A Delaware LLC operating agreement is an essential document for laying out the rights, duties, and roles of members of the organization and dictating how the company will run its operations.
In Delaware, operating agreements can be written, oral, or implied. That means you don’t have to create a paper copy of your operating agreement for it to be considered legal, although it is highly recommended to have it in writing.
Is an LLC Operating Agreement Required in Delaware?
YES, an LLC operating agreement is required in Delaware.
Suppose you’re looking into how to get an LLC in Delaware. In that case, you might want to check out the state’s current operating agreement laws outlined in Title 6, Subtitle II, Chapter 18 (Limited Liability Company Act:
- § 18-111: Interpretation and enforcement of limited liability company agreement.
- § 18-201: Certificate of formation.
- § 18-306: Remedies for breach of limited liability company agreement by a member.
- § 18-405: Remedies for breach of limited liability company agreement by manager.
- § 18-1101: Construction and application of chapter and limited liability company agreement.
Costs and Fees
In Delaware, starting a limited liability company includes:
- Certificate of formation fee – $90 ($100 for same-day service or $50 for 24-hour service).
- Certified copy of registration fee – $50.
- Name reservation fee -$75.
Delaware also charges a $50 fee for a state business license and a $300 annual business entity or franchise tax.
How to Form an LLC in Delaware
Step 1 – Choose a Business Name
The first step for anyone wanting to start a limited liability company in Delaware is to choose a business name. You’ll need to ensure that your LLC’s name hasn’t already been claimed. And the business name can’t be too similar to an existing business.
You can pay a small fee if you want to register your business name beforehand. You can reserve your LLC name for 120 days while you get your paperwork in order.
Step 2 – Choose a Registered Agent
A registered agent is a person who handles legal and government papers on behalf of the Delaware LLC. Your registered agent can either be an individual with Delaware residency or a business that operates out of state. Either way, your agent needs a physical street address in Delaware.
Step 3 – File Your Certificate of Organization
The next step of the process is to file your certificate of formation of a limited liability company. You’ll mail your paperwork to the Delaware Division of Corporations.
Ensure that your certificate includes the LLC’s and registered agent’s names and addresses. It should also contain the signature of the LLC’s organizer.
Step 4 – Write Your Operating Agreement
After you’ve paid your filing fees and submitted all your paperwork, it’s time to write up your operating agreement. This step is essential for staying compliant and protecting yourself and your company.
Once you’ve written the agreement, you can submit it to the state government to prove the credibility of your business entity.
Step 5 – Get an EIN
The last step of opening a limited liability company in Delaware is registering for an Employer Identification Number (EIN). The IRS provides this number and is used to track business taxes and transactions.
It’s entirely free for you to register your business for an EIN. Doing so will enable you to hire employees, open a bank account, get loans, and open credit card accounts.
Download our Delaware LLC operating agreement template below.