Can my will override the operating agreement to give my business interest to my son? - Pennsylvania
The Short Answer
Usually, no—your will generally cannot “override” an LLC operating agreement’s transfer restrictions or automatically make your son a full member with management rights. In Pennsylvania, a will can direct who receives your economic interest, but the operating agreement often controls whether that person can step into your shoes as a voting/management member.
What Pennsylvania Law Says
Under Pennsylvania’s LLC law, what most people think of as an “ownership interest” is often split into (1) a transferable interest (the right to receive distributions) and (2) membership rights (management/voting and other member-only rights). Even if your will leaves your LLC interest to your son, that transfer may only pass the distribution rights unless the operating agreement (and sometimes the other members) allow admission as a member.
The Statute
The primary law governing this issue is 15 Pa.C.S. § 8852.
This statute establishes that a transfer of a transferable interest generally gives the transferee the right to receive distributions, but does not by itself entitle the transferee to participate in management—and a transfer that violates an operating agreement’s transfer restriction can be ineffective. See 15 Pa.C.S. § 8852(a), (f).
Relatedly, if a member dies, the personal representative’s authority is typically limited to transferee-type rights and information access needed to settle the estate. See 15 Pa.C.S. § 8854.
For more context on how this plays out in real probate administration, you may also want to read: What happens if the operating agreement is silent when I die?
Why You Should Speak with an Attorney
While the statute provides the general rule, applying it to your specific situation is rarely simple. Legal outcomes often depend on:
- Strict Deadlines: Estate administration and business decisions often move quickly after a death; delays can trigger disputes over distributions, control, and valuation (and can complicate probate timelines).
- Burden of Proof: You may need clear documentation showing what exactly is being transferred (economic rights vs. membership/control), and whether the operating agreement permits admission of your son as a member.
- Exceptions: Many operating agreements contain buy-sell provisions, consent requirements, or “permitted transferee” clauses. Under Pennsylvania law, a transfer that violates an operating agreement restriction can be ineffective. See 15 Pa.C.S. § 8852(f).
Trying to handle this alone can lead to family conflict, a failed transfer, or an outcome where your son receives only distribution rights (or even a forced buyout) instead of the role you intended.
If you’re dealing with a current probate, this related article may help frame the issue: Transferring a deceased owner’s LLC interest during probate in Pennsylvania.
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Disclaimer: This article provides general information under Pennsylvania law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.