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TYPE
Original Research
PAGE NO.
216-219
10.37547/tajpslc/Volume07Issue05-23
OPEN ACCESS
SUBMITED
28 March 2025
ACCEPTED
24 April 2025
PUBLISHED
26 May 2025
VOLUME
Vol.07 Issue05 2025
CITATION
Khamdambek Atajanov
. (2025). Transfer of Participant’s Share in The
Charter Capital of a Limited Liability Company by Way of Legal Succession:
Challenges and Solutions. The American Journal of Political Science Law
and Criminology, 7(05), 216
–
219.
https://doi.org/10.37547/tajpslc/Volume07Issue05-23
COPYRIGHT
© 2025 Original content from this work may be used under the terms
of the creative commons attributes 4.0 License.
Transfer of Participant’s
Share in The Charter
Capital of a Limited
Liability Company by Way
of Legal Succession:
Challenges and Solutions
Khamdambek Atajanov
Tashkent State University of Law, Tashkent, Uzbekistan
Abstract:
This article examines the inheritance-based
transfer of a participantʼs
share in the charter capital of
a limited liability company. The author analyses the
interplay between civil, family, and corporate legal
norms, focusing on legal constraints, shareholder
consent requirements, and procedures for the payment
of the shareʼs
actual value. The paper also draws upon
foreign legal practice and theoretical perspectives to
suggest solutions to practical legal issues.
Keywords:
Limited liability company, share, inheritance,
legal succession, company charter, consent, actual
value.
Introduction:
The peculiarity of the transfer of a share
in a limited liability company by way of legal succession
(inheritance) lies in the fact that such relations are
regulated by the norms of civil law (inheritance), family
law, and corporate law.
To begin with, if we consider the general foundations of
inheritance, Chapter 66 of the Civil Code sets out the
general provisions on succession, according to which
inheritance is carried out by will and by law. According
to Article 1113 of the Civil Code, all rights and
obligations belonging to the decedent at the time of the
opening of the inheritance, which do not cease upon
death, are included in the estate. However, the second
paragraph of part two of this article stipulates that
membership in legal entities such as commercial
organizations and other institutions, and the rights of
participation in them, unless otherwise provided by law
or contract, are not included in the inheritance.
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The American Journal of Political Science Law and Criminology
At the same time, according to Article 20 of the Law
“On Limited
Liability Companies,” shares in the charter
capital of the company are transferred to the heirs of
individual participants and to the legal successors of
legal entities that are participants of the company.
In our view, the issue of the transfer of rights and
obligations of a company participant to an heir
requires the partial application of the relevant
provisions of the Civil Code, as the acquisition of
participant status is governed by corporate legislation.
It is noteworthy that even within the Civil Code itself,
when addressing the transfer of shares in the charter
capital of a company to the heirs of individuals and the
legal successors of legal entity participants, it is
stipulated that the rights associated with the
personality of the participant
–
namely, the non-
property (organizational) rights, such as the right to
participate in the management of the company
–
do
not form part of the estate.
In accordance with the legislation, until the inheritance
is accepted by the heir of the deceased participant of
the company, the rights of the deceased participant
shall be exercised by the person indicated in the will,
and the obligations shall be fulfilled by that person. In
the absence of such a person, the rights and
obligations shall be exercised and fulfilled by a
manager appointed by a notary.
If the company’s charter provides that the consent of
the participants is required for the transfer of a share
(or part of a share) in the charter capital of the
company to heirs or legal successors, or for the
distribution of a share (or part of a share) among the
participants of a dissolving legal entity, such consent
shall be deemed to have been obtained if, within thirty
days from the date of request to the company
participants
–
or within another period specified in the
charter
–
written consent from all participants is
received, or if no written refusal has been received
from any of the participants.
In cases provided for in parts fourteen, fifteen, and
sixteen of Article 20 of the Law “On Limited Liability
C
ompanies,” if the participants of the company refuse
to give consent to the transfer or distribution of a share
(where such consent is required by the company’s
charter), the share shall be transferred to the
company. In such a case, the company must pay the
heirs of the deceased participant, the legal successors
of a reorganized legal entity participant, or the
participants of a dissolved legal entity participant
–
depending on the circumstances
–
the actual value of
the share, calculated on the basis of t
he company’s
accounting records for the last reporting period
preceding the date of death, reorganization, or
dissolution. Alternatively, with their consent, the
company may transfer to them property of equivalent
value in kind.
From the above provisions, it can be concluded that
certain restrictions may apply for an heir to receive a
share in a company by way of inheritance. As noted by
Ye.A. Sukhanov, who theoretically justified the
existence of such restrictions, legislation may introduce
exceptions to the general rules of inheritance in order
to protect the interests of participants in collective
entities (corporate participants) under market
conditions.
According to Remizova, who conducted research in this
field, these exceptions are said to be based on the
theory of the dichotomy of the status of the share
recipient found in American legislation regarding the
inheritance of shares. Under this theory, the recipient of
the share may hold one of two statuses: first, as an
assignee; and second, as a member of the corporation.
These exceptions primarily arise from corporate legal
relations, that is, in the process of transferring shares by
way of inheritance, family law and corporate law norms
often come into conflict. This conflict is especially
evident when the surviving spouse claims the deceased
spouse’s share in the company as part of the
inheritance.
According to Article 23 of the Family Code of the
Republic of Uzbekistan, property acquired by the
spouses during the marriage, as well as property
acquired before the official registration of marriage
using the couple’s joint funds, shall be considered their
joint property, unless otherwise provided by law or the
marriage contract. Furthermore, part two of the same
article specifies that movable and immovable property,
securities, shares, deposits, and interests in the capital
of credit institutions or other commercial organizations,
as well as any other property acquired by the spouses
during the marriage
–
regardless of whose name it is
registered in, or which spouse made the monetary
contribution
–
shall be considered their joint property.
In such cases, according to some researchers, the norms
of family law should take precedence
–
meaning that
the rights of the spouse who is not a participant in the
company must be recognized with respect to the share.
In this context, it is necessary to refer to the decision of
the Constitutional Court of the Russian Federation
concerning uncertificated (document-free) shares. The
Court held that if uncertificated securities are acquired
by one of the spouses during the marriage, they are
considered to be part of the couple’s joint property.
Another problematic issue in these legal relations
concerns the timing of the transfer of a share by
inheritance. As a general rule, the moment of transfer
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The American Journal of Political Science Law and Criminology
of the share to the heirs is considered to be the time
when the amendments to the company’s charter –
based on documents confirming the heirs’ right to the
share
–
are registered with the state.
However, this matter is also subject to scholarly
debate. According to Novoselova, the inherited shares
are considered transferred to the heirs only after the
relevant amendments have been introduced into the
company's charter. .
In her research on the timing of share transfers, the
scholar Remizova identifies three prevailing views and
argues that two situations must be distinguished. First,
where the consent of the other participants is not
required for the transfer of a deceased participant’s
share to the heirs. Second, where such consent is
required, in accordance with the company’s charter.
Let us first consider the case where no consent is
required from the other participants. As previously
noted, in such instances the share passes by way of
inheritance from the moment the inheritance is
opened. From a theoretical standpoint, since no
consent is required for the transfer, it seems logical
that the rights and obligations associated with the
share should also pass to the heirs from the moment
the inheritance is opened.
In her analysis of judicial practice, the researcher
highlights that there are three distinct approaches
taken by courts in determining the moment of transfer
of a share on this basis:
1.
From the moment the inheritance is opened;
2.
From the moment the company is notified of
th
e heir’s right to the share;
3.
From the moment the transfer of the share
based on inheritance rights is registered by the state.
In examining the first position, it should be noted that
under the general rules of succession, the heir acquires
the right to receive their share of the estate (including
a company share), unless they later renounce the
inheritance, are disqualified from inheriting, or the will
appointing them is declared invalid. This principle is
enshrined in Article 1145 of the Civil Code.
Therefore, it can be concluded that the share in the
charter capital of a limited liability company passes to
the heir from the moment the inheritance is opened. If
the company charter does not explicitly require the
consent of the participants for such a transfer to heirs,
then the heir obtains the status of a company
participant.
However, in practice, there may be objective
circumstances that make it impossible to admit heirs
as participants in the company. For instance, if the
inclusion of heirs would cause the number of
participants in the company to exceed the statutory
limit of 50, the company would be required to
reorganize into a joint
–
stock company or a production
cooperative. In this case, we believe that it is reasonable
for the participants to refuse consent, since they have a
legitimate interest in preserving the current
organizational
–
legal form of the company.
Furthermore, such reorganization may have economic
consequences for the company. For example, under
Article 52 of the Civil Code, reorganization may give
creditors the right to demand early fulfillment or
termination of obligations and compensation for
damages if the company’s legal status changes.
Otherwise, the company may be subject to liquidation.
Another issue that gives rise to debate is the inclusion of
a prohibition in the company’s charter on the transf
er of
a share to the heirs of a deceased participant. Since
there is no specific rule in the law regarding this matter,
some scholars argue that such a prohibition should be
considered invalid by default.
According to N. Mikheyeva, if the company’s charter
prohibits the transfer of a participant’s share to their
heirs after death, then there should not be provisions
stating that the value of the share in the charter capital
will be paid out to the heir without granting them the
right to participate in the c
ompany’s activities.
There are also opposing views on this issue. Various
sources mention the possibility of prohibiting the
transfer of a share by inheritance in the company’s
charter, although no legal justification is typically
provided. This position is supported by Novoselova, who
argues that the company’s charter may include a
prohibition on the transfer of a participant’s rights and
obligations to their heirs. Such a provision in the charter
is seen as a form of prior dissent expressed by the
participants of the company regarding the transfer of
membership rights and obligations to heirs. In this case,
the share is deemed to have transferred to the company
from the moment the inheritance is opened.
Another issue that gives rise to legal discussion in these
relations is the payment of the actual value of the share
to the heirs. According to part fourteen of Article 20 of
the Law “On Limited Liability Companies,” if the
company’s participants refuse to consent to the transfer
or distribution of a share (where such consent is
required by the company’s charter), the share shall be
transferred to the company. In such cases, the company
is obliged to pay the heirs of the deceased participant,
the legal successors of a reorganized legal entity
participant, or the participants of a dissolved legal entity
participant the actual value of the share, calculated on
the basis of the company’s accounting data for the last
reporting period prior to the date of death,
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reorganization, or dissolution. Alternatively, with the
consent of the relevant parties, the company may
transfer to them property of equivalent value in kind.
In this context, the company’s obligation to pay the
actual value of the share and the heir’s right to receive
such payment arises from the moment any participant
refuses to consent to the transfer or distribution of the
share to the heirs of an individual participant, the legal
successors of a legal entity, or the participants of a
dissolved legal entity. This means that the company’s
duty to pay the actual value of the share arises from
the date on which the first written refusal is received.
1.
The payment of the actual value of the share
may be carried out in two forms:
2.
In monetary form;
3.
In property in kind of equivalent value, with
the consent of the heir.
It is important to emphasize that the company has the
right, but not the obligation, to provide property in
kind instead of paying the actual value in cash. The heir
does not have the right to demand specific property of
equivalent value instead of the monetary payment.
CONCLUSION
In conclusion, the transfer of a share in a limited
liability company by way of inheritance is a complex
legal institution located at the intersection of civil,
family, and corporate law. Although the current
legislation provides a general regulatory framework for
this process, a number of uncertainties, ambiguities,
and practical problems remain. These include: the
treatment of non-property (organizational) rights
attached to the share, the requirement of participant
consent, the determination of the time of transfer, and
the mechanisms for the payment of the actual share
value by the company.
The analysis presented in this article demonstrates the
need for further clarification of corporate law norms in
this area and their harmonization with family and civil
law. Additionally, taking into account comparative
foreign legal experience, the development of norms
that strengthen the legal guarantees for heirs in
acquiring participant status remains an urgent task.
Thus, resolving the legal challenges associated with the
inheritance of a share in an LLC is of vital importance
not only for safeguarding the rights of heirs, but also
for ensuring the stability and continuity of the
company itself.
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