The conversion of companies often requires a notarized deed. For example, in the case of a change of form of a GmbH into a GmbH & Co. KG, the change of form decision must be notarized. In the case of a conversion by merger, on the other hand, the merger contract requires a notarial deed. In addition, notarized deeds are also provided by law for other conversions (e.g. introduction). In particular, in situations where rights in a property or real estate are transferred, notarisation is required. Here we inform you about the connections and also mention the exceptions in which no notarization is necessary in the context of a conversion.
Converting a business can seem beneficial for many reasons. The focus is often on considerations regarding the optimization of taxes. Of course, companies are also subject to conversion if other benefits arise. For example, the merger of two companies can lead to increased competitiveness. However, such conversions often also cause consequences that require a notarization. Therefore, in the course of planning the conversion of a company, it must be clarified whether and to what extent a notary should be involved.
Legal basis for notarial deeds for conversions
Since the legislature determines the notarial deed as a formal requirement in a number of legal transactions, the participation of a notary is indispensable, at least in this case. Due to the diversity of the legal contexts in which a notarial deed is prescribed, it also results that these formal provisions are enshrined in the corresponding laws. For example, the notarial deed for the transfer of land is specified in § 311b BGB. However, the amendment of the articles of association in a GmbH’s social contract must be observed on the basis of § 53 (2) GmbHG.
3. The notarization of conversions
In the following sections we deal with the regulations for notarial deed in the context of the conversion of a company separately according to the type of conversion. In doing so, we explicitly indicate in which context a notary is to be included in the legally prescribed deed in any case.
3.1. Notarization of the Change of Form Resolution
If a company is only to change its legal form, this requires, according to § 193 (3) UmwG, a notarization of the change of legal form resolution and the approval of the shareholders with voting rights. This generally applies both when a partnership changes legal form into a corporation and vice versa. In addition, a notarial notarization of the change of legal form decision must also be carried out in the event of a change of legal form from one capital company to another.
The following list is intended to give you an overview of the most important legal forms of companies in which a change of legal form is possible according to § 191 UmwG:
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.