FORMING AN LLC

Although you can choose to form an LLC in any state—even if the LLC won’t be doing any business there —most LLC owners choose to form an LLC in the state in which they plan to do business—which in many cases is the state they live in. One reason for that is that if the LLC is formed in a state where it is not doing business—Delaware is the usual choice for these LLCs—the LLC will have to register as a foreign LLC (aka foreign qualify) to do business in the state where it is doing business, which can increase formation and administrative costs.

It’s important to note that the cost, taxation, and LLC laws vary from state to state, making some states more advantageous for certain small business owners. Read more about how to select a state for LLC formation.

In order to form an LLC, you’ll have to choose a name that is not already on the Secretary of State’s records as being the name of another domestic or qualified LLC or other business entity. Many sole proprietors operate under a registered “doing business as” (DBA) name or trade name and may want to use that as their LLC’s legal name.

In forming an LLC or registering an existing LLC to transact business in a foreign state, you are required to have a registered agent in the state of formation or qualification. Many new business owners are either unfamiliar with the term registered agent or do not know the purpose of a registered agent.

A registered agent, also known as an agent for service of process, receives important legal notices and tax documents on behalf of an LLC. These include important legal documents, notices, and communications mailed by the Secretary of State (such as annual reports or statements) and tax documents sent by the state’s department of taxation. A registered agent also must be available to receive service of process (sometimes called Notice of Litigation), which are legal documents—typically a summons and complaint, that provide notice that a lawsuit has been filed against the LLC. Other court documents such as garnishment orders and subpoenas are also served on the registered agent.

While the owner of an LLC can choose to serve as the LLC’s registered agent, there are a number of compelling reasons why business owners—even the smallest ones—choose a registered agent service provider to assist with this important requirement. Among other things, if the registered agent is not available when these time-sensitive documents are delivered, or if the person receiving them mishandles them, it can cause the LLC serious problems. The registered agent must also have a physical address in the state, and cannot use a PO Box.

An LLC operating agreement is required in nearly every state. And although in most states it can be oral, it is highly recommended that every LLC have a written operating agreement. As the name implies it is an agreement among the members and between the LLC and the member or members as to how the LLC will be operated. Even if you are the only member it is important to have an operating agreement. It shows you respect the LLC’s separate existence (and can help avoid piercing the veil), it gives you a chance to put in writing what you want to happen in certain circumstances such as if you can no longer manage the business and allows you to opt out of certain default provisions of the LLC statute that you might not want the LLC to be governed by.

It is particularly important for multi-member LLCs to have a well-drafted operating agreement. This document will clearly spell out the division of ownership, labor and profits, and often heads off disputes among the owners. It should detail, among things, who has authority to do what, what vote is required to approve certain transactions, how membership interests can be transferred, how new members can be added, how distributions, profits and losses will be split, and more. It is recommended that the operating agreement be reviewed by your attorney to be sure that all the bases are covered.

To make your new LLC officially exist you must file LLC formation documents (also known as a Certificate of Organization, Certificate of Formation, or Articles of Organization) with the Secretary of State’s office or whichever department handles business filings in the state in which you are forming. Filing fees vary across the U.S.

Did you know?

What about LLC Articles of Organization?

Although it may be common to hear of an LLC being “incorporated”, the correct way to describe the creation of an LLC (or any entity type other than a corporation) is to say that it has been “formed” or “organized”. “Incorporation” and “Articles of Incorporation” are terms that apply to a corporation (regardless of whether it is taxed as a C corporation or S corporation).

While each state’s LLC formation document is different to some extent, there are several common elements. These include the following:

Name, principal location and purpose of the business
Registered agent’s name and physical address
Whether the LLC will be member-managed or manager-managed
Standard forms for the articles of organization for an LLC are generally available from each state. The person who formed the LLC must sign the paperwork. In most cases that does not have to be a member or manager. In some states, the registered agent’s consent to act as registered agent is also required.

Once approved and filed, the state will issue a certificate or other confirmation document. The certificate serves as legal proof of the LLC’s status and can be used to open a business bank account, obtain an EIN, and so on. Some states may also require that you publish a notice, often in a local newspaper, confirming the formation of the LLC.

After establishing the business entity, you must apply to the Internal Revenue Service for an employer identification number (EIN). This is the identification number your LLC will use on all its bank accounts, as well as income and employment tax filings. In addition, in each state in which the LLC will be doing business, you must apply to the state's tax department for a sales tax identification number and register with the state's labor department.

This step is not a legal requirement but is a key best practice for anyone who is creating an LLC and is one of the steps outlined in our guide: 10 Steps to Starting a Business. It is crucial to separate business finances from personal ones. This is one of the main factors courts consider when deciding whether to pierce an LLC’s veil and hold the member liable for the LLC’s debts. A business credit card can also be used to keep personal and business transactions separate, as well as to help build business credit.

Most banks require company details, such as formation date, business type, and owner names and addresses. Contact your bank about requirements prior to opening an account.

If the LLC you formed is going to be doing business in more than just the formation state, you will have to register—or foreign qualify—in each “foreign” state. That generally requires filing an application for authority with the Secretary of State. A Certificate of Good Standing is often required as well. The LLC will also have to appoint and maintain a registered agent.

Many factors are used to determine whether a company is transacting business in a state, and therefore needs to foreign qualify. Some of the common criteria include whether your company -

• has a physical presence in the state
• has employees in the state
• accepts orders in the state

Note: that different states have different criteria. To determine whether your LLC needs to foreign qualify in a certain state, it is best to seek the legal advice of an attorney.
Most banks require company details, such as formation date, business type, and owner names and addresses. Contact your bank about requirements prior to opening an account.