A West Virginia LLC operating agreement is a legal document that outlines a company’s daily activities, operations, and membership.
Company members decide on the terms of an LLC operating agreement together and dictate them in written format. Once everyone agrees on all the terms, they can sign the document to enact it. Rather than filing it with a government body, LLC members keep copies to refer to later.
Is an LLC Operating Agreement Required in West Virginia?
No, you’re not legally required to have an LLC operating agreement in West Virginia. However, not having this document means your LLC is governed by the state’s LLC statutes.
Chapter 31B of the West Virginia Code contains the Uniform Limited Liability Company Act. LLC owners can refer to this document for guidance on forming and maintaining their businesses. It also contains general laws relating to the governance of LLCs in the state.
If you want more freedom over how your LLC conducts itself, you can consider making your own LLC operating agreement. §31B-1-103 has a statute that covers the effect of operating agreements and their nonwaivable provisions. Some specific points to know include:
- The operating agreement cannot get rid of the duty of loyalty under section 6-603(b)(3) or section 4-409(b). However, the operating agreement can identify certain categories and types of activities that don’t violate the duty of loyalty.
- The operating agreement can specify how many disinterested managers or members can ratify a certain act that would violate the duty of loyalty otherwise.
- The operating agreement cannot decrease the duty of care under section 4-409(c) unreasonably.
- The operating agreement can set the standards for the performance of the obligation of good faith and fair dealing.
- The operating agreement may not restrict the rights of anyone aside from a transferee of a member’s distributional interest, member, or manager under this chapter.
Costs and Fees
Some costs and fees you can incur when forming an LLC in West Virginia include:
- Domestic filing fee: $100
- Foreign filing fee: $150
- Name reservation fee: $15
- Annual report fee: $25
How to Form an LLC in West Virginia
To form an LLC in West Virginia, follow these steps:
Step 1 – Choose a Company Name
You first have to name your LLC. If you have a few ideas, you can look them up in the Secretary of State’s business name database. This way, you can confirm if your desired names are available. If your chosen names are taken (or if they sound too similar to existing company names), you can brainstorm other ideas.
When choosing your name, ensure you incorporate “Limited Liability Company” or an abbreviation, such as “L.C.,” after your name. The Secretary of State requires all LLCs to distinguish themselves with this kind of identifier.
If you’ve selected a name but aren’t ready to proceed with the subsequent steps, you can reserve your preferred name for up to 120 days.
Step 2 – Seek a Registered Agent
Seek a registered agent who will accept legal notices and documents on your LLC’s behalf. They must have a physical address in West Virginia so they can receive all correspondence efficiently and reliably.
You can choose any individual to be your registered agent if they live in West Virginia. They can be a member of your LLC or someone unrelated to it. You can also appoint another entity as your registered agent if the company has legal authorization to conduct business in the state.
Step 3 – File Your Articles of Organization
You can file your articles of organization with the Secretary of State online or via the paper form. If you fill out the paper form, you can mail it to the Secretary of State’s office or deliver it in person.
If you’re an entrepreneur under 30 or a veteran, the state may waive your filing fee for your articles of organization.
Step 4 – Write an Operating Agreement
An operating agreement isn’t essential to forming an LLC, but you can still consider writing one. It lets you clearly define the company’s purpose, describe the allocation of losses and profits, and explain procedures for company meetings.
Step 5 – Register for an EIN
You can register for an Employer Identification Number (EIN) for free on the IRS’s website. An EIN will identify your business for tax purposes. You can think of it as your business’s Social Security number. Your business must have an EIN to hire employees, file state and federal taxes, and start a business bank account.
Step 6 – File Your Annual Reports
You must also file an annual report with the Secretary of State and pay the $25 fee. You must do so between January 1st and July 1st each year after you form the business. You can file this report online.
Ensure you submit it on time. Otherwise, you may incur a $50 late fee.