STEP 1 - Check on Name Availability:
Once you have decided to form a limited liability company or LLC, you need to choose a name. Almost any name will work so long as it is already being used or is deceptively similar to a name being used by another entity that is filed with the State Filing Office which is usually the Secretary of State's Office.
The name must end with the words Limited Liability Company or an abbreviation such as LLC or L.L.C. For example, you could have Smith Plumbing, Limited Liability Company or Smith Plumbing, LLC. The ending such as LLC or Inc is not considered part of the name when searching for availability.
STEP 2 - File Articles of Organization with State:
The first official step in forming an LLC is to file Articles of Organization (sometimes called a Certificate of Organization) with the State Filing Office which is usually the Secretary of State and pay the required filing fee. The form can usually be obtained online form the State Filing Office.
Caution: A lot of people think this all that has to be done. However, that can be a costly mistake. To fully complete the organization of your LLC, you need to follow the rest of the steps outlined below. If you don't, then the limited liability protection provided by the LLC may be at risk.
Another Important Caution: All legal entities like an LLC are required to name a registered agent and list a registered address in the Articles of Organization. A registered agent is simply a person or incorporated company who can accept service of legal papers if your company is sued or the person who can receive mail from the State Filing Office. You can act as the registered agent for your LLC if you want but there are some situations when this is not advisable. You can read more about this by checking the links below.
STEP 3 - Prepare and Sign or Adopt an Operating Agreement:
Once the initial form is filed with the State Filing Office, the organizers of the LLC should prepare and sign or adopt an Operating Agreement. Although not required by state law, the Operating Agreement is an essential document which sets forth the rights, duties and obligations of the members of the LLC, including who will manage the LLC and such other things as the division of profits and the distribution of income.
In addition to acting as an agreement between the parties involved in the LLC, the Operating Agreement also strengthens your limited liability protection in the sense that it shows you have completed the organization of the LLC and are in compliance with the process. It helps demonstrate that your LLC is being operated as a separate legal entity. This is true even though you may only have a one member LLC.
Operating Agreements are not provided by the State Filing Office. This is something you have to do. You may find some samples online but you need to be careful with boilerplate agreements. You can find a form by checking the links below.
STEP 4 - Conduct Organizational Meeting and Prepare Minutes:
The shareholders and directors in a corporation traditionally hold meetings and prepare minutes of meetings. These are often referred to as the corporate formalities. One of the benefits of an LLC is that there is no legal requirement for the LLC to hold meetings and prepare minutes of the meeting. However, it is still a wise business practice to document important business decisions.
LLC's are not required by law to hold meetings but it is still a wise practice to have form of organizational meeting soon after the initial Articles of Organization are filed. Typical minutes of an Organizational Meeting would include such items as the approval and ratification of the Articles of Organization and the Operating Agreement, a statement concerning who is managing the LLC and each Member's percentage of ownership in the LLC. You can learn more about what types of items should be included in minutes by checking the links below.
STEP 5 - Prepare Written Documentation of Ownership Interests in the LLC:
A corporation is owned by the shareholders who each own a certain number of shares in the company. The terminology most commonly used to describe owners in an LLC is a Member and their ownership interest is referred to as a Membership Interest. A Membership Interest may consist of any number of units of the LLC. However, the most important concept is that Membership Interests are usually described as a percentage of the whole (which is 100%) or as a sharing ratio of the whole.
The most simple way to describe Membership Interests in an LLC is the sharing ratio. For example, if a certain member of the LLC owns of the LLC then the sharing ratio would be 50/100. If he/she owns then the sharing ratio would be 25/100. Sometimes Membership Interests are stated as a number of units similar to shares of stock.
It is important to document or put in writing a member's ownership interest in an LLC for several reasons. First, membership interests provide certain legal rights such as voting rights and may be important for making distributions of income. Obviously, if you have a one person LLC, this issue becomes less important.
With respect to liability issues, if you have not documented ownership of the LLC, then a question is raised as to whether you are really operating as a separate legal entity. In other words, a legal entity like a corporation or LLC cannot exist and function without owners. A second reason is to avoid disputes between owners and possible breakups due to disagreements over income, management rights, etc.
Failure to document what each person owns or what each of them started with as far as an ownership interest is concerned, is a frequent casue of disputes in smaller companies if one of the parties decides to leave or sell his/her interest. Memories tend to dim and people often have a different perspective as to what they have put in or contributed to the business.
STEP 6 - Get a New Employer ID# (EIN) from the IRS:
Since the LLC is a separate legal entity it requires a new or different federal tax identification number (EIN) from the Internal Revenue Service (IRS). This is true because the entity is considered separate and apart under the law from the individual owners. The exception to this with LLC's is when you have a one person LLC. When an LLC is owned and operated by just one person, that person has the option of reporting taxes on his/her own social security number or obtaining a new EIN #. If a new EIN# is required then you need to file form SS-4 with the IRS. You can do this online by clicking the links below.
STEP 7 - Establish A Separate Bank Account for the LLC:
This is important. A lot of people find it easier to just continue using the same bank account they used before for the business when they were a sole proprietor or partner. Again, the principle behind liability protection is that the LLC is a legal entity, separate and apart from the individual owners. A separate legal entity requires a separate bank account.
If your business is ever sued, one of the important issues a court looks at in deciding questions of liability is whether the LLC owners have co-mingled their personal and business funds and assets. In other words, do the owners pay for personal expenses out of the LLC bank account or visa versa. Obviously, if you are using the same bank account for your LLC and personal needs, then you will be co-mingling the funds.
You should use of a separate bank account to pay LLC bills and pay personal bills from a personal bank. This helps prove or establish the existence and operation of your LLC as a separate legal entity.
FINAL COMMENTS:
If you organize and operate your LLC properly, you are entitled to limited liability protection, which provides a shield between business debts or obligations and your personal assets. This is because the LLC is a legal entity separate and apart from its owners. If a legal action is brought against you, you need to be able to prove or demonstrate that you have operated the LLC as a separate legal entity. Since each case is decided on the individual facts unique to that case, there is no way to guarantee that a person will have the liability protection of an LLC. However, if you follow the steps outlined above, you put yourself in a much stronger position to insure the liability protection you want and deserve from your LLC.
Article Source: http://www.artsymmetry.com
Get help organizing an LLC, check out this invaluable resource from attorney Robert Montgomery called "7 Essential Steps" help for organizing llc >, and and >why use LLC
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