Detailed Answer
When a business owner dies, the personal representative of the estate must locate and review corporate formation documents and bylaws to determine ownership interests, governance provisions and transfer procedures. Under New York law, these records include the certificate of incorporation (or formation), corporate bylaws, minutes of meetings, stock ledgers and share transfer records.
1. Confirm Personal Representative Authority
Obtain letters testamentary or letters of administration from the Surrogate’s Court. These letters authorize you to act on behalf of the decedent’s estate. Under SCPA §706, the court issues letters once you file the petition, death certificate and proposed executor’s oath (SCPA §706).
2. Obtain Public Corporate Records from New York Department of State
New York maintains public filings for domestic and foreign corporations at the Department of State. You can view or order:
- Certificate of Incorporation: Use the Business Entity Search (DOS Entity Search).
- Certificate of Amendment or Restatement: Download available amendments affecting corporate name, share structure or purpose.
- Certificate of Authority (for foreign entities): If the company was formed outside New York.
You can order certified copies or certificates of good standing for a fee.
3. Inspect Internal Corporate Records
Under Business Corporation Law (BCL), every corporation must maintain records at its principal office (BCL §624). As personal representative, you stand in the decedent’s shoes and may inspect these records.
- Bylaws and Amendments: Bylaws govern voting procedures, director appointments and officer duties.
- Minutes of Shareholders and Board Meetings: Review actions on share issuances, transfers and corporate decisions.
- Stock Ledger and Transfer Records: Confirm the decedent’s share ownership and any transfer restrictions.
Request inspection in writing. The corporation must permit inspection and copying within two business days (BCL §626).
4. Review and Analyze Documents
Once you collect the documents, focus on:
- Transfer Restrictions: Many bylaws require board approval or a right of first refusal.
- Buy-Sell Agreements: These trigger events on death or disability and set valuation procedures.
- Voting Rights: Determine if the decedent’s shares grant special voting power or dividend rights.
- Filing Requirements: Amend the share ledger and file required documents with DOS upon transfer.
5. Resolve Disputes and Enforce Inspection Rights
If the corporation refuses to provide records, you can petition a court for an order compelling inspection under BCL §627 (BCL §627). A New York Supreme Court action may enforce your statutory rights and recover fees.
Helpful Hints
- Keep certified copies of your letters testamentary when requesting records.
- Request records in writing and track delivery dates to ensure compliance.
- Check for any pending amendments to bylaws before relying on older versions.
- Maintain a timeline of when and where documents were requested and received.
- Consult a probate attorney if record disputes or valuation issues arise.
Disclaimer: This article provides general information about New York law. It does not constitute legal advice. You should consult a licensed attorney to address your specific situation.