Surrogate Diana Johnson

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Decedent was survived by three children, John, Stephanie and Michael. John petitioned to probate a copy of a 2010 will, applying for temporary letters of administration. Stephanie filed a waiver and consent, but Michael did not, moving, instead, to dismiss the proceeding for lack of subject matter jurisdiction—that was denied. The probate proceeding was settled by stipulation between Michael and John. Among the estate’s assets were decedent’s 64 percent interest in a family LLC—the other 36 percent was held by John and Michael. Stephanie petitioned for John to sell the LLC and distribute 50 percent of the proceeds to her. John moved for dismissal and approval of distribution of 78.66 percent of the LLC to him. As John conceded no operating agreement was found, the Limited Liability Corporation Act controlled, providing that the death of a member would not cause dissolution of the LLC unless members voted to dissolve within 180 days following the member’s death. The court found under the parties’ stipulation Michael could only consent to distribution of his 18 percent interest, plus 21 1/3 percent of testator’s interest received by intestacy to John. Thus, John’s motion to dismiss Stephanie’s petition was granted for failure to state a cause of action.