Features of enterprise inheritance. Features of the enterprise inheritance procedure When a business has several founders
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The market economy in Russia is quite young compared to Western countries. The tradition of succession between generations of businessmen is just beginning to take shape. However, the problem of inheritance of enterprises has already become relevant in the 21st century.
Old-timers in leadership positions in commercial organizations are being replaced by young people. The founders of the first private companies still remain business owners, but this is not forever. The rejuvenation of the entrepreneurial community is obvious.
This phenomenon is associated with merciless time. Unfortunately, people grow old and die. Many years have passed since the change of the ruling regime and the collapse of the Soviet Union, and gray hairs have covered the heads of the heads of the first Russian private business firms.
In this article:
Objects and risks when inheriting companies
Some more time will pass and, due to their age, the pioneers of the domestic market economy will no longer be able to conduct business. The agenda will include the question of resigning powers and finding a worthy successor.
Does the current legislation allow for the transfer of a business by inheritance? This and much more will be discussed in this article.
The specificity of business inheritance lies in the particular status of this object. There is no clear regulatory regulation, but there are many rules of unrelated branches of law: “entrepreneurial” and “hereditary”.
By law, an enterprise is recognized as a complex property complex. Article 132 of the Civil Code of the Russian Federation tells us about this. In addition to buildings, structures, equipment, money, it may also include obligations, debts, trademarks and everything else that can be used in the process of business activity.
Enterprise debts
The main risks of business inheritance are associated with obligations. Heirs are not always involved in the affairs of the company during the life of the owner of the company. Being on the sidelines, relatives do not have even the slightest idea about the problems that may arise in the activities of the enterprise.
Having received an inheritance, a person comes to the first meeting of shareholders (participants) or to the director, and the whole heap of accumulated tasks, obstacles, barriers, debts of the company and other obligations falls on him.
It can be reassuring to know that business owners in a limited liability company are liable only to the extent of the nominal value of the share. Accordingly, even if the enterprise is unprofitable, you will not have to pay personal money without your own desire.
Exceptions are cases where insolvency arose already during the reign of the heir, through his fault (occupying the position of director and inept management, approval of a loss-making transaction, etc.).
This may involve bankruptcy of the company, subsidiary liability and other unpleasant procedures.
Nevertheless, it is also not worth staying on the sidelines and completely trusting the business to the existing old management, because the employees were loyal (or not) to the previous owner, and the new one may remain behind the scenes, and the company will be dismantled piece by piece. To prevent this from happening, the heir to the business must get on board and take the steering wheel into his own hands.
Transfer of the obligations of the individual entrepreneur to his heirs
The situation is completely different with the business of an individual entrepreneur. All his obligations are personal, and he is responsible with his own property. The heirs of an individual entrepreneur do not accept a share in the business, but specific property used in business activities. Here you will have to answer with what you have.
Formally, the obligation passes to the heirs within the limits of the value of the accepted property. It would seem that you can be calm - you received the property and you respond with the same. But it's not always that simple.
The insidiousness of the situation lies in the fact that according to accounting, the value of the property may be overstated. Accordingly, collection will be made on it based on its book value.
But in reality, the company’s things may be worthless. Here, an accepted inheritance can significantly hit your pocket. Although another situation cannot be ruled out, when the book value is underestimated and debts will be cut off. This is beneficial to the debtor and annoying to the creditor.
What to pay attention to
At the same time, you need to keep in mind that this procedure cannot be applied to real estate and transport. When there is an expensive property and the book value is low, or it has completely depreciated, the lender may require an independent examination to establish the limits of the heir's liability.
It is also necessary to understand that not all legal entities have the possibility of applying inheritance law. Only private businesses are inherited; state offices and unitary enterprises are not related to the topic under consideration.
Features: LLC inheritance, IP inheritance, one or more owners
The peculiarities of inheritance of an enterprise lie in the complexity of this object and its dual status. Oddly enough, the enterprise as a whole is recognized as real estate, although the real estate itself may not be part of it.
For example, a small retail business on rented space. The structure of such a business will only include goods in circulation, cash in the cash register and in the current account, commercial equipment, obligations and rights. At the same time, even such an enterprise will be recognized as a property complex.
On the other hand, the term “enterprise” refers to a business entity. More often this is how a company is designated, but if the business of an individual entrepreneur is large, then this definition can also be applied to it.
Different interpretations of one term lead to difficulties in understanding its essence and legal status.
LLC inheritance
A commercial organization is a legal entity and its owner is the owner of a share in the authorized capital (for LLC) or shares (for JSC).
That is, the owner of the buildings, equipment, and money of the company is formally the legal entity itself, and not its founder. The owner of the business is not the direct owner of the property of the enterprise, but owns it all through his company.
This raises a very difficult question - what to inherit: a share in the authorized capital (shares) or directly all the property of the company (property complex).
Unfortunately, there is no direct answer in the law, since business inheritance is not designated as a separate type of legal relationship. In addition, the property complex (enterprise) will not necessarily be identical to the entire company.
Thus, one legal entity can concentrate several property complexes, for example, a network of factories in different regions of Russia.
Each production complex will be a branch of the company, have its own equipment, employees of a separate division, and so on. It is not possible to inherit such a business as a single property complex.
In this regard, there is an expert opinion that the transfer of a company by inheritance is still legally correct through the inheritance of a share in the authorized capital of the company / shares.
When a business has several founders
Inheriting a business through obtaining rights to a share in the authorized capital is especially important when the company has several participants in addition to the testator. In this situation, it is impossible to transfer the enterprise as an entire property complex due to the ownership of only part of the business by the testator.
In addition, inheriting an LLC has one important feature: the testator's partners may not want to transfer the share to the heir. In this case, the successor will only be paid compensation.
Formally, its size must correspond to the market value based on the results of assessing the value of the business, or the value of the share based on the book value of the property. In fact, all the numbers are in the hands of the partners, and they can bring the price to any value by manipulating accounting data.
IP inheritance
Unlike an LLC, an individual entrepreneur has no shares, no authorized capital, and therefore it is impossible to inherit the “IP” itself. This abbreviation means “an individual registered as an individual entrepreneur.” This status is inextricably linked with personality and is not inherited.
However, no one has canceled the inheritance of an individual’s property in this situation. Accordingly, when a business is transferred to the heirs of an individual entrepreneur, the successors receive exactly the property of the businessman.
In this case, the above-mentioned linking of the concept “enterprise” to the category “property complex” will be relevant.
In its composition, in addition to things used for business and money, the heirs can receive property and non-property rights (intellectual property, exclusive rights, trademarks, software licenses, non-exclusive rights to the website, commercial designation, slogan and much more).
Inheritance of a company by law and will, who can inherit the business and when
Legislatively established methods of inheritance are also relevant for the situation with the transfer of a business. No matter how many nuances there are, inheritance law has not yet invented anything else.
So, like any property, an enterprise can be inherited either by law or by will. And it doesn’t matter whether it’s a share in the authorized capital, shares, a property complex, or the company’s belongings separately.
Any person (if there is a will) or relatives in order of priority can become the receiver of the case.
In law
It is most logical to transfer the business to the most mature and educated relative. But a choice is possible in the case of a will, and if there is none, then His Majesty the “Law” comes into play.
He has no priorities in terms of expediency, abilities and determines heirs solely by degree of relationship.
Briefly this system looks like this:
- Children, husband, wife, mom, dad.
- Brothers, sisters, grandfather, grandmother, nephews.
- Uncles, aunts, cousins.
- Great-grandfathers, great-grandmothers.
- Cousins and granddaughters, great-uncles and grandmothers.
- Cousins, great-grandchildren, cousins, nephews and nieces, cousins, uncles and aunts.
- Stepsons, stepdaughters, stepfather, stepmother.
From this entire list, only capable and adult relatives can be real successors to the business. Only such citizens are able to understand the meaning of inheriting a company, because a number of rights and obligations of an LLC participant can only be of adult age.
By will
The most correct thing from the point of view of ensuring the life of the company after the death of its owner is to draw up a will. At the same time, not necessarily for a relative.
If a business owner is interested in the prosperity of his business and understands that no one among his relatives can provide this, but will only “squander” what he has earned over the years, he can identify any worthy person as a successor.
The concept of “worthiness” is highly subjective, but a large enterprise may employ thousands of people. Their fate cannot be entrusted to a person who is incapable of running a business.
The will must be drawn up in person. When registering it, the owner of the enterprise must be aware of the meaning of his actions and the consequences of their commission.
We must not forget about guaranteed shares in inherited property for disabled heirs of the first priority.
General order of inheritance: documents
The list of documents on the part of the heir is clear and standard, as for all other types of inheritance:
- identification document;
- confirmation of relationship;
- death certificate.
As for the papers for the enterprise itself, everything is much more complicated. After all, this is not just a thing, but a working mechanism in which people are involved.
According to the list, the number of inventory items, fixed assets, and obligations can amount to thousands, and all of them require papers. The question may arise: “why is this necessary if a share in the company is inherited?”
Reasonable, but to determine the valuation of a share, you need to understand the book value of the company's assets and liabilities, and this is impossible without documents for each position.
It’s good if you have contact with the management of the enterprise, especially with the management of the accounting department. In this case, you can easily collect the necessary papers for both the company (certificates, Charter) and the company’s property.
The situation is different if the accounting is lost or the heir is not given access to the documents by employees. In this case, you will have to use requests and possibly sue.
With this outcome, you will have to draw up a detailed action plan. It's like storming an impregnable fortress.
The legal dispute will have the subject of “request for documents”
During this process you must apply:
- for the company - OGRN and TIN certificates, Charter, protocol for the director;
- for individual entrepreneurs – a certificate of registration as an individual entrepreneur, a notification for registering an individual entrepreneur with the tax authority, and a TIN certificate.
The more information about the organization can be collected, the more balanced the decision will be to take or not take a share. An accurate analysis of documentation will help you avoid surprises and pitfalls.
Acceptance deadlines
The period for entering into an inheritance for an enterprise is the same as in the case of other property – 6 months. During this period, you must contact a notary with all documents. After going through a series of formal procedures, an inheritance certificate will be issued.
Registration of rights to LLC
After receiving the certificate of inheritance, you can go and register your right to the share with the registering tax authority (amending the Unified State Register of Legal Entities). After 5 working days after submitting the documents, the tax office will issue a registration sheet and changes will be made to the register of legal entities.
A limited liability company is required to maintain a register of participants. It is also necessary to make adjustments in this document after entering information about the new member of the Company into the Unified State Register of Legal Entities.
Registration of rights to an individual entrepreneur's business
If an enterprise is inherited as a property complex, then it is necessary to register the ownership of it as real estate by submitting documents to Rosreestr through the Office itself or the MFC.
When receiving separate property by inheritance, registration must be carried out in relation to the rights to vehicles (in the State Traffic Safety Inspectorate) and real estate (in Rosreestr).
In relation to the business itself, the process of its succession consists of re-registration of contracts with the testator's counterparties. Considering that rights and obligations are inherited, this should not cause any confrontation between the parties to contracts.
How to refuse inheritance of a company
It is not necessary to refuse the inheritance. To avoid receiving it, it is enough to simply not accept it and not start using the testator’s property.
There are some restrictions regarding opting out:
- there should be no conditions for refusal, it is done completely and irrevocably;
- it cannot be refused if, according to the will, everything is distributed to specific persons;
- Refusal from the obligatory share is not acceptable.
An active action is also possible - refusal in favor of another person or without indicating such. The deadline for direct refusal is during the period of acceptance of the inheritance.
At this time, you need to meet and submit the appropriate application to the notary at the place where the inheritance was opened. If the deadline is missed, you can refuse in court by filing a corresponding application with the court.
conclusions
To summarize, it should be noted that inheritance is different from inheritance. Many little things can influence whether it is advisable to accept it or not: the characteristics of the object of inheritance, the need for investment in the accepted business, the number of employees coming under the new owner, and much more.
If “property” can be used directly, then “business” is still work. It is possible that it is not the heir who will use the enterprise, but the enterprise will be used by the heir.
By accepting the rights to an enterprise, a person acquires not just things, he acquires, perhaps, his life’s work, or at least a very labor-intensive occupation.
VladimirThe inheritance includes all property, material rights and obligations of the testator, including enterprises belonging to him at the time of death. To receive them, the successors will have to formalize the inheritance and decide what to do with the inherited rights - register them in their name or benefit only from their property part.
Regardless of the option chosen, it is important for the heir to know when this is possible, how it happens and what to pay special attention to.
What does the enterprise include?
According to Art. 132 of the Civil Code of the Russian Federation, an enterprise, as an object of civil rights, is a property complex that includes:
- plots of land, buildings;
- industrial items, equipment;
- cash;
- products, raw materials;
- means of individualization (trademark, commercial designation, company name);
- rights to demand repayment of debt;
- debt;
- other types of property and exclusive rights.
The legal personality of a legal entity or individual entrepreneur is not included in the property complex. That is, by inheriting an enterprise, an individual becomes the owner of its resources and can use them for their intended purpose only after registering as a legal entity or individual entrepreneur.
Grounds for inheritance
A property complex that is fully or partially owned by an individual (testator) after his death passes to his successors by law or by will. And in most cases, the owner himself can determine on which of these grounds the inheritance will occur.
In law
The legal inheritance regime is valid in the following cases:
- The testator did not leave a will (did not want, did not have time or was not capable of doing so).
- The will was contested or declared void.
- The only heir specified in the will was found unworthy.
- The testator has disabled relatives - spouse, parents, children - and dependents who are deprived of inheritance under the will or are insufficiently endowed with it (less than the minimum required for them).
In the latter case, the will of the deceased is adjusted to the extent necessary to satisfy the legal property rights of these persons.
The following groups of persons may be called upon by law to receive an enterprise:
- Children, parents, legal spouse (hereinafter, relatives and family members of the testator are indicated).
- Brothers, sisters, grandfathers, grandmothers.
- Aunts, uncles.
- Great-grandfathers, great-grandmothers.
- Great-grandchildren, great-uncles and grandmothers.
- Cousins: great-grandchildren, aunts, uncles, nephews.
- Stepmother, stepfather, stepsons, stepdaughters.
If a testator from among the children, brothers, sisters, aunts and uncles died before the testator, the material benefits due to them pass to their children - grandchildren, nephews or cousins of the testator. This is called in law.
A similar situation is observed in the event of the death of one of the successors later than the testator, but before he accepted the inheritance. The inheritance share of the deceased is distributed among his heirs according to law or will (transmission order).
The group of successors corresponding to paragraph 1 has the priority right of inheritance and is called upon to take over the property immediately after the death of its owner.
The persons specified in paragraph 2 have this right in the event of the initial absence of participants in the first group or in the case of:
- their unanimous refusal of the inheritance;
- they missed the inheritance period for unjustified reasons;
- recognizing them as unworthy.
The same principle applies to the transfer of inheritance rights from group 2 to group 3, etc. And any of the priority categories of successors will include disabled dependents of the deceased, inheriting on equal rights with relatives.
The property of the deceased is divided equally among the successors of the same group. In this case, only the number of priority heirs is taken into account - their descendants, claiming to receive the inheritance by right of representation or by transmission, have the right only to the share of the deceased heir and also divide it among themselves in equal parts.
Example. After the death of the owner, the company passed to the heirs of the first stage: a son, a wife and three grandchildren (instead of a daughter who died before her father). The son and wife each received 1/3 of the inheritance, and the grandchildren received 1/9 each (1/3 of their mother was distributed equally between them).
By will
By exercising his right to express his will, the testator may, at his own discretion, determine successors and divide his property between them.
The heirs under the will can be:
- Individuals (regardless of relationship or marriage).
- Legal entities (commercial and non-profit organizations existing at the time of opening of the inheritance).
- International organizations.
- States and their territorial units.
The testator also has the right to order the appointment of an executor of his last will (in the event of death or refusal of those appointed), and the fulfillment by heirs of a testamentary refusal or assignment.
But it is worth remembering that only individuals who are fully capable and adequate have freedom of expression. The following are not allowed to make a will: minors (except for emancipated people), mentally ill people and people in a state of intoxication. The document they draw up is deprived of legal force and only relatives and family members can become their successors.
Features of enterprise inheritance
A property complex belongs to real estate, but the process of its inheritance is somewhat different from the registration of objects typical for this category - an apartment, a house or a plot of land.
Features of accepting rights to an enterprise are as follows:
- In the absence of separate orders from the testator, persons who have a preemptive right to it are called upon to inherit the enterprise - individual entrepreneurs by law and commercial organizations by will.
- The preemptive right is not exercised without the submission of a corresponding application by the heir and otherwise may be lost by him.
- A successor who is not registered as an individual entrepreneur (IP) or a legal entity at the time of the death of the testator can receive an enterprise only in the absence of persons with such registration or their unwillingness to exercise the preemptive right.
- The shares of other heirs, which have become smaller due to their failure to receive the enterprise, must be compensated at the expense of its right holders.
- Without payment of compensation, the property complex becomes the common property of all heirs, regardless of their registration as a business entity.
- The actual division of the enterprise is unacceptable by law, but each of the new owners (if there are several of them) will be assigned a certain part of it, within which they will receive profit, be responsible for obligations and which they can sell if they wish.
- In order to use the property complex for its intended purpose, a successor who was not previously an individual entrepreneur or legal entity must enter his data into the Unified State Register of Individual Entrepreneurs or Legal Entities.
- If the heir plans to sell the material part of the enterprise, he only needs to register it as a piece of real estate without implementing the previous paragraph.
These features are generalized and characteristic of the inheritance of the property complex of a business entity. In addition, the heir needs to take into account the organizational and legal form of the enterprise, more about which below.
How to inherit a business
To become the legal holder of a property complex, the heir must accept it. The law establishes two ways to accomplish this task - actual inheritance and notarization. However, in the case of an enterprise, it is the second option that should be taken into account.
Algorithm of actions
Notarization of inheritance rights requires the successor to do the following:
- A visit to a notary and the writing and issuance of a certificate of title.
- Collecting the necessary documentation and attaching it to the application.
- Payment of notary services and state fees for issuing a certificate.
- Obtaining a certificate of inheritance.
Acceptance of an inheritance on behalf of a minor or incompetent citizen is carried out by his legal representative - a parent or guardian.
A fully capable successor has the right to entrust the execution of the procedure to a third party by issuing a power of attorney for his representative.
Procedure
The first thing the heir needs to find out is the place where the inheritance will be opened. According to Art. 1115 of the Civil Code of the Russian Federation, it is determined according to the following criteria:
- The testator's last place of residence. If the actual and registered addresses do not match, it is possible to establish the place of primary residence of the deceased in court.
- The location of the most valuable part of the real estate, if the residential address of the deceased is not determined or is not located on the territory of the Russian Federation.
- The place of storage of the most expensive part of movable property, if the estate does not include real estate.
Having determined the place of opening of the inheritance, the successor has the right to choose any notary working in this territory (the list can be found on the official website of the Federal Notary Chamber).
It is important to declare your rights to the inheritance as early as possible so as not to miss the inheritance deadline (6 months from the date of death of the testator).
This can be done already on the first visit to an authorized specialist, even if you do not have a complete list of necessary documents on hand. Indeed, according to paragraph 117 of Order of the Ministry of Justice of Russia No. 78 dated April 16, 2014, the basis for opening an inheritance case is the receipt of any application from the successors of the deceased, his spouse, executor or the person who buried him.
After submitting the application, you can begin collecting documents, which will be reported by the notary. You shouldn’t delay this either - missed deadlines can only be restored for good reasons and most often through the court.
The prepared package of papers is reviewed by a notary. He checks the authority of the applicant, the presence of grounds for the appeal, the number and rights of the remaining successors, the fact of the death of the testator and the suitability of the place of opening of the inheritance. If no errors or violations were identified, the heir is given details for paying state fees and legal and technical services.
Paid receipts and checks are attached to the inheritance file, and the successor is notified of the day the certificate of inheritance is issued (as a rule, the document can be received after six months from the date of death of the testator). After this, the inheritance process is considered completed.
Documentation
List of documentation required for inheritance:
- Identity card of the applicant (if this is a representative, an additional power of attorney or confirmation of the status of the legal representative will be required - a birth certificate of a minor heir, a decision of the guardianship and trusteeship authority).
- Death certificate of the testator (issued to relatives at the registry office at the place of his death).
- Certificate from the last place of residence (passport office, Federal Migration Service).
- A will or a document confirming the right of inheritance by law (marriage, birth, adoption certificate, court decision establishing the fact of dependency).
- A deed of title to the property (must be kept by the testator, but an extract from the Unified State Register of Real Estate on registration of a property complex in the name of the now deceased may also be suitable).
- Inventory act.
- Balance sheet.
- A report on the existence of obligations indicating creditors, the amount of debts, the timing and procedure for their repayment.
- An audit report indicating the value and composition of the enterprise.
The heir can send the papers to the notary by mail or through a courier. The latter method is more reliable, but much more expensive. If the applicant decides to use postal services, he should issue the shipment in a valuable letter. This will help him obtain some guarantees of the safety of documents and record the moment of their delivery to the addressee.
Price
When registering an enterprise, the heir will have to bear the following expenses:
- 0.3% of the estimated value of the property complex for close relatives of the testator (parents, children, spouse, brothers and sisters) and 0.6% for other successors - towards the state duty for issuing a certificate of inheritance;
- 5,000 rubles for registration of one property* - payment for notary services of a legal and technical nature (relevant for Moscow notaries, prices for other constituent entities of the Russian Federation can be clarified in local notary chambers).
* - the property complex is defined by law as an indivisible object, and therefore costs are limited to the specified amount.
The listed expenses are the minimum that the heir should expect. Additional services, such as determining shares of the inheritance, establishing trust management of property or taking measures to protect the inheritance, are paid separately.
Inheritance of enterprises of various organizational and legal forms
The process and result of inheriting an enterprise also depends on its organizational and legal form. Currently the most popular of them are:
- limited liability company (LLC);
- joint stock company - public and non-public (PJSC and JSC);
- individual entrepreneur (IP) - unlike the first two, does not require the formation of a legal entity.
Limited Liability Company
An enterprise of this form is inherited in part of the contribution made to the authorized capital by the deceased. The consequences depend on the specifics of the charter, the opinions of the company's participants and the wishes of the heir.
If the charter of the LLC establishes a ban on including third parties as members of the company, the successor, upon presentation of a certificate of the right to inheritance, will receive monetary compensation for the contribution from the existing participants.
But most often, the rules of the enterprise allow the admission of a new member into its ranks, but this requires the permission of the other participants. And it must be unanimous. Otherwise, the owner of the share will face material compensation for the contribution and loss of the opportunity to make a profit from the activities of the LLC.
If consent has been given or the charter provides for free entry into members of the company, the successor acquires the right to register his membership and receive a portion of the income from the activities of the enterprise, as well as bear the risk of losses within the framework of the testator’s contribution.
The heir to the share, even if he has permission to join the ranks of participants, may not use this opportunity and sell the share to other investors or, if they are unwilling, to third parties.
Joint-Stock Company
According to paragraph 3 of Art. 1178 of the Civil Code of the Russian Federation, which instead of the testator become participants in the joint-stock company. There is no difference in this between public and non-public joint-stock companies, and existing shareholders have no right to influence the succession process.
If the heir is not satisfied with the dividends, he can sell the shares to other participants or anyone (if the company is public).
The heirs of an individual entrepreneur receive nothing more than the property complex of the enterprise that was owned by him. The obligations, as well as the powers that are inherent in this organizational and legal form, cease at the moment of death of the individual entrepreneur.
And, if the successor wants to resume the activities of a business entity, he must register as an individual entrepreneur or a legal entity - depending on the goals and scale of the activities performed.
Debts
In accordance with Art. 1175 of the Civil Code of the Russian Federation, along with the property of the deceased, his debts also pass to the heirs, but only those that do not stop with the death of the debtor and do not have an inextricable connection with his personality.
In this case, the successor of the individual entrepreneur is partially released from obligations related to his economic activities, for example, from debts for:
- personal income tax;
- value added tax;
- insurance premiums;
- taxes under the simplified taxation system.
Also excluded from the inheritance are penalties and fines for late repayment of debts committed by an individual entrepreneur during his lifetime.
Debts on deposits of the legal holders of shares in the LLC are paid by the heirs at will. According to paragraph 3 of Art. 21 Federal Law No. 14-FZ, even an incompletely paid share can be sold or transferred on another basis to the extent that payment on it has been repaid.
As for the remaining debts of the testator, they are paid by the heirs within the framework of the property transferred to them. And successors, if desired, can be exempted from them. True, for this they will have to give up their entire inheritance, including material assets. But in certain situations this can be the most beneficial solution.
Protection and management of inheritance
On average, six months pass from the date of death of the previous owner of the enterprise until the final acquisition of ownership rights by his successor. And taking into account the need to register the heir as an individual entrepreneur or legal entity, as well as the risk of complications (litigation, the need to restore documents, etc.), this gap increases significantly.
During this time, the enterprise may decline or fall under the control of unscrupulous beneficiaries. To prevent this from happening, measures are taken to protect and manage the property in the interests of the heirs. Any of the successors, including his representative, and the executor of the will have the right to declare this.
Security and management measures are carried out by a notary or executor in the following order:
- The heirs are notified of planned events and the need for the property complex. At their request, an agreement can be concluded on the distribution of payment for the services of the appraiser. Otherwise, the costs will be borne by the applicant with subsequent reimbursement from the inherited property (the required amount will be withheld from all heirs, in proportion to their shares).
- The responsible person sets a date for conducting an inventory of the property. It may be attended by the executor, heirs and, if this action directly or indirectly affects the legitimate interests of a minor or incompetent person, representatives of the guardianship and trusteeship authorities.
- On the appointed day, the notary (executor of the will), accompanied by interested parties and at least two witnesses, makes an inventory of the inherited property and enters the identified information into the relevant act*. The inventory can last several days, and in this case, each site or premises visited is sealed after inspection.
- The identified property is distributed and transferred for temporary storage and management. Cash belonging to the deceased is deposited with a notary, jewelry and currency are deposited in a bank, the body authorized in the area of its circulation is notified of the presence of weapons, and other property that does not require management is transferred under a storage agreement to one of the heirs or other persons.
- The enterprise is transferred to the management of a trustee on the basis of an agreement*. The founder has the right to act as an executor of a will or a notary (from September 1, 2018, this power will be exclusively the responsibility of the notary).
* - The trust management agreement specifies the scope of powers and the duration of their validity, or the nature of the circumstances, upon the occurrence of which the transferred powers will be terminated. It is also necessary to agree in advance on the issues of payment for the services of the trustee (according to Decree of the Government of the Russian Federation of May 27, 2002 No. 350, the maximum amount of remuneration under an agreement for storage and management of property cannot exceed 3% of its assessed value).
For notary services within the framework of these actions, payment is withheld from heirs in accordance with the tariff of the territorial notary chamber. In Moscow, for example, their cost will be as follows:
- 3,000 rub. for each hour of inventory;
- 5,000 rub. for visiting the place of inventory to individuals and 10,000 rubles. - to legal;
- 17,000 rub. for establishing trust management of property.
If the heirs are unable to pay for notary services immediately after they are provided, their cost will be deducted from the estate.
Registration
After accepting the inheritance, the successor must register ownership of the enterprise. In case of sale, registration of the property complex is sufficient. But, if the heir plans to continue the activities of his predecessor, he should obtain the status of a legal entity or individual entrepreneur.
Property Complex
The property complex of the enterprise according to the Civil Code of the Russian Federation is real estate. Therefore, it is subject to registration with the territorial body of the Federal Service for State Registration, Cadastre and Cartography (abbreviated as Rosreestr).
To register real estate, the heir needs:
- Prepare documents - a certificate of inheritance and an identity card (if a representative is involved in the registration, he is required to confirm his authority with a power of attorney).
- Appear at the Rosreestr office at the location of the property.
- Write an application and submit documents.
- Pay the state duty - 0.1% of the assessed value of the property complex, but not more than 60,000 rubles.
- Wait for a response indicating successful completion of registration.
To confirm ownership, the owner of an enterprise can order an extract from the Unified State Register of Real Estate through a multifunctional center or directly from Rosreestr. This will be its title document.
Registration of a legal entity
Registration of legal entities is carried out at the tax office at the location of the executive body (it is better if it coincides with the address of the enterprise).
To do this, the founder will need:
- Prepare documents.
- Visit the tax office.
- Submit the prepared papers and write an application to create a legal entity.
- Pay the state fee (RUB 4,000).
- Receive a response from the registration authority.
The list of documents required for registration includes:
- application (form No. P11001, approved by order of the Federal Tax Service), certified by a notary;
- minutes of the meeting of founders or the decision of the sole founder to create a legal entity;
- charter of the enterprise;
- receipt of payment of state duty.
If the heir received a share of the existing organization, he needs:
- Submit to the tax authorities a certificate of the death of the testator and the right to his contribution to the LLC, as well as the written consent of the remaining participants in the company to make changes to the data of the legal entity.
- Fill out the application form.
- Pay the state fee (in this case - 800 rubles).
After entering the declared data into the Unified State Register of Legal Entities, the successor becomes a full participant in the economic activities of the enterprise with all the ensuing rights and obligations.
Individual entrepreneur
Registration of an individual as an individual entrepreneur is carried out at the tax service at the place of residence or primary residence of the applicant. To do this, the heir will need
This issue is one of the most controversial. There is no unity in the answer to it either in legal science or in practice, which is largely due to the fact that GKU does not provide for such a form of legal entity as a private enterprise.
As experts in the field of inheritance law* note, difficulties are associated with the following nuances:
Under previous legislation, private enterprises could only be created by one individual; according to HKU** a private enterprise can be created by one or several individuals or even one legal entity;
Property owned by a private enterprise may be in its ownership, or may be owned by the enterprise on other legal grounds, for example, the owner of such property may remain the founder, who only transferred it for use to the private enterprise;
The founder of a private enterprise can be considered as the owner of the corporate rights of the private enterprise. The latter does not contradict the definition of corporate rights, since they can belong not only to participants in business companies (limited liability company, joint stock company, additional liability company, limited company, general company).
* See Nosik V.V., Thank you-Fateeva I. V., Zhilinkova I. V., Pecheny O.P. Problematic nutrition of notarial practice. - Kh., 2008. - p. 75.
** Economic Code of Ukraine dated January 16, 2003 No. 436-IV.
Conventionally, two main approaches to solving it can be distinguished. Let's briefly look at each of them, which will allow us to determine the most suitable one for the situation described in the question.
Option one: inheritance of property of a private enterprise
Private enterprise according to Art. 62 HKU is an independent business entity, is endowed with civil legal capacity and legal capacity, and, accordingly, can be the owner of property. However, it is possible to inherit the property of a private enterprise only if the enterprise itself is liquidated. The option when the heirs receive rights to the property of the enterprise and at the same time the enterprise continues to exist is impossible.
Based on the question, in the situation under consideration, the heirs do not want such a development of events.
It should be noted that in science and practice, the inheritance of a private enterprise as a single property complex is often considered as an independent option. By the way, the Ministry of Justice approached the question of the possibility of inheriting a private enterprise by considering it in the light of the possibility of inheriting an entire property complex (see. letter of the Ministry of Justice 06/02/09 No. 5415-0-33-09-19).
According to the current legislation, an enterprise as an independent object of civil rights is understood as a property complex used for carrying out business activities and including all types of property intended for such activities, such as: land plots, buildings, structures, equipment, inventory, raw materials, products, rights claims, debts, as well as rights to designations that individualize the enterprise (company name, trademarks, service marks), its products, works and services and other exclusive rights. The enterprise may include means of individualizing the enterprise itself as a property complex or its individual constituent elements (signs, trademarks, service marks, etc.).
The fact is that even if we consider a private enterprise as an integral property complex, the rights to it can pass to the heirs only in the form of rights to individual property that is part of such a complex, and not as rights to a legal entity. In other words, in this case, too, we will have to talk about the termination of a private enterprise as a legal entity, and therefore, the procedure for its liquidation.
Moreover, in our opinion, in such a situation it is impossible to do without a judicial procedure: the heirs will need to file a claim for the termination of a private enterprise in connection with the death of the founder - an individual. Based on a court decision on liquidation, a liquidation commission is created and liquidation takes place in the general manner (with the placement of an announcement of the termination of a legal entity, identification of debtors and creditors, assessment of property, making settlements, drawing up a liquidation balance sheet, etc.). The property remaining after final settlements passes into the ownership of the heirs.
This situation should not be confused with those cases where the founder transferred his property to a private enterprise for use, for example, on the basis of a lease or loan agreement. In this case, the rights to things that were owned by the founder are transferred to the heirs in accordance with the general procedure. This process, of course, has nothing to do with the issue of inheritance of the private enterprise itself.
Option two: inheritance of rights to a private enterprise
It is with this option that the heirs will receive not the rights to individual objects belonging to a private enterprise as a legal entity, but to the private enterprise itself, in as a result of which there will be no need to liquidate such a legal entity.
However, this option has opponents. They justify their position by the fact that a private enterprise does not belong to business companies, which means that the founder does not have corporate rights to it. The fact is that availability of authorized (share) capital counts the key criterion of an economic society Moreover, this must be capital, “divided into shares between participants.” However, this fact does not at all introduce a ban on both the creation and operation of business companies with one founder (participant).
And the courts, when answering the question whether a particular legal entity can be classified as a business company subject to the relevant requirements of the law, consider the determining criterion to be the presence of a legal entity’s authorized capital, divided into shares between participants. At the same time, another organizational and legal form of the enterprise may be indicated in the name, but this attribute still allows the courts to classify it as a business company ( see, for example, the resolution of the Kyiv Interregional Economic Court of Appeal dated 09/03/09 No. 20/80-13/298-13/299). For example, if the authorized capital of a private enterprise is divided into shares, in this case, a private enterprise is covered by the definition of a business company as a legal entity, the authorized capital of which is divided into shares, and the relations arising within the framework of such an enterprise are, by their nature, closest to an LLC. However, as the VHSU rightly points out, the characteristic of a legal entity as a private enterprise is a characteristic of the basis on which property it was created, and not of the relations on the formation of the authorized capital ( Resolution of the Supreme Court of Ukraine dated 02/05/09 No. 13/120). Therefore, if the charter of a private enterprise indicates that it has an authorized capital, even if such an enterprise has only one founder and he owned 100% of the authorized capital, then we can talk about inheriting corporate rights to a private enterprise.
Corporate rights, regardless of the form of their expression, relate to objects of civil rights (property), and therefore have the property of the latter - negotiability, i.e., freely alienated or transferred from one person to another in the order of succession or inheritance or otherwise
(Part 1 of Article 178 of the Civil Code*).
* Civil Code of Ukraine dated January 16, 2003, No. 435-IV.
In a situation where the heirs of the deceased founder do not want to cease the existence of a private enterprise, they should choose the second option. It involves issuing a certificate of inheritance from a notary, which will reflect the transfer to the heirs of the rights to a private enterprise that originally belonged to its founder. The notary will most likely have doubts about what exactly the wording should be in the certificate of inheritance. In practice, a variety of options are used to indicate the object of inheritance: “corporate rights to a private enterprise”, “rights of the founder of a private enterprise”, “right to the founder’s share in the authorized capital of a private enterprise”, “right to the authorized capital of a private enterprise”. Much will depend on the wording of the charter of a private enterprise, however, in our opinion, the choice of any of them will reflect the essence of the operation being carried out - the transfer of rights to a private enterprise from the testator to the heirs. If we still choose the most optimal version of the wording, then we would settle on this: “property rights of the founder of a private enterprise.”
The possibility of inheriting a private enterprise, and not the property belonging to it, is also recognized by the courts, including at the level of the Supreme Court of Ukraine ( see the ruling dated September 16, 2009 in case No. 6-20439sv07).
We are forced to warn you: due to the existing ambiguity in the legal regulation of the issue of inheritance, in the event of the death of the sole founder of a private enterprise, a notary may refuse to register rights to inheritance, since even the Ministry of Justice indicated the need to apply in such situations to the court with an application for recognition of rights to a private enterprise ( letter of the Ministry of Justice dated August 12, 2008 No. 31-32-1736). However, there is still no need to be afraid of this option: given that when resolving such an issue in court there is no dispute between the parties, there is only the applicant, its consideration, as a rule, is limited to one court hearing.
Having received a certificate of the right to inheritance (either directly from a notary, or after going through court), the last procedural question remains - contact the state registrar in order to register changes in the composition of the owners of a private enterprise. The state registrar, in addition to the certificate of inheritance, will also ask you to provide him with a death certificate (see. letter of the State Committee for Entrepreneurship dated September 15, 2008 No. 7833), the charter in the old (i.e., indicating the former founder) and new (indicating the new founders-heirs) editions.
The share of small and medium-sized businesses in the economic sector is growing steadily. Opening your own business becomes the goal of many citizens - after all, this is the only way (if successful) to ensure a comfortable existence for yourself and your family members. At the same time, no one is eternal. Business inheritance involves many specific legal aspects, which will be discussed below.
And . In the first case, the owner, during his lifetime, draws up a document - a will, in which he indicates to whom the rights will be transferred in the event of his death. The legal successor under a will can be anyone at the discretion of the testator: - individuals - regardless of the presence of family ties;
- organizations;
- state.
The testator determines in what shares the property will be distributed and to whom what is transferred. If the testator does not distribute the entire estate, the remaining assets are divided according to law.
Despite the presence of a will, there are categories of persons who, according to the norms of current legislation, are entitled to. Such persons include minor children, disabled parents or husband/wife and dependents of the testator. They receive at least half of the share that would have been due to them upon inheritance in accordance with the order of succession.
When there is no will, property is distributed in accordance with the order provided by law. In this case, the relatives of the testator, distributed by , are called upon to inherit. The heirs of the subsequent line do not have the right to enter into rights if there are heirs of the previous line. This procedure is regulated by Chapter 63 of the Civil Code of the Russian Federation.
If all heirs refuse to enter into rights, the property is considered escheated. In this case, it becomes the property of the state.
For entering into an inheritance, a period of six months is provided from the date of opening the inheritance case. As a rule, the countdown begins from the date of death of the testator or from the date of entry into legal force of the relevant court decision.
If the heir missed the deadline for accepting the inheritance for a good reason, he has the right to restore it in court. A valid reason may be a serious illness, a long stay abroad without the possibility of leaving, military service, etc.
Problems when inheriting a business
As a general rule, inheritance involves the transfer of powers and obligations from the testator (testator) to his successors. An exception to this is the personal non-property rights of the testator (for example, parental rights in relation to children).
In case of inheritance of a company, the rights to individual property are transferred:
- land ;
- buildings;
- equipment;
- shares and shares;
- objects of intellectual property.
The re-registration procedure will have specific features depending on the legal form. Nevertheless, it is possible to identify general problems of succession.
If the company is owned by several persons , they can prevent entry into inheritance rights. For example, the founders are not always ready to disclose the real value of the company’s assets when the heir does not have such data. In this case, he can go to court, but during this time the co-owners of the company can withdraw a significant share of the assets.
The testator may be the sole owner of the company. If this is so, then until the successor takes over the inheritance, the company will exist without a manager. There is no possibility of giving someone temporary rights as a general director in such a situation. As a result, the company's activities may cease.
The company's charter often includes a clause allowing one-time monetary compensation to be paid to the heir. Founders often use this opportunity to prevent an outsider from joining the ranks of owners.
When there are several heirs, disputes may arise between them. Until the situation normalizes, the company will be very vulnerable to external adverse factors.
Features of business inheritance depending on the legal form
Depending on the specific form of business organization, certain legal nuances of the inheritance process arise. Let's consider how the transfer of rights to an enterprise, LLC and individual entrepreneur occurs.
Company
To enter into inheritance rights, you must begin managing the enterprise. No difficulties arise if the testator independently performed management functions. However, quite often a third-party manager is invited for management, who is assigned rights and obligations based on the contract. In such a situation, it is necessary to study the provisions of the concluded contract governing the termination of the contract.
Difficulties may also arise when inheriting intellectual property, a business name and a trademark. These objects are very specific from a legal point of view and require special professional study. For example, if the company name includes an indication of the owner registered as an individual entrepreneur, then the transfer of rights is allowed only after the heir is registered as an individual entrepreneur.
Limited Liability Company
This organizational and legal form is considered the most common. The LLC inheritance process depends on the number of company founders.
If there is only one owner, then problems rarely arise. The only thing is that controversial situations are possible if there are several heirs. Since there are no other founders, no one will be able to decide to issue monetary compensation or interfere with inheritance in any other way. When the inheritance is accepted, adjustments are made to the constituent documentation and the company’s activities continue.
However, most often there are several owners. In such a situation, the heir receives the share of the authorized capital belonging to the testator. The LLC Charter may contain a clause on the mandatory consent of the remaining founders to the transfer of rights by inheritance to an outsider.
The heir needs to send a request to the founders. In case of disregard or written consent, the successor becomes a co-owner of the LLC.
If the founders refuse to allocate a share, then the heir receives compensation in cash or in the form of a property object, the value of which is equal to the market value of the share of the testator's authorized capital. Compensation is provided within a year from the moment the heir assumes his rights.
Individual entrepreneur
The activities of an individual entrepreneur are connected with his personality. This means that direct inheritance, as is the case with an LLC, will not be possible. The legal successor can inherit only certain business objects:
- current bank accounts;
- real estate;
- equipment;
- other tangible property.
The inheritance mass will include only those objects that are registered as individual entrepreneurs. In other words, the testator’s personal property (car, housing, etc.) will not be included in the inheritance mass.
The rights and obligations of an individual entrepreneur cannot be transferred to a legal successor. If the heir wants to continue the activities of the testator, he will need to undergo state registration with the tax office and renew existing contracts in his name.
It is especially difficult in the situation with individual entrepreneurs to ensure continuous economic activity. This is not the only nuance of IP inheritance:
- The inheritance mass, in addition to property and cash, includes the entrepreneur’s debts to contractors, organizations or the state. If the successor has entered into inheritance rights, he assumes everything. It should be taken into account that the individual entrepreneur is liable for obligations with personal property (with the exception of the only housing, personal items).
- When the estate includes property objects, it is advisable to carry out an inventory. Whether this is necessary or not depends on the number of applicants for inheritance and the waiting period and dispute resolution (usually six months). If there is only one legal successor, no inventory is required.
- If the type of activity of an entrepreneur is subject to compulsory licensing, problems may arise with the inheritance of a permit document. The license cannot be divided among legal successors if there are several of them. In this case it will be cancelled.
During his lifetime, the testator could issue a power of attorney to another person, who was thus endowed with the rights of an individual entrepreneur to conduct business (became a partner). In such a situation, the trustee has a priority right to receive the entrepreneur’s inheritance. The most common type of partnership is between spouses. In fact, both are running a business, but the individual entrepreneur is registered in the name of only one of them.
How to avoid problems when inheriting a business?
Only the testator himself can simplify the procedure during his lifetime. For this it is enough:
- draw up the most detailed will indicating the heirs and the shares allocated to them;
- put all legal documentation in order;
- legitimize existing assets;
- introduce the heirs to the general course of business, introduce the co-founders;
- choose a notary who will handle the inheritance matter.
Unfortunately, the legal successors themselves will not be able to make their task easier. They have very limited rights, so you will have to build on the current situation. It is recommended to contact a professional who will provide assistance and take into account the specific features of a particular legal situation.
