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Argued October 20, 2009; decided December 1, 2009
Matter of Hausman, 51 AD3d 922, affirmed.
{**13 NY3d at 410} OPINION OF THE COURT
Ciparick, J.
In this probate proceeding, we are asked to decide whether decedent's children formed a de facto limited liability company (LLC) capable of receiving title to real property that was the subject of a deed executed by decedent shortly before her death. Because no "colorable [*2]attempt" was made to file the articles of organization with the Department of State prior to the date of the alleged transfer, we conclude that there was no de facto entity in existence capable of receiving title to the property and the conveyance is thus void.
The facts are mainly undisputed. On October 16, 2000, decedent Lena Hausman's will was executed. She divided her residuary estate into four equal shares: 25% to her son, George (the executor of her estate); 25% to her daughter, Susan; 25% to the children of her predeceased son, Gerald; and 25% to the children of her predeceased son, Gilbert. Decedent's will empowered her executor, George, to create an LLC and to{**13 NY3d at 411} transfer ownership of her real estate located at 1373 56th Street, in Brooklyn, which generated rental income, to the LLC for the benefit of her heirs. In the event that the LLC was formed and her real property conveyed to it, the will required that the executor "distribute the membership interests in accordance with the directions set forth above" and "[a]ny beneficiary . . . who refuse[d] to cooperate in the establishment of the LLC" would be entitled to the share of the distribution in a special payment.
On October 4, 2001, George and Susan alone executed articles of organization to own, operate and manage the LLC. They also drafted an operating agreement, providing that they would be the sole members of the company and that it would come into existence upon the filing of the articles of organization with the New York Department of State. This would have the effect of depriving the other heirs, decedent's grandchildren, from receiving any benefit from the rental property. Significantly, the articles of organization were not filed with the Department of State until November 16, 2001. On November 2, 2001

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