The Certificate of Formation is the document you receive from the state of Delaware once your LLC is filed and approved by the Delaware Secretary of State, Division of Corporations.
The Delaware LLC Certificate of Formation is akin to a birth certificate for your newly-created Delaware LLC.
Your approved and original Certificate of Formation, which will be emailed to you, is a black and white document with a time-stamp and date-stamp in the corner that indicates it has been approved by the Delaware Secretary of State.
This Certificate of Formation is the only document you are required to file in order to create a Delaware LLC. The Delaware LLC Certificate of Formation remains on file with the Delaware Secretary of State, and is required to contain only three items:
The ownership, operation and management of the LLC are set forth in the company's LLC Operating Agreement, which is not required to be filed with the state and can therefore be changed without the company ever having to pay a fee to file an amendment.
You can, if you so desire, elect to add additional information to your Certificate of Formation. This is a personal choice with advantages and disadvantages.
Some people want the LLC's members' names listed on the Certificate, or the titles of the LLC's members, or perhaps the physical business address. These people typically feel more secure in knowing their name has been filed with the state as a member of the LLC, in case a dispute over ownership should arise at any point.
One of the disadvantages of listing extra information on the Certificate is that in order to make any changes, an amendment must be filed with the state. Not surprisingly, the state charges a hefty fee to file an amendment; the thought of this superfluous fee is unappealing to many clients, which is why most people choose not to list any additional information on their Certificate of Formation.
If you are preparing your own Delaware LLC Certificate of Formation, your name will be listed on the Certificate as the Delaware LLC's authorized person; this is is why many people opt to have us act as their Delaware Registered Agent.
We can prepare the Delaware LLC Certificate of Formation for you, which allows you to take full advantage of the privacy offered by the Delaware LLC Act.
THE AUTHOR OF THIS BLOG ARTICLE IS NOT A LAWYER AND HARVARD BUSINESS SERVICES, INC. IS NOT A LAW FIRM. THE ARTICLE ABOVE IS NOT INTENDED AS LEGAL ADVICE AND SHOULD NOT BE TAKEN AS LEGAL ADVICE. THIS SHORT ARTICLE IS STRICTLY TO MENTION SOME ASPECTS OF DELAWARE’S CORPORATION LAWS AND/OR LAWS RELATING TO OTHER FORMS OF ENTITIES WHICH YOU MAY NOT BE FAMILIAR WITH. WE RECOMMEND THAT YOU CONSULT WITH A LAWYER BEFORE FORMULATING A STRATEGY WHICH WILL BE SUITABLE FOR YOUR SPECIFIC CASE.
There are 8 comments left for What is a Delaware LLC Certificate of Formation?Monica Falcone said: Tuesday, November 15, 2016
What if the single member dies? The operating agreement has a provision that allows a family member to take over. Would that still be an amended Certificate of Formation if the new family member/owner signs on the LLC's behalf?HBS Staff replied: Thursday, November 17, 2016
An LLC does not have a fixed life term, and can remain in existence, even after the death of one or more members. A carefully drafted LLC Operating Agreement can help to ensure a smooth transition of control after the death of a key member, making the LLC an attractive vehicle for family estate planning. The LLC Operating Agreement will allow control over the LLC, its assets and/or its business to be passed along to surviving family members.
You can read more here: https://www.delawareinc.com/blog/estate-planning-with-a-delaware-llc/
Jayro said: Friday, October 21, 2016
So, if I'm understanding this correctly, as a single-owner LLC, the only thing that's actually *required* is the Certificate of Formation. The LLC Operating Agreement, while recommended by some attorneys, is not a legal requirement. Is that correct? Are there any other hard-letter filing requirements for single-owner LLC's other than the Certificate of Formation?HBS Staff replied: Friday, October 21, 2016
To stay compliant with the State of Delaware Division of Corporations, the LLC must have a Registered Agent at all times and pay the yearly $300 Delaware Franchise Tax. Typically, even a single member LLC will have an LLC Operating Agreement on file internally in the entity.BB said: Friday, October 14, 2016
Can the authorized person sign the name of the LLC that is being created? How much is the fee to amend a certificate of Formation?HBS Staff replied: Monday, October 17, 2016
The fee to amend a Certificate of Formation is $450 plus any applicable Franchise Tax.
An individual must always sign for LLC-related services, even if the responsible party/member/manager is an LLC. An individual still must sign on the LLC’s behalf.
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