Disclaimer: This article is for informational purposes only and does not constitute legal advice. Always consult a qualified attorney about your specific situation.
Detailed Answer
When a business owner dies, their estate may include shares or membership interests in a corporation. To protect those interests, you must locate and review the company’s formation documents and bylaws. Below are key steps under Nebraska law.
1. Identify the Entity and Its Records
First, confirm the exact legal name and entity type (e.g., corporation, LLC). Use the Nebraska Secretary of State’s Business Entity Search to locate the entity and its file number: Neb. Rev. Stat. § 21-2,103. Formation documents—including Articles of Incorporation or Organization—are public records held by the Secretary of State.
2. Obtain Formation Documents
- Visit the Nebraska Secretary of State’s website or office and request certified copies of the Articles of Incorporation or Organization and any amendments. There is a nominal fee per page.
- Review the Articles to determine authorized shares, classes, and any transfer restrictions imposed at formation.
3. Request Bylaws or Operating Agreement
Bylaws (for corporations) or operating agreements (for LLCs) govern internal operations but are not filed publicly. To obtain them:
- Contact the company’s registered agent or the corporate secretary in writing. Include a copy of the decedent’s death certificate and your appointment as personal representative.
- If the corporation refuses, the personal representative may use probate court authority. Under Neb. Rev. Stat. § 30-24,117, a personal representative has broad powers to demand records necessary to administer the estate.
4. Compel Production via Probate Court
If informal requests fail:
- File a motion in the county probate court where the estate is open, asking the court to order the corporation to produce bylaws and shareholder records.
- Attach the decedent’s interest documentation and show that the records are essential to valuing or transferring the business interest.
5. Review and Analyze
Once you have the documents:
- Examine any buy-sell provisions, transfer restrictions, or right-of-first-refusal clauses.
- Note any director or shareholder approval requirements for transfers.
- Identify deadlines for elections or offers required under the bylaws.
Helpful Hints
- Verify the entity’s exact legal name and file number to avoid confusion.
- Prepare certified copies of letters testamentary or appointment documents to prove your authority.
- Keep a written record of all correspondence and receipt confirmations.
- Note statutory deadlines in the probate code for filing motions or objections.
- Consider consulting an estate or business attorney if you encounter resistance or complex provisions.