Background:
The heir of a GmbH shareholder automatically and immediately becomes a shareholder upon the occurrence of the inheritance event (Section 1922 BGB). In relation to the company, in the event of a change in the persons of the shareholders or the extent of their participation, only those entered as such in the shareholder list recorded in the Commercial Register are considered owners of a business share (Section 16 (1) sentence 1 GmbH Act).
This means that the heir of a GmbH shareholder can only exercise shareholder rights and, for example, pass resolutions, once they are entered in the shareholder list. This also applies if the deceased was the sole shareholder and managing director.
The managing directors are responsible for submitting a shareholder list after changes become effective. If the sole managing director dies and the GmbH is thus without management (Section 35 (1) sentence 2 GmbH Act), a court-ordered emergency appointment may be considered (Section 29 BGB). An appointment by the shareholders' meeting, however, is not possible, as the heir cannot (yet) exercise their shareholder rights.
Decision of the Kammergericht of November 23, 2022 – 22 W 50/22
The provision of Section 16 (1) sentence 1 of the GmbH Act also applies to the heirs of a GmbH shareholder. They can only exercise shareholder rights once they have been entered into the shareholder list according to Section 40 of the GmbH Act. This also applies to an estate administrator appointed for the unknown heirs of the shareholder. The right to appeal against the order of an emergency management itself accrues to the heir of a GmbH shareholder only upon entry in the shareholder list.
In practice, it is therefore strongly recommended to grant the successor shareholder a transmortal power of attorney, i.e., one effective beyond the death of the shareholder, to ensure the company's ability to act.
