Certificate of Formation in Delaware | How to File in 2024

File Certificate of Formation in Delaware

Forming a Limited Liability Company (LLC) in Delaware is popular for entrepreneurs looking to start or grow their businesses. LLCs offer numerous benefits, including limited liability protection for their owners and flexible management structures. One of the critical steps in forming an LLC is filing the Certificate of Formation with the Delaware Secretary of State. This article will provide a comprehensive guide on How to File Certificate of Formation in Delaware.

Webinarcare Editorial Team will help you understand the necessary steps to file for Certificate of Formation. It would be best if all the factors in this article guided you.

What is Certificate of Formation?

Certificate of Formation is a legal document filed with the Delaware Secretary of State to establish a Limited Liability Company (LLC) officially. The Certificate of Formation contains essential information about the LLC, including its name, Registered Agent, and management structure. Once filed and approved by Delaware, the LLC becomes a legally recognized business entity, separate from its owners, and benefits from limited liability protection and pass-through taxation.

The Certificate of Formation typically contains the following information:

  • Company name
  • The effective date of the company
  • The headquarters of the company
  • The company’s goal
  • The period of the company’s operations
  • Copy of the name registration certificate for the company
  • Registered Agent’s and organizers’ names and addresses
  • At least one company employee

Recommended: Filing Certificate of Formation is easy and hassle-free if you hire a professional service. We recommend using –

LegalZoom ($0 + State Fee)

How to File Certificate of Formation in Delaware?

Aside from hiring a Registered Agent, you should also be aware that a Registered Agent should file Certificate of Formation in your Delaware LLC. Here are the steps and guidelines for filing.

Step 1: Choose a Name for Your LLC

The first step in registering an LLC Certificate of Formation is selecting a unique and appropriate name for your company. Your LLC’s name must comply with your state’s naming requirements, which typically include the following:

  • The name must be distinguishable from other registered business names in the state.
  • The name must include an LLC designator, such as “Limited Liability Company,” “LLC,” or “L.L.C.
  • The name must not include prohibited words or phrases defined by your state’s regulations.

To ensure your chosen name is available through your state’s business name database, Delaware Division of Corporations Entity Search, usually available on the Delaware Secretary of State’s website.

Step 2: Appoint a Registered Agent

Registered Agent is a person or entity responsible for receiving official correspondence and legal documents on behalf of your Delaware LLC. Most states require LLCs to designate a Registered Agent when filing the Certificate of Formation. The Registered Agent must have a physical address in the state and be available during regular business hours.

Choosing a reliable and responsible Registered Agent is essential, as failure to receive and respond to legal documents can seriously affect your business.

You can serve as your own Registered Agent, appoint a friend or family member, or hire a professional Delaware Registered Agent Services.

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Step 3: Prepare Your Certificate of Formation

The Certificate of Formation is the legal document that officially establishes your Delaware LLC. While the specific requirements in Delaware, the document includes the following information:

  • The LLC’s name
  • The name and address of the Registered Agent
  • The principal office address
  • The purpose of the LLC
  • The management structure (member-managed or manager-managed)
  • The names and addresses of the initial members or managers
  • The duration of the LLC, if not perpetual

In Delaware, additional information may be required, such as an organizer’s signature or specific provisions related to the LLC’s operation.

Consult the Delaware guidelines to ensure you include all necessary information.

Step 4: File the Certificate of Formation

Once your LLC Certificate of Formation is prepared, please submit it to the Delaware Secretary of State. The submission process may vary depending on the method of choice; Delaware allow online submissions and mailing or hand-delivering the documents.

Online Process

To use the online service or download the Certificate of Formation form for your LLC, go to the website of the Delaware Secretary of State. You were required to have an LLC name reserved while completing the form. Visit the Delaware Business Name Search to see if the business name you want to use is available there. You must include a copy of your name reservation and your completed Certificate of Formation form when submitting.

Mail Process

It is also possible to mail the form if you wish. Please adhere to the guidelines listed below.

  • The Certificate of Formation must be downloaded in the Delaware Secretary of State
  • Complete the necessary details in the form.
  • Two copies of the Certificate of Formation must be completed.
  • Include the two papers with the Delaware LLC name reservation certificate in a self-addressed, stamped envelope.
  • Submit all paperwork to Delaware Division of Corporations, 401 Federal Street, Suite 4 Dover, DE 19901.

Costs of Filing Certificate of Formation

Along with the filing of Certificate of Formation, you must pay a filing fee. In Delaware, the Certificate of Formation fee costs around $90 which you can pay in the Delaware Secretary of State. Confirm the correct fee amount and payment method for your state.

However, If you want to know more about the cost of forming an LLC, you can check out Delaware LLC Cost.

Step 5: Obtain an Employer Identification Number (EIN)

After your Certificate of Formation has been filed and approved, you should obtain an Employer Identification Number (EIN) from the Internal Revenue Service (IRS). The EIN is a unique identification number used for federal tax purposes. It is required for most LLCs, especially those with employees or elect to be taxed as an S-Corporation. You can apply for an EIN for free online through the IRS website.

The application of an EIN in Delaware can be through the following:

  • Apply Online- The online EIN application is the preferred method for customers to apply for and obtain an EIN.
  • Apply by Fax- Taxpayers can fax the completed Form SS-4 application to the appropriate fax number), after ensuring that the Form SS-4 contains all of the required information.
  • Apply by Mail- The EIN application Form SS-4 can be filed via mail. The processing time frame to receive the mail is four weeks.
  • Apply by Telephone-International Applicants – International applicants may call 267-941-1099 (not a toll-free number) from 6 a.m. to 11 p.m. (Eastern Time) Monday through Friday to obtain their EIN.

Recommended: Professional services have the EIN included in their LLC formation package. We recommend using –

LegalZoom($0 + State Fee for LLC formation)

Step 6: Create an Operating Agreement

Although most states do not require an LLC Operating Agreement when registering an LLC, having one is highly recommended. The Operating Agreement in Delaware is a legally binding document that outlines the LLC’s ownership structure, management, and operating procedures. It helps prevent member disputes and provides a clear framework for the LLC’s operations.

Step 7: Register for State and Local Taxes and Licenses

In Delaware, you may need to register for additional state and local taxes or obtain specific licenses and permits. Common registrations include sales tax, payroll tax, and unemployment insurance tax. As an LLC, your business income will be subject to pass-through taxation, meaning profits and losses will be reported on your tax return. However, you may still be responsible for other state taxes, such as sales tax, payroll tax, or franchise tax which you can pay in Delaware Division of Revenue.

In terms of franchise tax for your LLC in Delaware, there is $175 minimum. Consult your Delaware Division of Revenue and local government offices to determine which registrations and licenses apply to your LLC.

Step 8: Maintain Ongoing Compliance

Once your LLC is registered and operational, it’s essential to maintain ongoing compliance with state regulations. This typically includes filing Annual Reports in Delaware, paying required fees every 1 year, and keeping accurate records of your LLC’s activities. Stay informed about Delaware specific requirements to ensure your LLC remains in good standing.

Is the Certificate of Formation necessary to be filed in Delaware?

Yes, the Certificate of Formation is necessary to be filed with Delaware Secretary of State to legally establish and register a new business entity, such as a corporation or limited liability company (LLC). This document typically includes the company’s name, purpose, Registered Agent, and stock structure. Filing the Certificate of Formation is essential in forming a business and ensuring it operates legally and is recognized by Delaware.

What is the best way to file Certificate of Formation? Is it online or by mail?

The best way to file Certificate of Formation depends on your specific situation and the state in which you are incorporating your business. Both online and mail-in options have advantages, and either method can be effective.

Online Filing:

  • Faster processing time, as it is usually processed within a few days or even hours.
  • Immediate confirmation of submission and payment.
  • Lower risk of errors, as the online form may provide guidance and prevent incomplete submissions.

Mail-in Filing:

  • Some people prefer the traditional method and feel more comfortable with paper documentation.
  • You can include a cover letter or additional documentation if you have specific questions or complex situations.

To determine the best method for your needs, check the Delaware Secretary of State or similar department’s website for information on their preferred filing options and processing times. Online filing is more convenient and efficient, but both methods can be used effectively to submit your Certificate of Formation.

FAQs

What is an LLC Certificate of Formation?
An LLC Certificate of Formation is a legal document required to form a limited liability company.
Why should I file my LLC in Delaware?
Delaware is a popular state for LLC formation due to its established legal infrastructure, business-friendly laws, and tax benefits.
How do I file for an LLC in Delaware?
You can file for an LLC in Delaware by submitting a Certificate of Formation to the Delaware Division of Corporations.
What is the filing fee for a Delaware LLC?
The filing fee for a Delaware LLC is $90.
Are there any annual fees associated with a Delaware LLC?
Yes, there is an annual fee of $300 for Delaware LLCs.
What is a Delaware registered agent?
A Delaware registered agent is a designated individual or entity authorized to accept legal documents on behalf of a Delaware LLC.
Can I be my own registered agent in Delaware?
Yes, you can be your own registered agent for a Delaware LLC.
What if I don’t have a physical address in Delaware?
You can still form a Delaware LLC by hiring a commercial registered agent located in Delaware.
How long does it take to form a Delaware LLC?
It typically takes three business days to form a Delaware LLC.
Can I expedite the LLC formation process in Delaware?
Yes, you can expedite the LLC formation process in Delaware for an additional fee.
How long does a Delaware LLC last?
A Delaware LLC does not have an expiration date and can be continued indefinitely.
Do I need an operating agreement for my Delaware LLC?
While not required, it is highly recommended to have an operating agreement for a Delaware LLC.
Are there any state-specific requirements for a Delaware LLC operating agreement?
No, there are no state-specific requirements for a Delaware LLC operating agreement.
How many members can a Delaware LLC have?
A Delaware LLC can have one or more members.
What are the tax benefits of forming a Delaware LLC?
Delaware offers a favorable tax environment for LLCs, including no corporate income tax on profits earned outside of Delaware.
Do I need to file for foreign qualification in other states if I form an LLC in Delaware?
Yes, if you conduct business in other states, you may be required to file for foreign qualification in those states.
Can I change the name of my Delaware LLC after formation?
Yes, you can change the name of your Delaware LLC by filing an amendment to your Certificate of Formation.
Can I convert an existing business to a Delaware LLC?
Yes, you can convert an existing business to a Delaware LLC by filing a Certificate of Conversion with the Delaware Division of Corporations.
Can I change the ownership structure of my Delaware LLC?
Yes, you can change the ownership structure of your Delaware LLC by filing an amendment to your operating agreement.
What is a series LLC in Delaware?
A series LLC in Delaware is a type of LLC that allows for the creation of separate sub-series with different assets and liabilities.
Can I form a series LLC in Delaware as a foreign entity?
Yes, you can form a series LLC in Delaware as a foreign entity.
What are the restrictions on series LLC in Delaware?
Series LLCs in Delaware are required to maintain separate records and financial statements for each series, and may not consolidate liabilities among series.
What is the Franchise Tax for a Delaware LLC?
The Franchise Tax for a Delaware LLC is based on the number and type of shares authorized.
Are there any exemptions or discounts available for the Franchise Tax in Delaware?
Yes, some discounts and exemptions are available, such as the Alternative Entity Tax for LLCs with fewer than 10 members.
What happens if I don’t pay the Franchise Tax for my Delaware LLC?
Failure to pay the Franchise Tax may result in penalties, interest, and the revocation of your LLC’s certificate of formation.
Can my Delaware LLC do business with other countries?
Yes, as a Delaware LLC, you can freely conduct business with other countries.
Are there residency requirements to form a Delaware LLC?
There are no residency requirements to form a Delaware LLC as a foreign entity.
Can I apply for an EIN for my Delaware LLC without a Social Security Number?
As a foreign entity, you will need an Individual Taxpayer Identification Number (ITIN) to apply for an EIN.
Are there any additional requirements for non-US citizens to form a Delaware LLC?
Non-US citizens may need to provide additional documentation, such as an apostilled or notarized passport, to form a Delaware LLC.
Why do people choose to file their LLC Certificate of Formation in Delaware?
Delaware is known for having a business-friendly environment, with favorable tax laws and lenient regulatory requirements.
Can I file my LLC Certificate of Formation online?
Yes, Delaware allows for online filing through its Division of Corporations website.
How much does it cost to file an LLC Certificate of Formation in Delaware?
The base fee is $90, but there may be additional fees depending on the services you request.
How long does it take to process an LLC Certificate of Formation filing in Delaware?
Timeframes may vary, but standard processing time is generally 3-5 business days.
Do I need an attorney to file an LLC Certificate of Formation in Delaware?
No, it’s not required, but some people may choose to work with one for guidance on certain aspects of the filing.
How do I name my LLC in Delaware?
Your LLC name must include the phrase “Limited Liability Company” or an abbreviation. You cannot use certain restricted terminology and your name needs to be distinguishable from other registered entities in the state.
What are the requirements for forming an LLC in Delaware?
Please note that the following is not a full and comprehensive list, but the state generally requires the filing of Articles of Organization, a registered agent, and payment of the filing fee.
How do I choose a registered agent for my LLC in Delaware?
A registered agent can be an individual who is a resident of the state or a registered business entity authorized to do business in Delaware.
Are there any specific statutorily required provisions for an LLC operating agreement in Delaware?
No, Delaware grants the members of an LLC broad governance flexibility.
What is the franchise tax, and why do I need to pay it as an LLC in Delaware?
The franchise tax is an annual fee that every LLC must pay to the State of Delaware. The amount of the tax will depend on the size and structure of your business.
Do I have to be a Delaware resident to file an LLC Certificate of Formation in the state?
No, you don’t need to be a resident to register an LLC in Delaware.
Does my LLC need to have an employee identification number (EIN) in Delaware?
If your LLC has employees or is taxed as a corporation, then you’ll need an EIN from the IRS regardless of where your business is located.
Do I have to form or register my LLC outside of Delaware to do business in other states?
You’ll generally need to register as a foreign entity in any state where you conduct significant business activities.
How do I maintain my LLC in Delaware?
Maintenance varies based on the LLC’s specific needs, but it generally includes the filing of required reports and payment of taxes and fees.
Can I have a multistate LLC registered in Delaware?
Yes, you can have a Delaware LLC that does business in multiple states.
How do I find my existing LLC’s status in Delaware?
You can check the status of your LLC in Delaware online using their business entity search tool.
Can I change or update the name of my LLC once it’s been filed in Delaware?
Yes, you can file an amendment to change the name of your LLC in Delaware.
How do I dissolve my LLC in Delaware?
You’ll need to file a Certificate of Dissolution with the state of Delaware and any other state where the LLC is registered to do business.
Can I reinstate my dissolved LLC in Delaware?
Yes, you can reinstate your business within three years of its forfeiture by sending a written request to the Delaware Division of Corporations.
What is the difference between a domestic and foreign LLC in Delaware?
A domestic LLC is organized and exists under Delaware state law, while a foreign LLC is registered outside and elects to do business in the state.
How do I change the structure of my LLC in Delaware?
You would file with Delaware a Certificate of Amendment to effect a change to your LLC’s formation.
Do I have to file annual reports for my Delaware LLC?
Yes, Delaware LLCs are required to file annual reports and pay associated franchise taxes.
What is a single-member LLC, and can I form one in Delaware?
A single-member LLC is a limited liability company with one owner. Yes, you can form a single-member LLC in Delaware.
Do I need to have an operating agreement for my LLC in Delaware?
Although not mandatory, drafting a Delaware LLC Operating Agreement can help define structure and member’s contributions to the company.
What business licenses and permits does a Delaware LLC need?
It varies based on your specific state of operation and industry, but any business must obtain local permits and licenses.
Can I use an out-of-state registered agent for my Delaware LLC?
Yes, but your agent must have a physical Delaware address and be authorized to do business in the state.

Also Read

Can You Change or Modify Your Delaware LLC Certificate of Formation?

One of the most common reasons for wanting to modify a Delaware LLC Certificate of Formation is a change in the business’s name. When a LLC decides to rebrand or pivot its business focus, it’s important to reflect that change accurately in official documents. Fortunately, the process of changing your LLC’s name in Delaware is relatively straightforward. You will need to prepare and file a Certificate of Amendment with the Delaware Secretary of State, which outlines the old name of the LLC, the desired new name, and any other changes that need to be made. Once the Certificate of Amendment is approved and filed, your LLC will be legally recognized under its new name.

Another potential modification to a Delaware LLC Certificate of Formation is updating the business address. If your LLC’s primary office location changes, it is important to update this information with the state. In Delaware, you can file a Certificate of Amendment to reflect the new address of your LLC. This ensures that all official correspondence from the state is sent to the correct location and that your LLC remains in compliance with state regulations.

In addition to changing the name and address of a Delaware LLC, you may also need to modify other important information, such as the registered agent. The registered agent is responsible for receiving legal and official documents on behalf of the LLC. If your registered agent has changed or you are switching to a professional service, you will need to file a Certificate of Amendment to update this information with the Delaware Secretary of State.

It is important for all Delaware LLC owners to be aware of the options available for modifying their Certificate of Formation when necessary. With the proper documentation and filing process, you can ensure that your LLC remains in good standing with the state and is up to date with any changes that have occurred within the business.

Overall, the ability to change or modify a Delaware LLC Certificate of Formation is an important aspect of maintaining compliance and keeping your business information up to date. By understanding the process and requirements for making these modifications, LLC owners can ensure that their business remains in good standing with the state and is in compliance with all applicable regulations.

Conclusion

Registering an LLC Certificate of Formation is critical in establishing your business as a legally recognized entity. By following this comprehensive guide and researching your state’s specific requirements, you can successfully navigate the registration process and set your LLC up for success. Remember that forming an LLC is just the beginning; ongoing compliance and diligent management are necessary to ensure your business thrives in the long run.

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