So how does someone actually form a Delaware entity? As it turns out, the actual tasks required to form one are not that expensive, nor do they take a lot of time. But it is important to understand in advance why you want to form such an entity, as that will affect various choices you make along the way. And, of course, it is always a good idea to get the advice of a qualified lawyer.
First, you must decide what kind of entity you want. For example, do you want to form a corporation or a limited liability corporation (“LLC”)? There are a number of other forms, though the ones specifically mentioned are among the most common. We have discussed these common entity forms and their characteristics in a previous post – keep those in mind when selecting an entity form, do your own research and thinking, and seek qualified legal advice.
You will also need to choose a name for the entity. That name will have to follow certain rules that you can find out from the Delaware Division of Corporations. For example, obviously, it cannot be the same as an existing business. There are other rules, such as that a corporation must including a word like “incorporated” or “corporation” (or an abbreviation like “inc.” or “corp.”).
If the entity will not have an office in Delaware, you will need to hire a “registered agent” and put their contact information on the forms you file with the Division of Corporations. A registered agent is a person or company whose job it is to accept service of process if your entity is sued in a lawsuit in Delaware. Hopefully that will never happen! But the good news is that registered agents are relatively cheap. A number of companies provide that service for a relatively low yearly price; information regarding them is available online.
It is a very good idea – and sometimes necessary – to put together certain organizational documents. We have briefly discussed in a previous post what organizational documents are and how they create rules for that entity. An attorney can help you do that, or you can look online for various resources, such as sample documents, to help you do that yourself. If you are doing that yourself, be very careful to make sure that all the rules make sense for the entity you are forming. Many lawsuits are caused or made worse when an entity has rules that apply not because they made sense for that entity, but because someone just adopted them without thinking about it!
Next, go to the Division of Corporations’ website and find out what they need from you to form your entity. They will charge a filing fee, depending on what type of entity you want to form and whether you are in a hurry. They will also tell you whether you need to file the entity’s organizational documents, and if so which ones. When your paperwork is ready, mail or fax it to the Division of Corporations.
Now you have formed your own Delaware entity! A Delaware entity has certain things it must do every so often in Delaware to maintain its good standing. For example, corporations must file an annual report and pay a franchise tax; other entities similarly have to pay an annual tax. Keep in mind there are a number of other things you may want or have to do that are outside the scope of this post, such as (1) getting an “Employer Identification Number” from the U.S. Internal Revenue Service; and (2) registering to do business in the State of Delaware, or another state.
Filed under: Basic Law of Corporations
Delaware Corporate Law Update 