Can a will override an LLC operating agreement to give my business interest to my son?

Short answer: Generally no. In New Hampshire, an operating agreement is a contractual document that typically controls how membership interests are transferred. A will can pass your ownership interest in an LLC to your estate and name your son as the beneficiary, but the operating agreement and New Hampshire business law usually control whether the son becomes a full member, only receives economic rights, or is required to sell the interest. A will does not automatically erase valid contractual restrictions in the operating agreement.

Detailed answer — how this works under New Hampshire law

Start with two key distinctions:

• Ownership/economic rights (right to distributions, share of profits/losses). These can often be transferred by a will as property of the decedent’s estate.
• Membership/management rights (voting, participation in management). These rights are usually governed by the LLC’s operating agreement and often require member approval to transfer to a new person.

Practical effect under New Hampshire law and common LLC rules:

• Operating agreements are contracts among members. They commonly include transfer restrictions such as buy‑sell provisions, rights of first refusal, or a requirement that the remaining members consent before a transferee becomes a member. Those contractual limits generally remain binding even after a member’s death.
• When a member dies, the member’s will (or intestacy rules if there is no will) controls who inherits the decedent’s property interest. The estate or the person named in the will can inherit the decedent’s economic interest, but that transferee may be an assignee entitled only to distributions until admitted as a full member in accordance with the operating agreement and state law.
• If the operating agreement requires member approval for admission of new members, the executor or heir cannot force admission merely by presenting a will. The transferee may have to accept a buyout under the operating agreement or wait for members to admit them.
• Creditors of the decedent and estate‑settlement obligations can also affect the membership interest passed under a will; an administrator/executor must follow probate procedures and pay valid claims before distributing assets.

Where to look in New Hampshire:

• Read the LLC’s operating agreement carefully. It is usually the controlling document for transfer rules.
• Review the LLC’s certificate of formation/articles to see if they incorporate default statutory rules or modify them.
• Consult the New Hampshire laws and administrative guidance that govern LLCs and probate. New Hampshire’s business filings and probate information are available from the Secretary of State and the New Hampshire Judicial Branch, respectively. See the New Hampshire Secretary of State — Corporation Division: https://sos.nh.gov/corporation-division/ and New Hampshire Probate information: https://www.courts.state.nh.us/probate/. You can also search the New Hampshire Revised Statutes (RSA) at https://www.gencourt.state.nh.us/rsa/ for statutory provisions relating to limited liability companies and probate.

Common scenarios and likely outcomes

1) Operating agreement is silent about transfers on death

If the operating agreement does not address death, state default rules typically allow the heir to receive the economic interest but not automatic admission as a member. The heir may be treated as an assignee and receive distributions unless and until existing members admit them as a member.

2) Operating agreement contains buy‑sell or right of first refusal

Many agreements require the member’s estate to offer the interest for sale to the remaining members or to the LLC at a specified valuation. In that case, the executor must follow the buy‑sell process; the heir may receive proceeds rather than membership rights.

3) Operating agreement requires member consent for new members

Even if your will names your son as the successor owner, the existing members can withhold consent to admission. Your son could still receive economic distributions (if not prohibited) but not management rights until admitted in accordance with the agreement.

Steps an executor or owner should take

1. Locate and read the operating agreement and articles of organization.
2. Contact the LLC (or other members) and review transfer procedures and any buy‑sell valuation formula.
3. Consult the probate court procedures for admitting the will and for transferring assets from the estate.
4. Get a valuation of the LLC interest if a buyout is required.
5. Consider tax and estate planning consequences — a transfer under a will can have income, estate, and gift tax implications.
6. If there is disagreement about interpretation, consider mediation or a probate/civil court filing to determine rights under the operating agreement and the will.

Example hypothetical (illustrative)

Suppose Alice owns 50% of TopTree LLC. Her will leaves “my LLC interest in TopTree LLC” to her son, Ben. TopTree’s operating agreement says that on a member’s death the member’s estate must offer the interest to the other members at fair market value and the surviving members have 60 days to buy it.

Result: Ben inherits the economic interest in Alice’s estate but cannot force admission as a member. The estate must follow the buy‑sell process. If the members elect to buy Alice’s interest, Ben receives the sale proceeds. If they decline and the agreement allows, Ben might remain an assignee receiving distributions but not management rights, or he could be admitted if members consent.

When to get legal help

Talk with an attorney when any of these are true:

• The operating agreement is unclear, contradictory, or missing.
• Members dispute whether the heir should be admitted or require a buyout.
• You need valuation, tax planning, or to navigate probate court.

Helpful hints

• Keep an up‑to‑date operating agreement that expressly addresses death and transfer to avoid uncertainty.
• Consider a buy‑sell funded by life insurance to make a clean transfer at death.
• Use clear estate planning documents (wills, trusts, transfer‑on‑death devices where allowed) that coordinate with your operating agreement.
• If you want a specific person to step into full membership on your death, add that admission pathway in the operating agreement now.
• Executors should notify the LLC promptly and comply with any contractual timelines and notice requirements to avoid losing rights or triggering defaults.
• Document communications with other members in writing, and keep copies of the operating agreement and formation documents with your estate papers.

Resources:

• New Hampshire Secretary of State — Corporation Division: https://sos.nh.gov/corporation-division/
• New Hampshire Judicial Branch — Probate information: https://www.courts.state.nh.us/probate/
• New Hampshire Revised Statutes (RSA) searchable database: https://www.gencourt.state.nh.us/rsa/

Disclaimer: This article provides general information about New Hampshire law and is not legal advice. It does not create an attorney‑client relationship. For advice about a specific situation, contact a licensed attorney in New Hampshire.