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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. This should not be confused with a Certificate of Incorporation, which is what a corporation (as opposed to an LLC) receives when filed.
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.
*Disclaimer*: Harvard Business Services, Inc. is neither a law firm nor an accounting firm and, even in cases where the author is an attorney, or a tax professional, nothing in this article constitutes legal or tax advice. This article provides general commentary on, and analysis of, the subject addressed. We strongly advise that you consult an attorney or tax professional to receive legal or tax guidance tailored to your specific circumstances. Any action taken or not taken based on this article is at your own risk. If an article cites or provides a link to third-party sources or websites, Harvard Business Services, Inc. is not responsible for and makes no representations regarding such source’s content or accuracy. Opinions expressed in this article do not necessarily reflect those of Harvard Business Services, Inc.
There are 10 comments left for What is a Delaware LLC Certificate of Formation?Mark Kelly said: Friday, April 7, 2017
Hi, I'm trying to get verification that I am an actual member of an LLC based in Delaware but the person who registered the LLC said there is no need to have proof and that he is not allowed to send scanned documents of an LLC. How am I able to confirm that I am a member of the LLC? It's very concerning that this person is stating he cannot send me scanned copy of the Operating Agreement. Shouldn't there be a way to allow digitally signed copies of this document? Any insights would be most appreciated. Thanks and regards, MarkHBS Staff replied: Monday, April 10, 2017
The ownership, operations and management of the LLC are governed by a written Operating Agreement among its owners that is not required to be publicly filed or disclosed to the Delaware Division of Corporations. Typically, the members do have a copy of the LLC Operating Agreement in their own personal files that shows their ownership in the LLC. For your unique situation, you may want to consult an attorney for advice.Donna R. Dusek said: Thursday, December 22, 2016
How do I go about getting copies of a company's Certificate of Formation?HBS Staff replied: Wednesday, December 28, 2016
If you formed your company with us, we would have a copy on file, which we can email to the email address associated with your account. If you did not form your company with us, we would be happy to assist with ordering a Certificate of Formation from the state of Delaware. You can email your request to our Filings Team at email@example.com or call us at 800-345-2677, Ext. 6910.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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