The Delaware Series LLC

Under Delaware law, a limited liability company (LLC) may be composed of an individual series of membership interests. This type of entity is referred to as the Delaware series LLC. Each series is effectively treated as a separate entity, meaning the debts, liabilities, obligations and expenses of one series cannot be enforced against another series of the LLC or against the LLC as a whole.

Few types of business entities have attracted as much interest from people as the Delaware series LLC.Today, less than half of the U.S. states allow you to form a Series LLC, with Delaware being the first to popularize the entity.

The first series LLC was devised by some of Delaware's top lawyers and was formally introduced in the state of Delaware in 1996. The purpose of the Delaware series LLC is to form a unique entity that consists of separate, individual interests. Under Delaware law, each series can hold its own assets, have its own members, conduct its own operations and pursue different business objectives, yet remain insulated from claims of members, creditors or litigants pursuing the assets of, or asserting claims against, another series.

When it comes to this type of business entity, it's not a matter of series LLC vs LLC, but rather a question of whether or not your LLC would benefit from siloed units within the business. The Delaware series LLC is a collection of individual series—this notion has been likened to a honeycomb. It can be illustrated as follows:

Since a Delaware series LLC is treated as a single entity, it only has to pay one annual Franchise Tax of $300 to the state of Delaware, instead of paying $300 for each individual Delaware LLC.

It serves many purposes, but it is typically utilized by real estate investors who own several properties and companies that own multiple brands.

Do Series LLCs Need a Registered Agent?

Yes. Just like any other LLC, your Delware Series Limited Liability Company will also need a Registered Agent. However, a common misconception is that each series will need to have its own Registered Agent. A single Registered Agent can represent the entire company. Harvard Business Services, Inc. can act as the Delaware Registered Agent for your series LLC.

How to Form a Series LLC in Delaware?

The process of forming a series LLC is quite similar to forming a regular LLC. You just need to provide the name of the company, basic contact information and we will prepare and file the Certificate of Formation with the State of Delaware.

Once the initial steps are complete, your series LLC will need to draft an LLC Operating Agreement and obtain an EIN.

While a Series LLC is a flexible entity that offers several benefits, there are some drawbacks associated with it.

Pros:

• Low start-up cost: Only one LLC needs to be formed with the state of Delaware. The series within the LLC are then formed internally via the series LLC's Operating Agreement.
• One Franchise Tax payment: No matter how many series are in your series LLC, the single entity owes just one annual Franchise Tax payment of $300 to the state of Delaware. If you were to form individual LLCs instead, you would need to pay a Franchise Tax of $300 for each LLC. 
• One Registered Agent Fee: The state of Delaware requires that all Delaware companies maintain a Delaware Registered Agent. (Please visit our Registered Agent page for more information.) Since the series LLC is one entity, only one annual Registered Agent Fee is due. If you were to form multiple LLCs, you would need to pay a Registered Agent Fee for each LLC.
• Legal separation: Each series is typically supposed to be treated as a separate entity with its own assets, members and operations. The debts, liabilities and obligations of one typically cannot be enforced against another series, or the series LLC as a whole. Therefore, if one series is involved in a legal dispute, the others can typically keep operating.

Cons:

• It's legally untested: A Series LLC's unique structure has not been tested in court. Even if each series maintained separate records, assets and liabilities, a court in another jurisdiction could decide to ignore the legal separation granted by Delaware law.
• Uncertain taxes in other jurisdictions: Some states charge annual fees for each series within the LLC when the series LLC operates as a foreign LLC in their jurisdiction. California, for example, charges $800 per series for foreign series LLCs.
• Difficulty obtaining separate EINs: Since each series is separate from the others, series LLC owners typically want to obtain a Federal Tax ID Number (also known as an EIN) for each series. However, clients have reported difficulty in doing so.
• Banks can't comprehend it: Many banks are unfamiliar with the series LLC and therefore often have difficulty understanding that each series can open its own bank account.
• Attorneys and accountants are unfamiliar with it: Many attorneys and accountants are also unfamiliar with the Series LLC and cannot offer adequate counsel.
• Many states do not recognize the series LLC: Many states don't recognize a series LLC and treat it as an individual LLC.
• The IRS has not determined how it should be taxed: The United States federal tax treatment afforded to individual series is uncertain. Essentially, the IRS does not know how to tax each individual series LLC, often making it difficult to file yearly income taxes.

[Please note: As of August 2019, Delaware has amended its Series LLC law. All information in this article pertains to what is now known as a Protected Series LLC, as opposed to the newly introduced Registered Series LLC.]

We are a document filing specialist and business formation company. We are neither attorneys nor accountants, and this information should not be considered legal or accounting advice.

If you have more questions about the Delaware series LLC, please contact us via live chat, Skype (DelawareInc), telephone (800-345-7400) or email.

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Recorded in December, 2020