7 minute read

Can An LLC Go Through Probate?

Do you know whether or not your LLC would pass through probate if you were to pass away? Learn how businesses are treated in the context of probate.

Mitch Mitchell

Mitch Mitchell, @MitchMitchell

Product Counsel, Legal, Trust & Will

Many individuals with an entrepreneurial spirit will choose to establish a limited liability company (LLC) for their business ventures. This provides several advantages, such as tax benefits, flexibility management structures, and personal liability protection. However, it’s important to take things a step further and protect your business ventures in the context of estate planning. Particularly, you should understand how an LLC is treated in the probate process, especially when an owner or member passes away. Does an LLC go through probate? Keep reading as Trust & Will answers this question as well as other important insights. 

What is an LLC?

An LLC, or Limited Liability Company, is a popular business structure that combines the advantages of both a corporation and a partnership or sole proprietorship. It provides a flexible and simplified framework for business ownership and operation. An LLC is a separate legal entity from its owners, known as members, which means it has its own rights, liabilities, and legal existence.

Here are some key characteristics of an LLC:

1. Limited liability: One of the main benefits of an LLC is the limited liability protection it offers to its members. This means that the personal assets of the members are generally protected from the debts and liabilities of the LLC. In case of legal claims or financial obligations, the liability is typically limited to the assets of the LLC itself.

2. Pass-through taxation: By default, an LLC is not subject to separate federal income tax. Instead, the profits and losses of the LLC "pass through" to the individual members, who report them on their personal tax returns. This avoids the double taxation that can occur with corporations, where both the company's profits and the dividends paid to shareholders are taxed.

3. Flexibility in management and ownership: LLCs offer flexibility in terms of management and ownership structures. Members can choose to manage the LLC themselves or appoint managers to handle day-to-day operations. Additionally, ownership interests in an LLC can be divided among multiple members, who can have different percentages of ownership and varying levels of involvement in the business.

4. Operating agreement: An LLC typically has an operating agreement, which is a legal document that outlines the internal rules, procedures, and ownership arrangements of the company. The operating agreement specifies the rights and responsibilities of the members, rules for decision-making, profit distribution, and other important aspects of the LLC's operation. It provides clarity and protection for all parties involved.

5. Perpetual existence: Unlike partnerships or sole proprietorships, an LLC can have perpetual existence. This means that the LLC can continue to exist even if one or more members leave or new members are added. The continuity of the LLC is not dependent on the individual members, allowing for stability and longevity.

6. Versatility: LLCs are suitable for various types of businesses, including small businesses, startups, professional practices, real estate investments, and more. They offer a versatile structure that can accommodate different industries and business objectives.

Here, it is important to understand that the laws regarding the formation and operation of an LLC can vary from state to state. Each state typically offers plenty of information and resources regarding LLC formation, requirements, and rules. For instance, for California, plenty of educational materials are provided by the Secretary of State and Franchise Tax Board websites.  Be sure to educate yourself regarding LLC formation and requirements in your state.

Types of assets held by an LLC

Before we explore the impact of the probate process on an LLC, it is helpful to know the types of assets that can be held by an LLC. This is because probate is largely a process that dictates what should happen to assets and property, rather than an entity as a whole. 

An LLC can own and manage a variety of assets. Here are some examples:

1. Financial assets: An owner or member can open separate bank accounts, such as checking and savings, for a limited liability company. Separating business from personal finances is not only recommended, it is best practice to ensure that an owner and his or her business are separate financial entities in the event of a liability or lawsuit. LLCs can also hold financial assets such as stocks, bonds, and other investments that allow for the diversification and potential growth of company capital.

2. Equipment and inventory: The business will likely purchase equipment necessary for operations. For instance, a manufacturing business likely requires machinery, equipment, and vehicles for transport. A retail business will need to maintain inventory. Even a single-member LLC that provides a service may have basic equipment such as a computer, software programs, and office supplies.

3. Real estate: LLCs frequently hold real estate properties, such as rental properties, commercial buildings, and undeveloped land. This allows for liability protection and facilitates efficient management of the properties.

4. Intellectual property: LLCs can also own intellectual property, such as trademarks, copyrights, and patents. These are invaluable assets that can contribute to a company’s branding, market position, and revenue generation. By placing these assets within an LLC, owners can protect their intellectual property rights and potentially separate them from their personal assets.

What happens to an LLC when an owner or member passes away?

When an owner or member (Owner/Member) of an LLC passes away, legally speaking, the LLC can continue to exist and operate. Mentioned earlier, this is one of the key advantages of establishing an LLC in the case of your death or incapacitation.

Ultimately, however, the outcome of the LLC when the owner or member passes away depends on a number of factors. Some factors include but aren’t limited to:

  • State laws pertaining to business entities

  • Provisions outlined in the LLC’s operating agreement

  • The deceased individual’s estate plan

Here are some possible scenarios that can follow an Owner/Member’s death:

1. Transfer of ownership to beneficiaries: If the LLC's operating agreement or the deceased member's estate plan designates specific beneficiaries to receive the ownership interest, the ownership will typically transfer to them. The operating agreement may outline the procedure for the transfer and any restrictions on who can become a member.

2. Buy-sell agreement: In some cases, an LLC may have a buy-sell agreement in place, which provides a mechanism for the remaining members or the LLC itself to purchase the deceased member's ownership interest. This agreement can help facilitate a smooth transition of ownership and ensure that the deceased member's interest is properly valued and transferred.

3. Operating agreement provisions: The operating agreement of an LLC plays a critical role in determining the transfer of ownership upon the death of a member. Provisions can outline the steps to be taken, such as how the deceased member's interest is valued, whether it can be transferred to a new member, or whether it needs to be liquidated. They can also inform if the deceased member’s interest will be transferred to their heir(s) or designated beneficiaries. It may also provide that the surviving members have the right to purchase the deceased member’s interest.

4. Dissolution and wind-up: If the LLC's operating agreement does not specify what happens upon the death of a member and no other agreements or arrangements are in place, the LLC may need to be dissolved and its affairs winded up. This typically involves selling the LLC's assets, paying off debts and obligations, and distributing any remaining assets to the deceased member's estate or beneficiaries.

Does an LLC go through probate?

Probate is the legal process through which a decedent’s assets are distributed to their heirs and/or beneficiaries. During this process, the decedent’s Will is validated (if available), outstanding debts are settled, and the ownership of assets is transferred. 

Whether or not an LLC and its assets go through the probate process largely depends on its legal status, state rules, and the availability of the owner or member’s estate plan.

Typically speaking, an LLC is viewed as a separate legal entity from its owners or members. While an LLC itself does not typically go through probate, there are certain scenarios where the ownership interest in an LLC, thus LLC assets to which they were entitled, may become subject to the probate process. These scenarios include:

  • Lack of estate planning: If an LLC owner/member does not have a comprehensive estate plan in place, including provisions for the transfer of their ownership interest, their assets, including the LLC interest, may need to go through probate. Without specific instructions or designated beneficiaries, the court will follow the state's intestacy laws to determine how the assets should be distributed.

  • Absence of operating agreement: If the LLC does not have a well-drafted operating agreement that addresses the transfer of ownership interests upon the death of a member, the ownership interest may be subject to probate. In the absence of clear instructions, the court will rely on state laws to determine the distribution of the ownership interest.

  • Disputed ownership claims: If there are disputes or challenges regarding the ownership of the LLC interest, probate may be necessary to resolve these issues. This can occur if there are conflicting claims or if the ownership interest is contested by other parties.

  • Insufficient planning for succession: If there is no proper succession plan in place for the LLC, the death of an owner/member can lead to uncertainty and potential legal complications. Without clear provisions for the transfer of ownership, probate may be required to determine the rightful distribution of the ownership interest.

  • Court-ordered probate: In some cases, the court may order the probate of an LLC interest for various reasons, such as when there are concerns about the management or operation of the LLC or if there are allegations of fraudulent activities. The court may intervene to protect the interests of the deceased member's estate and the rightful beneficiaries.

Some of these LLC pitfalls can help inform how to best prepare for the future transfer of your business interests as well as avoid probate. 

LLC: strategies to avoid probate

There are several strategies to ensure that your personal interest in an LLC (or similar business entity) avoids the probate process as much as possible. Here, the desired outcome is the smooth and seamless transfer of your business interests and assets to another individual or entity, such as an heir or a buyer. 

To put simply, the best strategy for avoiding probate is to have a proper estate plan in place. This is true for any individual, regardless of whether they own a business or not. Second, if you do have a business, ensure you have a proper Operating Agreement, along with provisions that address what should happen to your share of the business should anything happen to you. Otherwise, the court may have to get involved. If you are a single operator, it may be tempting to skip this step. You might think, “why would I need an operating agreement for me, myself, and I?” This issue points out at least one important reason to make sure to have this key business document in place. 

With regards to your estate plan and business agreements, here are some more strategies spelled out in detail:

1. Establish a Revocable Living Trust: Placing the LLC and its assets into a revocable living trust can be an effective way to avoid probate. By transferring ownership of the LLC to the trust, the assets are no longer considered part of the individual's estate upon their death. Instead, the trust's terms govern the management and distribution of the assets, bypassing the probate process.

2. Utilize Transfer-on-Death (TOD) designations: Some states allow for TOD designations on certain types of assets, including LLC ownership interests. By designating a specific beneficiary to receive the LLC interest upon the owner's death, the asset can pass directly to the beneficiary outside of probate. It's important to check the laws in your jurisdiction to determine if TOD designations are available for LLCs.

3. Implement buy-sell agreements: A buy-sell agreement can be established among LLC members to address the transfer of ownership interests upon certain triggering events, such as the death of a member. This agreement can stipulate the terms for the sale or transfer of the deceased member's interest to the remaining members, ensuring a smooth transition without the need for probate.

4. Joint ownership with rights of survivorship: If the LLC is owned by multiple individuals, structuring the ownership as "joint tenants with rights of survivorship" can help avoid probate. In this arrangement, upon the death of one owner, their interest automatically passes to the surviving owners without the need for probate.

5. Make use of beneficiary designations: In some cases, certain assets of an LLC, such as life insurance policies or retirement accounts, can allow for beneficiary designations. By naming beneficiaries directly on these accounts, the assets can pass directly to the designated beneficiaries outside of probate.

6. Ensure a comprehensive estate plan: Developing a comprehensive estate plan that encompasses all assets, including the LLC and its interests, is crucial. This may involve creating a will that addresses the distribution of the LLC ownership, appointing an executor or trustee, and coordinating other estate planning tools to ensure a cohesive and effective strategy.

While these are general suggestions, be sure to consult a professional advisor as well ensure that your succession strategy comply with the applicable laws and regulations.

Estate planning is the key to seamless business succession

It should be emphasized again that the outcome of an LLC following the death of a member will vary depending on the circumstances and any applicable laws, which can vary from state to state. This includes specific rules and processes pertaining to the transfer of an owner/member’s personal interest in a business. 

Does an LLC go through probate?

In summary, state law will dictate what will happen. In the absence of an Operating Agreement and/or estate plan, a business owner’s interest may require court involvement to determine how their business interests and assets shall be transferred. These rules may require court involvement, or they may allow for automatic transfer.

Conversely, a proper Operating Agreement and estate plan can help ensure the seamless transfer of LLC assets and ownership interest and thus help bypass the probate process. 

Not only is it vital to understand your state laws on this topic, it also highlights the importance of having a well-crafted Operating Agreement and estate plan in place. Not only will these documents clarify your wishes regarding the handling of your business interests, they will help ensure that your wishes are honored. State laws applied in default may not produce your desired outcomes and therefore makes it necessary to proactively put in place.

Is there a question here we didn’t answer? Reach out to us today or Chat with a live member support representative!

Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.