10 Tips Before Hiring A Lawyer to Open LLC

By: Brad Nakase, Attorney

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Ever since he was a kid, Alex has always loved hamburgers. But as Alex grew up, he developed a taste for creative, gourmet burgers rather than your typical fast-food fare. After high school, Alex went to culinary school to hone his cooking skills and learn how to make the best burgers in the world. He explored cuisine from dozens of cultures and put together a classic American menu blending all these unique flavors from around the world. Now, Alex would like to create his own restaurant in California where everyone can sample his one-of-a-kind burgers and fries. While Alex knows a ton about the culinary world, he does not know much about starting a business. He has heard that limited liability companies have a lot of advantages, including liability protection and tax benefits. He is aware that he can open the LLC on his own by filing certain information with the state. That said, Alex is not very good with handling administrative matters, especially ones as important as this. He is worried that if he does something wrong, he will not be able to create the business of his dreams. In order to make sure he gets things right the first time, Alex hires a business lawyer to guide him through the process of opening an LLC.

10. How a Lawyer Can Help Open an LLC

A limited liability company, or LLC, is one of several types of businesses that an entrepreneur can choose from. While a limited liability company has the reputation of more freedom and ease, there are still requirements and regulations that must be met and followed.

If a business owner or entrepreneur is confused about the process, or simply wants some guidance, then they should consider contacting a business attorney to help with opening an LLC. A law firm specializing in helping business can assist in the following ways:

  • Take care of filing
  • Search the availability of a business name
  • Act as a registered agent
  • Handle compliance paperwork

And more! A lawyer can help with all aspects of forming a business in California, including a limited liability company.

In order to review the process of creating an LLC, let’s go over the basic steps.

9. Picking a Name

A limited liability company is required to have a unique name. This means that a company cannot have the same name as another LLC in existence, nor can it have a name that is “deceptively similar.”

What does deceptively similar mean in this case? Let’s say that a business owner wants to open a burger restaurant and decides to call it MacDonald’s. This name is so similar to McDonald’s that it would confuse customers; therefore, it is deceptively similar.

A business must also not have the words “incorporated” or “corporation” because the business is an LLC and not a corporation. This would create legal confusion. Instead, an LLC must have an abbreviation as part of its name that indicates the company is a limited liability company. This means the name should include “LLC,” “L.L.C.,” “Limited Liability Company,” or some other variation.

Also, an LLC’s name cannot have words like “insurance,” “bank,” or “trust,” since these may be deceptive in nature if the LLC does not offer these services.

Once a business owner comes up with a unique and distinguishable name, they will need to check its availability to make sure that no one else is using it or has reserved it. The owner should check the Secretary of State’s website to review their name database. If an owner hires a business lawyer to assist in the LLC creation process, then the lawyer will be able to do this type of search.

8. Including Other Members

There is a lot of flexibility in an LLC’s structure. That means that there is more freedom when it comes to taxation, formation, and personnel than one would have as an S Corp or C Corp.

In California, an LLC can be run by a single person. However, there can also be other owners, otherwise known as members, of an LLC. If there are other members involved in the LLC, then it may be a good idea to draft an LLC Operating Agreement. This divides rights and responsibilities, as well as determines how profits and losses are distributed among members.

Members don’t even have to be from California. Let’s say Dan opens an LLC in California, but he wants his best friend Mark to be a member. Mark lives in Maryland. Even so, he can still be a member of Dan’s LLC in California.

7. Finding a Registered Agent

An LLC is required to have a registered agent. This agent is a person who agrees to receive tax, legal, and government documents on behalf of the business. An owner can serve as his or her own registered agent, choose a separate one, or have a law firm serve as the registered agent. The main point is to have the individual agent available during business hours to receive documents.

While it is possible to serve as one’s own registered agent, it is advisable to pick a separate agent. This is because registered agents must have a physical address in the state and need to be present to receive documents during business hours. By picking a third-party to serve as registered agent, a business owner may move locations or go on vacation without fear of missing important communications or documents.

6. Getting a Federal Tax ID

LLCs in California need to have a Federal EIN tax number. This is essentially a social security number for a company. It is needed to complete business contracts, tax filings, and other important documents. A business owner can submit a request to receive an EIN from the Internal Revenue Service (IRS).

In California, companies are not required to have a state identification number, only a federal one.

Again, a business lawyer will be able to complete this step if a business owner prefers.

5. Paying the State Filing Fee

Each state has its own filing fee for forming an LLC. An LLC can be created in California for under $100, though paying a bit more can expedite the process.

4. File Articles of Organization

This document is the founding charter of an LLC and is filed with the state. The state will review the name and other information about the company before officially registering it. Once the paperwork is approved, you’re in business!

If this task seems daunting, or a business owner would like to ensure it is done properly, then he or she may hire a business attorney to handle completing and filing the Articles of Organization.

Once a business has followed these steps, it will be ready to start business as an LLC. It is important that the company remain in good standing in order to maintain the benefits of an LLC, specifically the limited liability. In order to run a successful LLC, one should consider the following steps.

3. Creating an LLC Operating Agreement

Under California law, limited liability companies are required to have an operating agreement. In fact, only four other states have this requirement. An operating agreement addresses how a company will be run or operated. It will detail management structure and how managers will relate to one another departmentally and in terms of deference. The operating agreement will also determine how profits and losses are distributed among members, as well as any terms by which more members are added. This agreement can technically be written or oral, though having it in writing is highly recommended. A written operating agreement helps protect a company’s limited liability. An agreement can always be amended at a later time, and these amendments should also be written and preserved. The operating agreement does not need to be filed with the state or any agency. It should simply be kept in the company’s records.

A business lawyer can always help an LLC construct an operating agreement so that all bases are covered.

2. Filing a Statement of Information

In California, LLCs must file a statement of information every two years. This document is only one page long and mostly contains information that is already asked up front. This form is the state’s way of keeping track of the business and any changes that may have been made. It costs $20 to file a statement of information, and it must be completed every other year.

The information required includes:

  • State filing number (as printed on the Articles of Organization)
  • Address of company
  • Address where business records are stored
  • Name of CEO
  • Names of additional members and managers
  • Registered agent’s information
  • Business type

It is possible to file Statements of Information online using the California Secretary of State’s website.

1. Filing Taxes

Limited liability companies are also flexible when it comes to taxation. LLCs are typically “pass-through” entities, which means that any profits and losses will pass through to the owner(s) and be represented on their personal tax returns. Business taxes will therefore be paid on personal tax forms. That said, an LLC can also choose to be taxed in the manner of a corporation. If an LLC chooses to do this, it is most likely because the owners want the benefit of “retained earnings.” This means keeping the profits a business makes within the business.

Still, the default is that LLC profits and losses will be reported on the member’s personal tax return.

LLCs in California must also pay an $800 franchise tax each year. The first payment should be made within 90 days of the LLC’s formation, and then each year after.

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