Succession of a GmbH shareholder
- Lara Köster
- 7 days ago
- 2 min read
Background:
The heir of a GmbH shareholder automatically and immediately becomes a shareholder upon inheritance (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 shareholding, only those persons who are entered as such in the list of shareholders recorded in the commercial register are deemed to be the owners of a share (Section 16 (1) sentence 1 GmbHG).
As a result, the heir of a GmbH shareholder can only exercise shareholder rights and pass resolutions, for example, if he or she is entered in the list of shareholders. This also applies if the deceased was the sole shareholder and managing director.
The managing directors are responsible for submitting a list of shareholders after changes take effect. If the sole managing director dies and the GmbH is therefore without management (§ 35 para. 1 sentence 2 GmHG), an emergency appointment by the court may be considered (§ 29 BGB). However, an appointment by the shareholders' meeting is ruled out, as the heir cannot (yet) exercise his shareholder rights.
Decision of the Court of Appeal of 23 November 2022 - 22 W 50/22
The provision of Section 16 para. 1 sentence 1 GmbHG also applies to the heirs of a GmbH shareholder. A succesor can only exercise shareholder rights once he or she has been included in the list of shareholders in accordance with Section 40 GmbHG. This also applies to a curator of the estate who has been appointed for the unknown heirs of the shareholder. The heir of a GmbH shareholder only has the right to appeal against an order for emergency management once it has been entered in the list of shareholders.
In practice, it is therefore strongly recommended to grant the successor shareholder a transmortal power of attorney, i.e. one that extends beyond the death of the shareholder, in order to ensure the company's ability to act.
