Inheritance law difficulties with a one-person limited liability company

KG Berlin v. 23.11.2022 - 22 W 50/22

Recently, the Berlin Court of Appeals issued a decision regarding the eligibility of a community of heirs within a GmbH.

The ruling was based on the following facts: The sole managing director and sole shareholder of a company B had died. Due to unclear inheritance circumstances, a guardian of the estate was appointed to secure and administer the estate. At the request of the decedent's partner, the Charlottenburg Local Court appointed her as emergency managing director with sole power of representation. The guardian of the estate lodged an appeal against the appointment of the partner as emergency manager on the grounds that the partner was the owner of the estate and refused to cooperate.

In the ruling of the KG Berlin it was stated that the provisions of § 16 (1) sentence 1 GmbHG also apply to the heirs of a GmbH shareholder. § Section 16 (1) sentence 1 GmbHG stipulates that in the event of a change in the persons of the shareholders, only the person entered as such in the list of shareholders recorded in the commercial register (Section 40 GmbHG) shall be deemed to be the holder of a share. § Section 16 (1) sentence 1 GmbH also applies in the event that an administrator of the estate has been appointed.

In turn, a managing director is necessary for the creation of such a list of shareholders. In the event of the death of the sole managing director, it is therefore first necessary to clarify the position of the managing director. As a result of the decedent's ceasing to exist, the heirs have not taken over his position as representative body, because with regard to the GmbH the heirs have merely acquired the shares in the business. The action was rejected in the present case because the heirs were not adversely affected in their own rights by the emergency appointment by the Local Court.

The appointment of an emergency managing director is possible by the local court (analogous to § 29 BGB). The choice of person is at the discretion of the court. Anyone to whom the GmbH has obligations (e.g. company creditors, works councils or authorities) is entitled to apply.

The sole shareholder and managing director could already determine during his lifetime by means of an advance directive who is to be appointed as emergency managing director in the event of his death. It would also be conceivable to appoint a second managing director with joint power of representation during his lifetime. This could counteract the risk of a judicially determined emergency appointment, which could be contrary to the interests of the heirs.

PBC legal Takeaways: As the sole owner and managing director of a company, you should already make provisions for a possible death during your lifetime. If you have any questions about which precautionary measures and succession arrangements are possible from a corporate law perspective, please do not hesitate to contact us.