Yes — the Operating Agreement Controls LLC Transfers, Not Your Will
In Georgia, your LLC operating agreement is the governing document for what happens to your membership interest when you die. Your will does not override it. Your will can instruct your executor to transfer the interest to a named beneficiary — and that transfer will happen through probate — but the character of what the beneficiary receives is set entirely by your operating agreement and Georgia default law.
This surprises most business owners, because a will feels like the document that controls where your property goes. For most assets — bank accounts, personal property, real estate held in your name — that is true. LLC membership interest is different. It is governed by O.C.G.A. § 14-11-503, which gives the operating agreement authority to restrict, condition, or define all transfers of membership interest. Your will is subordinate to that authority.
The short version: your will moves the interest. Your operating agreement decides what the recipient gets.
What Your Will Actually Does With LLC Interest
When you die with LLC membership interest in your name, your will directs your executor to transfer that interest to your named beneficiary. The interest goes through Georgia probate — typically 9 to 18 months — and at the end of that process, the beneficiary receives the interest. So far the will is doing exactly what you intended.
The problem is what happens next. Under O.C.G.A. § 14-11-506, a deceased member’s legal representative holds only assignee rights in the LLC. Not full membership. Not voting rights. Not management authority. The beneficiary who received your LLC interest through your will inherits an economic stake — but not a seat at the table.
Assignee rights under O.C.G.A. § 14-11-301 include the right to receive distributions, a share of profits and losses, and a liquidating distribution if the LLC winds down. What assignee rights do not include: the right to vote, the right to participate in management, the right to access company records, or the right to bind the LLC in any transaction. For a surviving spouse who expected to take over the business, this is a critical gap. See What Are Assignee Rights in a Georgia LLC for the full breakdown.
What “Assignee Rights Only” Means in Practice
Your spouse receives your LLC interest through your will. They are now an assignee. Here is what that means on Day 1 after probate closes:
1
They receive distributions
If the LLC generates profit and distributes it to members, your spouse receives their share. The economic interest transfers. This is the only right the will secures.
2
They cannot vote or manage
Your spouse cannot attend member meetings, vote on business decisions, sign contracts on behalf of the LLC, or direct operations. Management authority did not transfer with the interest.
3
They cannot become a full member without consent
Under O.C.G.A. § 14-11-503, becoming a full member with voting and management rights requires unanimous consent of existing members — unless the operating agreement says otherwise. For a single-member LLC, there are no other members to consent, so this may resolve automatically. For a multi-member LLC, your co-owners decide whether your spouse gets a real seat.
Multi-Member LLCs — Co-Owners Can Block Your Will’s Intent
In a multi-member LLC, the operating agreement often includes a right of first refusal (ROFR). When you die, your co-owners have the right to purchase your interest before it transfers to your heirs. The operating agreement defines the exercise window — commonly 30 to 60 days — and the purchase price method.
This means your will can name your spouse as the recipient of your LLC interest, but if your co-owners exercise their ROFR, your spouse receives the buyout proceeds instead of the interest itself. The will gets overridden — not illegally, but contractually, because you agreed to the ROFR when you signed the operating agreement.
Even without a ROFR, the operating agreement may require member consent for any transfer. If your co-owners withhold consent, your spouse remains an assignee with economic rights only — regardless of what your will says. For a complete picture of what co-owner agreements do at death, see How Does an LLC Operating Agreement Protect a Georgia Business Owner.
The Pour-Over Will Does Not Solve This Problem
Many business owners use a pour-over will — a will that instructs the executor to transfer all assets into a revocable trust at death. The assumption is that the pour-over will captures LLC interest and sends it to the trust, where the successor trustee can manage it without court involvement.
This assumption has two problems. First, a pour-over will must go through probate before assets transfer to the trust. The LLC interest sits in probate for 9 to 18 months before it reaches the trust — defeating the probate-avoidance purpose of the trust entirely. Second, once the LLC interest emerges from probate and enters the trust, the operating agreement still governs what the trust receives. If the OA does not permit trust ownership or does not grant the trust full membership rights, the trust is an assignee just like any other heir.
The pour-over will is a safety net for assets accidentally left out of the trust. It is not a mechanism for bypassing the operating agreement or avoiding probate on LLC interest.
The Fix — Align Your Operating Agreement and Estate Plan
The correct approach is to address LLC succession at the source — in the operating agreement — and to transfer the LLC interest into your revocable trust during your lifetime. Both steps are required.
1
Add successor-member language to your operating agreement
The operating agreement should name who becomes a full member upon your death and grant them full membership rights automatically — without requiring unanimous consent from co-owners. This provision overrides the default assignee-only rule. For step-by-step instructions, see How to Update Your LLC Operating Agreement for Succession in Georgia.
2
Transfer LLC membership interest into your revocable trust now
If the trust owns the LLC interest during your lifetime, there is nothing to transfer at death. The interest does not go through probate. Your successor trustee takes over management of the trust — including its LLC interest — without court involvement and without waiting for the will or the operating agreement to resolve a conflict. This is the most reliable path to business continuity. See How to Transfer Your LLC Into a Trust in Georgia.
3
Confirm the operating agreement permits trust ownership
An operating agreement that restricts transfers or requires member consent may inadvertently block the trust transfer. Before deeding the interest to your trust, confirm the OA permits it — or amend it to do so. A transfer restriction that applies to third parties should explicitly carve out transfers to a grantor’s own revocable trust. Without this carve-out, the transfer itself may be prohibited.
