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A Delaware LLC can be very flexible when it comes to preserving ownership in the family business you've worked so hard to create.
In fact, an LLC has the potential to preserve ownership for future decades. In an LLC, the members are free to organize the LLC in whatever manner they choose.
Members possess near-total freedom to define the relationship among the members and the terms governing the operation of the entity. The fundamental terms of an LLC’s ownership, operation and management are set forth in its LLC Operating Agreement.
The LLC Operating Agreement not only governs terms such as sharing of income and liabilities, it also sets forth the terms governing the liquidation of the entity and the replacement of LLC members.
An LLC does not have a fixed life term, thus it 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 excellent option for preserving ownership in a family business.
The LLC Operating Agreement allows control over the LLC and its assets, allowing both to be passed along to surviving family members.
Here's how you might choose to set it up:
It is important to remember that an LLC Operating Agreement is not filed or otherwise disclosed to the state of Delaware or the Delaware Division of Corporations, nor is it part of any public record.
Thus, you can maintain the confidentiality of family affairs in perpetuity if you'd like.
This is just one way to structure a Delaware LLC in order to pass a family business from one generation to another.
Please remember to consult with your estate tax advisor when you set up an LLC for succession planning.
If you'd like to form an LLC or you have questions about an LLC Operating Agreement, please feel free to contact us by phone at 800-345-2677 or by email.
*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 3 comments left for How a Family Business Can Set Up Its LLC Operating AgreementRob Ross said: Sunday, January 15, 2017
With respect to forming a Delaware LLC, what must be done to set up the structure between members as a joint tenancy so as to avoid the issues of probate if one of the member passes away?HBS Staff replied: Tuesday, January 17, 2017
Traditionally, this is handled within the LLC Operating Agreement. LLCs are generally filed in Delaware without listing the names of the members with the state. This means changes in ownership can generally just be handled internally. The operations and management of the LLC are governed by a written agreement among its owners that is not required to be publicly filed or disclosed to the Delaware Division of Corporations.
As a result, an LLC allows secure anonymity and the ability to create a customized management structure, which prescribes the economic relationship among owners. The Operating Agreement can be written in any language and is not required to be translated into English.
The Delaware LLC statute allows parties to define their business relationship in a written agreement as they so desire. This is called "freedom of contract." Delaware law provides rules only for those matters on which the parties have failed to agree. The stated policy of the Delaware LLC law is to give maximum effect to the principle of "freedom of contract" and to the enforceability of LLC agreements. The contractual flexibility offered by the Delaware Act is unmatched by any other LLC statute.
To read more about LLC Operating Agreements, visit https://www.delawareinc.com/blog/101-on-an-llc-agreement/
Here is a helpful article on changing an LLC Operating Agreement https://www.delawareinc.com/blog/change-of-ownership/
Feel free to call us with any questions. We are happy to help. 1-800-345-2677.Rose Diaz said: Monday, March 14, 2016
In regard to passing an LLC on to offspring Class B, would they Class B acquire debt if the business is in the hole when the primary Class A member passes away? Just Curious.HBS Staff replied: Tuesday, March 15, 2016
This is a tough question and the answer would very much depend on the particular situation. The solution might be spelled out in the LLC's Operating Agreement, and if it weren't, the Class B members would likely consult an attorney. If you have further questions, please feel fee to call our expert customer support representatives at 1-800-345-2677.Rose Diaz said: Monday, March 14, 2016
In regard to passing an LLC on to offspring Class B, would they Class B acquire debt if the business is in the hole when the primary Class A member passes away? Just Curious.