Starting an LLC in Delaware 2024: The Essential Startup Guide

If you’re an entrepreneur looking to start a business in Delaware, choosing the right business entity is one of the most important decisions you must make. Starting an LLC in Delaware (Limited Liability Company) is popular for business owners due to its flexibility, tax benefits, and limited liability protection. This comprehensive guide will walk you through the steps to form an LLC in Delaware and provide helpful tips to make the process as smooth as possible.

Embarking on a new business venture in Delaware, also known as The First State, requires careful consideration of various factors, with the selection of the best Delaware LLC formation services being a crucial decision. At LLCBase, we aim to simplify starting an LLC in Delaware by outlining the essential steps and providing valuable insights to ensure a seamless experience for aspiring business owners.

What is an LLC

Delaware LLC is a hybrid business structure that has gained popularity among entrepreneurs due to its unique blend of benefits from corporations and partnerships. It offers the best of both worlds by providing limited liability protection to its owners, known as members, while allowing for flexible tax treatment and simpler management structures.

• Limited Liability Protection: One of the primary advantages of Delaware LLC is that it shields its members from personal liability for the company’s debts, obligations, and liabilities. Suppose the company faces a lawsuit or incurs debt. In that case, the member’s personal assets, such as their homes, vehicles, and bank accounts, are generally protected and cannot be seized to satisfy their obligations. This protection is similar to a corporation, where shareholders are not held personally responsible for the company’s liabilities.
• Pass-Through Taxation: Delaware LLC enjoys pass-through taxation, unlike a traditional corporation, which is subject to double taxation (taxes are levied on the corporation’s profits and the shareholders’ dividends). This means that the profits and losses of the LLC are reported on the member’s individual tax returns, and taxes are paid at their personal income tax rates. This eliminates the need for the LLC to pay corporate income tax and helps members avoid double taxation.
• Flexible Management Structure: Delaware LLC provides flexibility in its management structure compared to a corporation. While corporations require a board of directors and officers to make decisions and manage the company, LLCs can be managed by the members or appointed managers. This flexibility allows the members to tailor the management structure to best suit the needs of the company and its operations.
• Simplified Recordkeeping and Formalities: Delaware LLCs are not subject to the same stringent recordkeeping and formalities as corporations. For example, LLCs are not required to hold annual meetings or maintain extensive records, such as meeting minutes and bylaws. This streamlined approach can save time and resources and simplify managing the business.

Delaware LLC is a versatile and advantageous business structure that offers limited liability protection, pass-through taxation, flexibility in management, and simplified recordkeeping. These benefits make it an attractive option for entrepreneurs starting and growing their LLCs in Delaware.

To support you, we have compiled a list of the best LLC formation services in Delaware who can help you with business formation and handle other business requirements!

7 Steps to Form an LLC in Delaware

Forming an LLC in Delaware involves several steps. Follow them closely to ensure your Delaware LLC is set up correctly and legally.

Step 1: Choose a Name for Your Delaware LLC

Choosing the right name for your Delaware LLC is crucial, representing your brand and setting the tone for your company. To ensure your chosen name is legally compliant and available for use, follow these Delaware LLC naming guidelines:

• Include Required Designators: As mentioned, your Delaware LLC’s name must contain the words “Limited Liability Company” or the abbreviations “LLC” or “L.L.C.” This requirement ensures that the public can quickly identify your business as a Limited Liability Company.
• Avoid Prohibited Words and Phrases: Certain words and phrases are restricted or prohibited in Delaware LLC’s name. These include terms like “bank,” “trust,” “insurance,” and any words that imply the company is affiliated with a government agency or performing services that require special licensing or approval. When choosing your business name, consult the Delaware Secretary of State’s restricted words and phrases guidelines.
• Ensure Uniqueness: Your chosen LLC name must be distinguishable from other registered businesses in Delaware. This means it cannot be too similar to an existing business’s name, as it may cause confusion. Use the Delaware Secretary of State’s business name search tool to check if your desired name is available. Remember that even if a name appears available, the Delaware Secretary of State has the final say on its acceptability.
• Consider Domain Availability: In today’s digital age, having a strong online presence is essential for most businesses. Before finalizing your Delaware LLC’s name, check if the corresponding domain name is available for purchase. This will help ensure a cohesive brand identity and make it easier for customers to find your business online.
• Trademark Search: To avoid potential legal issues, a trademark search is a good idea to ensure your chosen business name doesn’t infringe on any existing trademarks. You can search the United States Patent and Trademark Office’s (USPTO) database to see if any registered trademarks conflict with your desired name.

Once you have chosen a unique and compliant name for your Delaware LLC, you can proceed with the registration process. It’s important to note that reserving a name with the Delaware Secretary of State is not required to form an LLC. Still, it’s an option to secure the name before filing the Certificate of Formation in Delaware. To reserve a name, you can submit a Name Reservation Request along with a fee of $75 by mail or Not available online. The name reservation will be valid for 60 days, giving you ample time to prepare and file your LLC’s formation documents.

Step 2: Appoint Registered Agent

Appointing Registered Agent is crucial in forming your Delaware LLC, as they are the primary point of contact between your business and the state. The Registered Agent’s role is to ensure that your LLC complies with state regulations by receiving and forwarding important legal documents, such as lawsuits, government notices, and tax notifications. When selecting Registered Agent, consider the following:

• Eligibility: Registered Agent must be either an individual who is Delaware resident or a business entity registered with the Delaware Secretary of State to provide Registered Agent services. The agent must have a physical address within the state (a P.O. box is insufficient) and be available during regular business hours to receive important documents.
• Self-Appointment: As the business owner or one of the LLC members, you can act as your Delaware LLC’s Registered Agent. This option can save you money on professional Registered Agent fees. However, remember that being your Registered Agent means you must be available during regular business hours at the designated address, and you must ensure that you stay up-to-date with any legal notices and deadlines.
• Appointing a Friend or Family Member: Another option is to appoint a friend or family member as your Delaware LLC’s Registered Agent. This person must also be Delaware resident with a physical address in the state and be available during regular business hours. Before selecting a friend or family member as your Registered Agent, be sure they understand the responsibilities and can reliably fulfill their duties.
• Professional Registered Agent Services: Many business owners use a professional Registered Agent service in Delaware for their LLC. These services provide a physical address, accept and forward important documents on your behalf, and ensure compliance with state regulations. Using a professional service can offer peace of mind and save time, as they will expertly manage and track deadlines and requirements for your LLC.

Once you have appointed Registered Agent for your Delaware LLC, their information, including their name and address, must be included in your Certificate of Formation when you file with the Delaware Secretary of State. It’s essential to regularly update your Registered Agent’s information with the state if there are any changes to ensure your business complies with Delaware law.

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Step 3: File the Certificate of Formation

Filing the Certificate of Formation is critical in forming your Delaware LLC, as it officially registers your business with the state. To ensure a smooth filing process, be prepared to provide the following information:

• LLC Name
• Registered Agent Information
• Management Structure
• Purpose of the Business
• Organizer Information
• Signature

Once you have gathered the necessary information, you can file the Delaware Certificate of Formation with the Delaware Secretary of State using one of the following methods:

• Online: The Delaware Secretary of State offers an online filing portal known as Bizfile, which allows for a quicker and more convenient filing experience.
• By Mail: You can mail the completed Certificate of Formation and a check or money order for the Delaware Division of Revenue filing fee to the Delaware Secretary of State’s office.
• In Person: If you prefer to file in person, you can submit the Certificate of Formation and the filing fee at the Delaware Secretary of State office. Note that expedited processing services are available for an additional fee.

Processing times for your LLC formation may vary depending on the submission method and the current workload of the Delaware Secretary of State’s office. Once your Certificate of Formation has been approved, you will receive a stamped copy confirming the formation of your Delaware LLC.

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Step 4: Create an Operating Agreement

Although not required by Delaware law, it is highly recommended for LLCs to have an operating agreement in place. This document outlines the ownership structure, member roles, and business operating rules. Delaware LLC operating agreement can help prevent future member disputes and guide how the business should be run.

Here are some key components to consider when drafting your Operating Agreement:

• Ownership Structure: Clearly define the ownership interests of each member in the LLC, including their percentage of ownership and capital contributions.
• Management Structure: Specify whether your LLC will be member-managed or manager-managed.
• Voting Rights and Decision-Making: Establish the voting rights of each member based on their ownership interest and set procedures for making business decisions.
• Profit and Loss Allocation: Detail how profits and losses will be allocated among the members.
• Distributions: Establish the process and frequency for distributing profits to the LLC’s members.
• Membership Changes: Outline the procedures for adding or removing members, transferring ownership interests, and handling the death or incapacity of a member.
• Dissolution: Specify the circumstances under which the LLC may be dissolved, as well as the process for winding down the business, selling assets, and distributing the remaining funds to the members.
• Amendment Process: Establish a process for making changes to the Operating Agreement, including the required notice and voting requirements for amendments.

While creating an Operating Agreement may seem daunting, numerous resources are available to help you draft a comprehensive document tailored to your Delaware LLC’s specific needs. Professional services can provide guidance and templates to ensure your Operating Agreement covers all essential aspects of your business. Once completed, all members must review, agree upon, and sign the Operating Agreement and keep a copy on file for future reference.

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Step 5: Obtain an EIN

An Employer Identification Number (EIN) is a unique nine-digit number the Internal Revenue Service (IRS) assigns to businesses in the United States. It is used to identify your Delaware LLC for tax and reporting purposes, open a bank account, hire employees, and apply for specific licenses and permits. Here is a step-by-step guide on how to obtain an EIN for your Delaware LLC:

1. Determine Eligibility: Your Delaware LLC must be in the United States or its territories to apply for an EIN. Moreover, the person applying for the EIN (known as the responsible party) must have a valid Social Security Number (SSN), Individual Taxpayer Identification Number (ITIN), or Employer Identification Number (EIN).
2. Apply Online: The easiest and fastest method to obtain an EIN for your Delaware LLC is through the IRS’s online application process. Follow the step-by-step instructions provided by the EIN Assistant and submit your application. Once completed, you will receive your EIN immediately.
3. Apply by Mail: If you prefer to apply for an EIN by mail, download and complete Form SS-4, “Application for Employer Identification Number.” Be sure to provide accurate and complete information about your Delaware LLC, including its legal name, address, and responsible party. Once completed, mail the form to the address indicated in the form’s instructions. It typically takes five weeks to receive your EIN by mail.
4. Apply by Fax: You can also obtain an EIN for your Delaware LLC by faxing a completed Form SS-4 to the IRS at (855) 641-6935. If you provide a return fax number, you should receive your EIN within four business days.
5. Apply by Phone (International Applicants Only): If your Delaware LLC’s responsible party does not have an SSN, ITIN, or EIN and is located outside the United States or its territories, you can apply for an EIN by calling the IRS at (267) 941-1099.

Once you have obtained an EIN for your Delaware LLC, keep the number secure and readily available for tax filings, business transactions, and other necessary documentation. Remember that your EIN is specific to your LLC, and you will need to obtain a new EIN if you form additional business entities or make significant changes to your LLC’s structure.

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Step 6: Register for State Taxes and Permits

Registering for applicable state taxes and obtaining necessary permits or licenses is crucial to ensure your Delaware LLC remains compliant with state and local regulations. The requirements will vary depending on your business’s nature, location, and industry. Here are some common taxes and permits/licenses that your Delaware LLC may need to register for or obtain:

• Sales and Use Tax: If your Delaware LLC sells tangible goods or provides taxable services, you may need to register for a sales tax permit with the Delaware Delaware Division of Revenue. This permit allows your LLC to collect customer sales tax and remit it to the state.
• Employment Taxes: If your Delaware LLC plans to hire employees, you must register with the Delaware Delaware Department of Labor for employment taxes.
• Franchise Tax: All Delaware LLCs are subject to an annual minimum franchise tax of $175 minimum, payable to the Delaware Division of Revenue. This tax is due even if your LLC did not conduct business or generate income during the tax year.
• State Business Licenses and Permits: Depending on your Delaware LLC’s industry, you may need to obtain specific business licenses or permits in Delaware. Examples include licenses for professional services (e.g., contractors, accountants, or real estate agents), health and safety permits, and environmental permits.
• Local Business Licenses and Permits: In addition to state requirements, your Delaware LLC may also need to obtain business licenses or permits at the county or city level. This may include a general business license, zoning permits, or specialized licenses for specific business activities. Contact your local city or county government office to determine the necessary licenses and permits for your LLC.
• Fictitious Business Name (DBA): If your Delaware LLC plans to operate under a different name than the one registered with the Delaware Secretary of State, you may need to file a Fictitious Business Name (also known as a “Doing Business As” or DBA) with the county clerk’s office in the county where your business is located.

To ensure your Delaware LLC remains in compliance with all applicable taxes, licenses, and permits, it is essential to conduct thorough research based on your specific industry, location, and business activities. Consulting with a professional service or speaking with an attorney or accountant familiar with your industry can provide valuable guidance and assistance in navigating these requirements.

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Step 7: Open a Business Bank Account

Opening a business bank account for your Delaware LLC is essential in establishing and maintaining a clear separation between your personal and business finances. This separation, also known as maintaining the “corporate veil,” helps ensure that the limited liability protection provided to LLC members remains intact. Here are some tips and considerations for opening a business bank account for your Delaware LLC:

1. Choose the Right Bank: Research various banks and credit unions in your area, comparing their business banking products, services, and fees. Look for a bank that offers business checking and savings accounts and additional services such as credit cards, lines of credit, and merchant services, if needed.
2. Gather Required Documentation: When opening a business bank account, you will typically need to provide the following documentation:

• A copy of your Delaware LLC’s Certificate of Formation
• Your LLC’s Operating Agreement
• Your LLC’s EIN (Employer Identification Number)
• A valid government-issued photo ID for each account signer (e.g., driver’s license, passport)

3. Open the Account: Once you have chosen a bank and gathered the necessary documentation, visit a local branch to open the account. Some banks may also offer online account opening options. Be prepared to make an initial deposit, as most banks require a minimum deposit to open a business checking or savings account.
4. Establish Authorized Signers: Determine who must sign authority on your Delaware LLC’s bank account. This can include LLC members, managers, or other authorized individuals. These signers will have the authority to make transactions, sign checks, and access account information on behalf of the LLC.
5. Maintain Accurate Records: Keep detailed records of all transactions and financial activities related to your Delaware LLC’s bank account. This will make managing your business finances more manageable and help maintain the separation between personal and business assets, ensuring the continued protection of the corporate veil.

By opening and maintaining a dedicated business bank account for your Delaware LLC, you are taking an essential step in protecting your personal assets, simplifying financial management, and creating a solid foundation for your business’s future growth and success.

Cost of Starting an LLC in Delaware

Here are the fees associated when starting an LLC in Delaware:

1. Secretary of State filing fee

To form an LLC in Delaware, you must file Certificate of Formation with the Delaware Secretary of State. The regular filing fee is $90; if you need expedited processing, it will cost an additional $50.

Delaware Domestic LLC

• Online Filing: $90 + $175 minimum Franchise Tax.
• Filing Statement of Information within 1 year of registration: $0 because it is not mandatory.
• By Mail: Complete the application form and mail it to Delaware Division of Corporations, 401 Federal Street, Suite 4 Dover, DE 19901. This costs $90 + expedited processing fee for counter drop off (non-refundable).

Delaware Foreign LLC

• Online Filing: $90 + $175 minimum Franchise Tax.
• Filing Statement of Information within 1 year of registration: $0 because it is not mandatory.
• By Mail: Complete the application form and mail it to Delaware Division of Corporations, 401 Federal Street, Suite 4 Dover, DE 19901. This costs $90.

2. Name Reservation fee

If you want to reserve your desired LLC name before filing the Certificate of Formation, you can do so for a Not available (online) and $75 (offline) fee. The name reservation is valid for 120 days, giving you ample time to prepare and submit your Certificate of Formation. To reserve a name, you must submit a Name Reservation Request form to the Secretary of State by mail or in person, along with the required fee.

3. Registered Agent fee

Delaware requires all LLCs to have Registered Agent for the service of process. Registered Agent services typically cost between $50 – $300 per year, depending on the provider. Some popular Registered Agent service providers in Delaware include Northwest Registered Agent, LegalZoom, and Incfile. Besides the annual fee, these providers offer additional services such as mail forwarding and compliance notifications.

4. Business licenses and permits

Depending on your business type and location, you may need to obtain various licenses and permits. The costs for these can vary widely, so it’s essential to research your specific business requirements. To identify the licenses and permits applicable to your business, you can use the Delaware Division of Corporations (https://corp.delaware.gov/) website.

5. Operating Agreement

Although not required by law, having an operating agreement for your LLC is a good idea. You can draft one yourself or enlist the help of an attorney, which can cost anywhere from $1,000 or more. The operating agreement outlines your LLC’s ownership structure, management, and procedures. It can help prevent member disputes and provide clear decision-making and profit distribution guidelines.

6. Employer Identification Number (EIN)

Most LLCs need an EIN for tax purposes, bank account opening, and hiring employees. You can obtain an EIN free from the Internal Revenue Service (IRS) by submitting an online application or mailing Form SS-4. The online application is the fastest method; you will receive your EIN immediately upon completion. If you choose to mail the form, the processing time can take up to four weeks

Ongoing Maintenance for Your Delaware LLC

Maintaining your Delaware LLC’s good standing with the state is crucial for avoiding penalties and ensuring the continued protection of your limited liability status. Here are the ongoing maintenance tasks and filing requirements for your Delaware LLC:

• Annual Franchise Tax: All Delaware LLCs are required to pay an annual franchise tax of $175 minimum. This tax can be paid using Delaware’s online tax portal or by mail. Failure to pay the annual franchise tax can result in penalties, interest, and suspension or forfeiture of your LLC’s good standing with the state.
• Annual Report: Every two years, your Delaware LLC must file an annual report with the Delaware Secretary of State, updating the company’s information, such as Registered Agent, address, management structure, and a brief description of the business. The Biennial Report filing fee is $0 because it is not mandatory; the form can be filed online, by mail, or in person. The Statement of Information is due within 1 year of the initial registration of your Delaware LLC and every two years after that. Failure to file the Statement of Information on time can result in penalties and possible suspension of your LLC’s good standing with the state.
• Business Licenses and Permits: Ensure your Delaware LLC maintains compliance with any necessary business licenses and permits at the state, county, or city level. This may include renewing or updating licenses and permits and adhering to reporting or inspection requirements.
• Tax Filings: Besides the annual franchise tax, your Delaware LLC may be subject to other state tax filings, such as sales tax, employment tax, or income tax, depending on your business activities. Stay current with all tax filing and payment deadlines to avoid penalties and maintain good standing with the state.
• Registered Agent and Business Address: If there are any changes to your Delaware LLC’s Registered Agent or business address, update this information promptly with the Delaware Secretary of State. This ensures your LLC receives important legal and tax-related notices, maintaining compliance with Delaware law.
• Operating Agreement Updates: Periodically review and update your Delaware LLC’s Operating Agreement to reflect any changes in the business, such as new members, changes in ownership percentages, or management structure adjustments. Keeping your Operating Agreement current helps prevent future disputes and ensures a clear understanding of the business’s rules and procedures.

By staying on top of these ongoing maintenance tasks and filing requirements, you can ensure your Delaware LLC remains in good standing with the state, protecting your limited liability status and fostering a successful business environment.

FAQs

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How Fast Can I Form an LLC in Delaware

The first step in forming an LLC in Delaware is choosing a name for your business and checking its availability with the state. While this may seem like a simple task, it is essential to ensure that your chosen name is unique and complies with Delaware’s naming requirements. This step can be completed quickly by conducting a search on the Delaware Division of Corporations website.

Next, you will need to designate a Registered Agent for your LLC. A Registered Agent is a third party responsible for accepting legal documents on behalf of your business. In Delaware, this can be an individual or a company that is authorized to do business in the state. Choosing a Registered Agent is crucial as they will be the point of contact for any legal matters involving your LLC.

Once you have chosen a name and Registered Agent, you can prepare your Articles of Organization. This document outlines vital information about your LLC, including its name, purpose, Registered Agent, and the names and addresses of its members. Filing the Articles of Organization with the Delaware Division of Corporations can be done online or by mail, and the processing time can vary depending on the method chosen.

After your Articles of Organization are filed and approved, you will need to create an Operating Agreement for your LLC. While not required by the state, an Operating Agreement is essential for outlining the internal workings and management structure of your business. This document can be drafted quickly but should be carefully considered to avoid any later disputes among members.

Finally, you will need to obtain an Employer Identification Number (EIN) from the Internal Revenue Service (IRS). An EIN is necessary for tax purposes and opening a business bank account. The application for an EIN can be completed online, and you will receive your number immediately upon approval.

Overall, the process of forming an LLC in Delaware can be completed relatively quickly, especially with the availability of online filing options. However, it is essential to ensure that all steps are done correctly and in compliance with Delaware’s laws and regulations. Working with a business attorney or consulting a formation service can help streamline the process and avoid any potential pitfalls in forming your LLC.

In conclusion, the speed at which you can form an LLC in Delaware will depend on various factors, including your preparedness, compliance with state requirements, and the method of filing. By taking the time to understand the process and navigate it carefully, you can establish your business quickly and start reaping the benefits of operating as an LLC in Delaware.

Conclusion

Starting Delaware LLC can be seamless and efficient when adhering to the steps outlined in this comprehensive guide. By carefully selecting the appropriate business entity and diligently taking the necessary steps to form an LLC in Delaware, you set a strong foundation for your enterprise. Furthermore, ensuring ongoing compliance with state regulations, including timely filing of required documents and payment of associated fees, will help maintain the good standing of your LLC. By following these guidelines, entrepreneurs can confidently embark on their journey of building a thriving business in The First State. Visit LLCBase for more valuable information about successfully starting an LLC in Delaware.