The Benefits of Incorporating Your Family Business in Delaware

Structuring and operating a business is a complex challenge under the best of circumstances. When family members are part of the equation, the complexity multiplies many times. On the other hand, some of the world’s most respected brand names today started out generations ago as family businesses. The LLC in particular gives you the flexibility to structure the business in a way that takes these complex variables into account. In addition, the corporation or Limited Liability Company creates a wall of separation between your personal assets and the functions of your family business.

As owners or participants in a business, family members must confront a range of issues:

  • Which family members “own” the business now?
  • Which family members contribute the most value to the business?
  • As the business grows, how will its ownership and management evolve?
  • How will ownership transition smoothly and equitably to the next generation and to future generations?

Benefits of Incorporating Your Family Business in Delaware

  • Limited liability
  • Asset protection
    • Homesteading & Insurance
    • Delaware Family Limited Partnerships
    • Delaware Corporations and Limited Liability Companies
    • International Corporations
    • Delaware Trusts
    • International Trusts
  • Offsets inadequate insurance
  • Pass-through taxation (with S-Corp and LLC)
  • Business deductions for losses and expenses
  • Enhanced credibility with existing and potential customers
  • Investor attraction

Many family businesses today are taking advantage of Delaware’s flexible LLC and close corporation laws. The flexibility of the Delaware LLC stems the way it allows business owners to establish what is known as a private operating agreement. This agreement is similar to a contract between family members. The contract sets forth the company’s governance structure and does not have to be filed with the State of Delaware; the arrangement is the personal, private business of you and your family.

In the operating agreement, you determine the rights and privileges of the members. Among a wide array of arrangements you can set up, the agreement can identify and separate owners from managers, define compensation arrangements, and mandate what will happen in the event one of the principals retires or dies.

A Delaware LLC can even allow for different classes of members: those who run the company, those who are employed by it, children of family members, and future generations. At the same time, a Delaware LLC provides your family with the benefits of pass-through taxation and limited liability.

The Delaware close corporation is meant for tight-knit groups such as a family. Its structure makes it very difficult for a (family) shareholder to transfer ownership to someone outside the family without the consent of the other family members. This is a way to ensure that business remains in the family as long as its members want it to. And, if the close corporation elects Subchapter S status with the IRS, it also enjoys the benefits of pass-through taxation and limited liability.

LLCs are a good choice to hold the assets because they are tax-free companies with strong liability protection. And, if they are set up properly, you won’t need to file separate tax returns for each LLC, which saves time and money. The family home is a personal asset. For further protection, your home should be homesteaded and insured. Homestead laws vary from state to state, so be sure to check with a local lawyer about the rules that govern your state’s homestead protection. In some states, you will need to register to be covered; in other states, there maybe a limit on the value you can protect.

If there is a family farm involved, protect it by placing it in a Family Limited Partnership (FLP). The FLP will allow you to maintain control, but will spread out the legal ownership. If you are sued personally, the farm won’t be sold to satisfy a judgment against you. In addition to being the first step in estate planning, Family limited Partnerships are also great asset protection plans.

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101 on an LLC Agreement

The Delaware legislature created the LLC business form to give maximum effect to the members’ freedom to contract with one another upon whatever terms they deem best suited to their circumstances and goals. In a corporation, for example, Delaware law requires certain terms be included in the corporation’s constituent documents, mandates certain provisions related to corporate governance, and limits (to some extent) the ability of parties to modify certain terms relating to voting or fiduciary obligations, among other things. In an LLC, however, the members are free to organize the LLC in whatever manner they choose, with near-total freedom to define the relationship among the members and the terms governing the operation of the entity. The fundamental terms of an LLC’s ownership, operation and management are set forth in its LLC agreement.

An LLC agreement can be a written document or merely an oral understanding. A written agreement, however, is typically used because it memorializes the understanding and agreements of the members, which, in the event of a later dispute or misunderstanding (or the unfortunate possibility of litigation), is an invaluable protection in the interest of all parties involved. Although each LLC agreement is different, an LLC agreement will generally set forth certain fundamental terms such as:

  • The ownership percentage of each member
  • The manner in which profits, losses and expenses are allocated
  • The authority of members to bind the LLC and participate in day-to-day management
  • The voting rights of each member in making certain key decisions
  • The circumstances under which a member may withdrawal from the LLC, and the way in which the member’s economic interest is calculated upon withdrawal
  • The ability of a member to sell or pledge its interest to a third party
  • Terms contemplating the death or disability of a member
  • The circumstances and terms under which new members may be admitted
  • The circumstances under which the LLC will be liquidated, and the priority of claims among the members upon liquidation
  • Indemnification rights (if any) in the event the LLC or member is sued in connection with the business of the LLC

Delaware does not require that the LLC agreement be filed and made publicly available. A Delaware LLC is typically formed anonymously by the filing of a Certificate of Formation with the State, which includes only the name of the LLC and the office of the registered agent (Harvard Business Services). That is it!!!

Harvard Business Services, Inc can assist you in forming an LLC, and has many types of LLC agreements that can either be used as-is or can serve as a starting point for you to develop your own terms and provisions. We can be reached at (800) 345-2677, and would be happy to provide you with more information.

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101: Search Engine Optimization

Search Engine Optimization or SEO is a vital form of marketing for almost any type of business ranging from a local fishing charter to a Fortune 500 company. Effective SEO enables a company’s website to rank higher on the Search Engine Results Pages (SERPs) for specific, targeted keywords when doing a search though one of the various search engines, such as Google, Yahoo, or MSN. The goal of any SEO campaign is to be the top listing on the first page of the organic search results. By working to uncover the various algorithms used by  search engines to categorize the information on the internet, successful SEO campaigns can tailor sites to increase relevance  to certain terms or keywords.

Theoretically, the higher a company appears in the SERPs  for a particular search term, the more visitors the site will receive and the better chance a sale will be made. For instance, even a small charter fishing operation in Delaware could benefit greatly by enacting an SEO campaign. By making subtle changes to their site, placement or ranking could drastically improve when someone searches “Tuna Fishing in Delaware” or some type of variable. Instead of spending hundreds or thousands of dollars advertising in local papers or magazines, which often produce little results, they could optimize their web site allowing their site to appear near the top of the list for certain terms. By taking advantage of the optimization the small fishing charter now is at the top of the list for that search, at the particular time someone is searching for a Charter fishing trip in Delaware.

Often businesses will hire a search engine optimizer to analyze the site and provide the necessary feedback to improve rankings. Tweaks or modifications to the site and often the HTML coding are required in order make the most of the campaign. If possible receive the input from the search engine optimizer during the creation or redesign of the site. This allows the site to be designed from the ground up to make the most of the optimization. Imagine clients looking for your product/service and instantly your site can appear at the top of the list above that of your competitors! Some tech savvy individuals will try and tackle the project on their own. Google offers a Sitemap program that helps to analyze the site and provide guidance to create your own SEO program.

Whether a search engine optimizer is brought in to assist or the project is tackled in house, search engine optimization is  definitely worth exploring for any business. To get started try reading Google’s Search Engine Optimization Starter Guide http://www.google.com/support/webmasters/bin/answer.py?hl=en&answer=35291

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