Detailed Answer
When a shareholder or member dies, you may need to locate an entity’s formation papers and governance rules to determine ownership rights and transfer procedures. In South Dakota, corporations hold articles of incorporation and bylaws, while limited liability companies maintain articles of organization and operating agreements.
1. Identify the Entity Type and Documents
Confirm whether the decedent’s interest lies in a corporation or an LLC. Corporations maintain articles of incorporation and bylaws (SDCL § 47-1A-401: https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Statute=47-1A-401; SDCL § 47-1A-303: https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Statute=47-1A-303). LLCs use articles of organization and operating agreements under SDCL Chapter 47-34A.
2. Search and Request Records from the Secretary of State
Use the South Dakota Secretary of State Business Entity Search: https://sdsos.gov/business-services/business-entity-search. Locate the entity by name, then submit a records request for certified copies of the articles of incorporation or organization and any amendments. Fees vary; see the Secretary of State fee schedule online.
3. Exercise Statutory Inspection Rights
Under SDCL § 47-1A-403 (Inspection Rights of Shareholders): https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Statute=47-1A-403, shareholders may inspect books and records, including bylaws and minutes, for any proper purpose. Submit a written demand to the corporate secretary stating your interest and the records you request. The corporation must respond within five business days.
4. Obtain Bylaws or Operating Agreements
If bylaws or operating agreements are not publicly filed, include them in your inspection demand. Corporations typically keep bylaws at their principal office. LLC operating agreements may reside with the registered agent or inside company records.
5. Use Probate Authority if You Are the Personal Representative
If you serve as executor or administrator under a probate appointment (SDCL Title 29A), present your letters testamentary or letters of administration to the corporation or third parties to request records. Courts may compel production under SDCL § 29A-3-708.
6. Review Transfer and Succession Provisions
Study sections in the articles and bylaws that address the death of a shareholder. Many documents include buy-sell provisions, board-approval requirements, or restrictions on transferring shares to heirs.
7. Consult an Attorney for Complex Issues
Complex disputes or unclear governance provisions may require legal interpretation. An attorney can guide you through corporate law and estate administration.
Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Helpful Hints
- Maintain a copy of every written records request and any responses.
- Verify you request the latest amendments alongside original documents.
- Look for share-transfer restrictions or heir-admission rules in bylaws.
- Use certified copies when submitting to probate court.
- Keep open communication with corporate officers or the registered agent.