Death of a shareholder: how to transfer shares owned by someone who has died

The death of a shareholder will inevitably raise questions about what should happen to the deceased's assets, and how they should be passed on to beneficiaries.

With business owners and executors in mind, here we outline four useful steps to consider when transferring the shares of a shareholder who has died.

We assume here that the executors have obtained confirmation (in Scotland) or probate (in England).

Step 1: Check the will, Articles of Association and any Shareholders' Agreement

The will

Perhaps the most obvious first port of call when dealing with a deceased shareholder's shares is the deceased's will. Assuming the deceased has a will, any wishes therein as to how the deceased's business assets should be distributed will be subject to any contracts made prior to the death. In the corporate context, this requires the executors to check:

The articles of association

The executors should consult the articles of association for the company in which the deceased's shares are held. A company's articles of association are publicly available on Companies House.

Any shareholders' agreements

The executors should also enquire as to whether a shareholders' agreement was documented if the relevant company has two or more shareholders. A shareholders' agreement is a private agreement between some or all of the shareholders, usually regulating how the company will be run, and how certain key decisions will be made. Given that a shareholders' agreement is a private document, it will not be available on Companies House. The executors should check amongst the deceased's papers and make enquiries with the remaining shareholders.

Step 2: Consider conflict – do the articles or shareholders' agreement impact the wishes expressed in the deceased's will?

Articles and shareholders' agreements will commonly contain provisions dealing with how shares can be transferred. These provisions must be followed for the transfer to take effect.

It may well be the case that these provisions accord with the deceased's will, and transfer to the intended beneficiary presents no difficulty. However, it may also be the case that the provisions conflict with the wishes expressed in the deceased's will, making transfer problematic. In such cases, the provisions of the articles or shareholders' agreement will take precedence over the deceased's will and frustrate the deceased's wishes.

Transfer provisions also commonly require a procedure to be followed before transfer can be made. Some non-exhaustive examples of such transfer provisions might be that:

The death of a shareholder automatically triggers a compulsory offer round of the deceased's shares to the remaining shareholders. If the remaining shareholders decline to take up the offer, the shares can be transferred to a third party;
Directors can refuse, in their absolute discretion, to register a share transfer;
Share transfers to family members or family trusts are "permitted transfers". All other proposed share transfers are prohibited unless existing members have been offered the shares first and declined.

Step 3: Check any cross option agreements

Executors should also check whether the deceased entered into any other agreements which may affect the treatment of shares on death.

An example of such an agreement is a 'cross option agreement'. This kind of agreement provides that, if a shareholder dies, the existing shareholders can require the deceased's shares to be transferred to them, while the executors could require the remaining shareholders to buy the shares held by the estate.

In the same way as articles and shareholders' agreements, a cross option agreement would also take precedence over the terms of the will if the terms of the will were inconsistent with the agreement.

Step 4: Consider the practicalities of transferring shares by executors

Again, the particular practicalities to be followed will be dictated by the company's articles of association, which will need to be checked carefully.

Generally, however, articles will commonly provide that executors have two options when transferring the deceased's shares:

To become a shareholder themselves; or
To transfer the shares directly to a nominated person of their choice (subject to any restrictions on transfer as discussed above).

In either case, the articles will normally require the executors to provide the company's directors with "such evidence of entitlement as to shares as the directors may properly require". Typically, such evidence will be the grant of confirmation in Scotland, or probate in England.

Once confirmation (or probate, as the case may be) has been granted, the first practical step in transferring the shares is the completion of a stock transfer form, completed by the executors. In normal course, the executors will certify on the back of the form that no stamp duty is payable.

The second practical step in transferring the shares is a resolution of the company's directors approving the share transfer. The deceased's share certificate will then be cancelled, and a new certificate will be issued in the name of the executors, or the transferee, and the company's registers will be updated.