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CHAPTER 2

Articles of Organization

In terms of importance and ultimate authority, your state’s limited liability company act has first priority, your articles of organization are second, and your operating agreement is considered third. In the event of a conflict between the articles of organization and your state’s act, the act will control. If a conflict exists between the articles and the operating agreement, the provision in the articles will prevail.

This book is intended as an operations manual, so you may already have filed your articles of organization. If so, you may want to skip this chapter.

The life of an LLC begins with the preparation and filing of articles of organization. Typically a one-page document, the articles of organization set out the following basic information:

• The name of the LLC

• The name and address of the agent for service of process, the person or entity authorized to receive legal papers on behalf of the LLC

• A statement of the LLC’s purpose

• Declaration as being member-managed or manager-managed (required by some states)

• Name of at least one member or manager (required by some states)

To form an LLC, you file articles of organization with the secretary of state or equivalent department. See the State Reference Information on the accompanying CD for contact information for the appropriate department. With the articles, you must also submit a filing fee, which differs by state.

Use the Secretary of State’s Model Articles of Organization

The best place to start in preparing your articles of organization is to visit the secretary of state’s web site in the state in which you want to organize. In most cases, these sample articles will be all you need.

▼ Expert Tip

Don’t file organization papers in the closing weeks of a fiscal year, such as in the last weeks of December—you may be required to file tax returns for the entire year. Wait until January 1 to file your organization papers.

In the past few years, many states have offered fill-in-the-blank articles. The use of such forms is now mandated in several states, most notably Nevada. Bear in mind that fill-in-the-blank forms are going to offer only the minimum. If you have additional clauses that you wish to add, such as additional classes of ownership or specific limits on the liability of officers and managers for actions on behalf of the LLC, you’ll need to add those clauses on continuation pages.

▼ Expert Tip

You can usually pick your date of organization. If you would like a special date, such as January 1 or a birthday, contact the secretary of state’s office in the state in which you intend to organize. Almost all states will let you designate a special date of organization when you file.

Expedited Service May Be Available

If you want to form your LLC immediately or at least very quickly, some states offer expedited service available for an additional fee. Delaware and Nevada, where organization is a cottage industry, both offer expedited filing. Nevada offers a 24-hour service for an additional $100. Delaware goes further: it offers the fastest organization in the country, with 24-hour service for $50, same-day service for $100, two-hour service for $500, and one-hour service for $1,000.