicts between the articles of association and the will from arising in the first place, shareholders should carry out forward-looking succession planning at an early stage:
- Coordination of will and articles of association: Make sure that the testamentary dispositions relating to the share harmonize with the articles of association.
- Shaping the social contract in a targeted manner: Make use of the room for maneuver available under company law. Clarify with the co-shareholders which succession plan is acceptable to everyone.
- Testamentary provisions: You can make explicit reference to the partnership agreement in your will. This makes it clear to everyone involved what should happen in the event of an emergency.
- Include persons entitled to a compulsory portion: To avoid legal action for a compulsory portion later on, look for solutions with relatives entitled to a compulsory portion while you are still alive. One option is a contract waiving the compulsory portion in return for compensation. Alternatively, life insurance policies or other assets can be used to satisfy mandatory inheritance claims, while the GmbH share goes undiminished to the successor.
In summary, shareholders should therefore plan their succession proactively so that there is no conflict between the articles of association and the will in the event of inheritance. Clarity and consistency ensure that the last will is implemented and the company can continue to exist without legal disputes.
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