Delaware Limited Liability Company Certificate of Formation

Last Revised: October 24, 2023.

About this Form

A certificate of formation form is the document that one must complete and submit to the state to establish the creation of an LLC within the State of Delaware. It sets forth the name of the proposed company, the registered agent for service of process, and the address of the place of business, among other information. The purchased version of this form is guaranteed compliant with the laws of the State of Delaware. It comes complete with instructions and filing information for creating an LLC within the state.

Why form an LLC in Delaware?

✔ Business-Friendly State. Delaware has consistently been the top state in the U.S. for the formation of new business entities, such as LLCs, for decades. The Delaware Court of Chancery, which is known for its knowledgeable judges and extensive case law related to businesses, is highly regarded throughout the country.

✔ Strong Privacy Laws. Delaware provides strong privacy protections for LLCs, making it a popular choice. Delaware law does not require LLCs to disclose publicly the names of their owners (called "members"). Consequently, it is typically more challenging to determine who is behind a Delaware LLC. This protection can prove advantageous for LLCs that want to keep their ownership information private for any reason.

✔ Greater Legal Certainty. The Delaware General Corporation Law is so well-litigated and understood due to the volume of cases that it sees that its courts rarely see a case of first impression. To that extent, predicting the outcome of a legal dispute is often a more straightforward task in Delaware than in another jurisdiction. This predictability helps parties identify and narrow the settlement zone, which can help them avoid costly, protracted litigation in which the outcome may otherwise prove uncertain and risky. For these reasons, plus strong privacy protections and low taxation, Delaware is the top venue for businesses in the U.S.

✔ No State-Level Taxes. LLCs formed in Delaware that do not conduct business within the state are not subject to state-level income or sales taxes, which can be a significant advantage for LLCs that operate in other states. Delaware only requires LLCs to pay an annual tax of $300, due on June 1st.

✔ No Annual Reporting. The state does not require LLCs to file annual reports. As a result, an LLC can save time and money, keep its business activities and financial information private, and avoid the complexity and confusion of preparing and filing the report. This can allow the LLC to focus on running its business and avoid additional compliance requirements and the risk of administrative dissolution.

✔ Advanced Structuring Permissible. Delaware law allows for the creation of series LLCs and statutory trusts within the LLC, as well as registered series, which are treated as separate legal entities for certain purposes. This flexibility can be useful for LLCs that want to segregate different parts of their business, hold assets in a trust-like structure or engage in trust-like activities, or access capital markets or raise money from investors.

Accepted Filing Methods

Delaware accepts the filing of a certificate of formation form online through its e-file system, Monday through Friday, excluding state holidays. It also accepts filing via U.S. mail. It does not accept submissions via fax.

Name Availability & Requirements

 
The requirements for naming an LLC within the state are set forth in 6 Del. C. § 18-102. The name must contain the words “Limited Liability Company” or the abbreviation “L.L.C.” or the designation “LLC.” The name must be distinguishable from those of other entities on file with the state and may not infringe on any registered trademark. The name may contain the words: “Company,” “Association,” “Club,” “Foundation,” “Fund,” “Institute,” “Society,” “Union,” “Syndicate,” “Limited,” “Public Benefit” or “Trust” (or abbreviations of like import). The name may not contain the word “bank” or any variation of that word unless the company is formally organized as a bank under state law.

One may determine the availability of a proposed business name for use within Delaware by querying the state's official Business Entity Search tool.

Required Fees

Delaware imposes a fee of $110 for the filing of a certificate of formation. A same-day expedite service is available for an additional $100, or 24-hour service is available for an additional $50. Upon successful processing, the filer will receive back a stamped copy of the certificate, but for an additional $50, the filer can opt to receive a certified copy. Expect to pay annual taxes in the amount of $300, due June 1.

Statutory Authority & Requirements

The statutory authority for an LLC within the state is Title 6, Chapter 18, the Limited Liability Company Act (6 Del. C. § 18-101 et seq).

The statutory requirements for a valid certificate of formation filing are set forth in 6 Del. C. § 18-201. The text of the statute reads as follows:

§ 18-201 Certificate of formation.

(a) In order to form a limited liability company, 1 or more authorized persons must execute a certificate of formation. The certificate of formation shall be filed in the office of the Secretary of State and set forth:
(1) The name of the limited liability company;
(2) The address of the registered office and the name and address of the registered agent for service of process required to be maintained by § 18-104 of this title; and
(3) Any other matters the members determine to include therein.
(b) A limited liability company is formed at the time of the filing of the initial certificate of formation in the office of the Secretary of State or at any later date or time specified in the certificate of formation if, in either case, there has been substantial compliance with the requirements of this section. A limited liability company formed under this chapter shall be a separate legal entity, the existence of which as a separate legal entity shall continue until cancellation of the limited liability company's certificate of formation.
(c) The filing of the certificate of formation in the office of the Secretary of State shall make it unnecessary to file any other documents under Chapter 31 of this title.
(d) A limited liability company agreement shall be entered into or otherwise existing either before, after or at the time of the filing of a certificate of formation and, whether entered into or otherwise existing before, after or at the time of such filing, may be made effective as of the effective time of such filing or at such other time or date as provided in or reflected by the limited liability company agreement.
(e) A certificate of formation substantially complies with § 18-201(a)(2) of this title if it contains the name of the registered agent and the address of the registered office even if the certificate of formation does not expressly designate such person as the registered agent or such address as the registered office or the address of the registered agent.