LLC Formation Requirements
West Virginia LLC Formation Statute
The following LLC formation statutes are from the West Virginia Uniform Limited Liability Company Act:
Section 31B-2-203. Articles of organization.
(a) Articles of organization of a limited liability company must set forth:
(1) The name of the company;
(2) The address of the initial designated office in West Virginia, if any, and the mailing address of the principal office;
(3) The name and address of the initial agent for service of process, if any;
(4) The name and address of each organizer and of each member having authority to execute instruments on behalf of the limited liability company;
(5) Whether the company is to be a term company and, if so, the term specified;
(6) Whether the company is to be manager-managed and, if so, the name and address of each initial manager;
(7) Whether one or more of the members of the company are to be liable for its debts and obligations under section 3-303(c);
(8) The purpose or purposes for which the limited liability company is organized; and
(9) An e-mail address where informational notices and reminders of annual filings may be sent, unless there is a technical inability to comply.
(b) Articles of organization of a limited liability company may set forth:
(1) Provisions permitted to be set forth in an operating agreement; or
(2) Other matters not inconsistent with law.
(c) Articles of organization of a limited liability company may not vary the nonwaivable provisions of section 1-103(b). As to all other matters, if any provision of an operating agreement is inconsistent with the articles of organization:
(1) The operating agreement controls as to managers, members and members' transferees; and
(2) The articles of organization control as to persons other than managers, members and their transferees who reasonably rely on the articles to their detriment.
What This Means: Key Takeaways*
Required Information for West Virginia LLC Formation:
- LLC’s name (Must meet West Virginia LLC naming requirements)
- LLC principal office’s street and mailing address
- Agent for service of process’s name and West Virginia designated office address
- The name and address of any managers, if applicable
- The name and address of each organizer
- Whether the company is only going to operate for a certain amount of time (term), and if so, the time when the LLC will dissolve
- The purpose of the LLC
- Whether member(s) will be liable for debts or obligations of the LLC
Optional Information for West Virginia LLC Formation:
- LLC organizers can add their own provisions as long as the provisions don’t conflict with LLC statute.
- LLC organizers can make statements about management structure, but they don’t have to. If no statements are made about management structure, the state will assume that the business has at least one member.
Recommended: For help with completing the LLC formation forms, visit our West Virginia LLC Articles of Organization guide.
Agent for Service of Process Duties and Appointment
West Virginia LLC laws define the duties and appointment of the LLC agent for service of process, known as a registered agent in most states.
West Virginia LLC Agent for Service of Process Statute
The following agent for service of process statutes are from the West Virginia Uniform Limited Liability Company Act:
Section 31B-1-108. Designated office and agent for service of process.
(a) A limited liability company and a foreign limited liability company authorized to do business in this state may continuously maintain in this state:
(1) An office, which need not be a place of its business in this state; and
(2) An agent and address of the agent for service of process on the company.
(b) An agent shall be an individual resident of this state, a domestic corporation, another limited liability company or a foreign corporation or foreign company authorized to do business in this state.
(c) Every limited liability company shall pay the annual report fee of $25 for the filing of the annual report for the limited liability company as described in section two-a, article one, chapter fifty-nine of this code, which fee shall be due and payable each year after the initial registration of the limited liability company on or before the dates specified in section two-a, article one, chapter fifty-nine of this code and other applicable provisions thereof, and shall be collected by the Secretary of State and deposited in the general administrative fees account established by section two, article one, chapter fifty-nine of this code. The Secretary of State shall dedicate sufficient resources from that fund or other funds to provide the services required in this chapter.
(d) The Secretary of State shall keep a record of all processes, notices and demands served pursuant to this section and record the time of and the action taken regarding the service.
(e) This section does not affect the right to serve process, notice or demand in any manner otherwise provided by law.
(f) The amendments to this section enacted in 2008 are effective beginning on and after July 1, 2008.
What This Means: Key Takeaways*
A West Virginia agent for service of process must:
- Maintain a designated office in West Virginia (i.e., no P.O. boxes)
- Be an individual, a West Virginia corporation or LLC, or foreign corporation or LLC with a business address that is the same as the registered office address
Agent for service of process information is kept on file by the State of West Virginia. If you change your agent for service of process or if your agent for service of process resigns, you must file a change of agent for service of process form.
West Virginia LLC laws provide guidelines for creating and maintaining an LLC operating agreement.
The following operating agreement statutes are from the West Virginia Uniform Limited Liability Company Act:
Section 31B-1-103. Effect of operating agreement; nonwaivable provisions.
(a) Except as otherwise provided in subsection (b) of this section, all members of a limited liability company may enter into an operating agreement, which need not be in writing, to regulate the affairs of the company and the conduct of its business, and to govern relations among the members, managers and company. To the extent the operating agreement does not otherwise provide, this chapter governs relations among the members, managers and company.
(b) The operating agreement may not:
(1) Unreasonably restrict a right to information or access to records under section 4-408;
(2) Eliminate the duty of loyalty under section 4-409(b) or 6-603(b)(3), but the agreement may:
(i) Identify specific types or categories of activities that do not violate the duty of loyalty, if not manifestly unreasonable; and
(ii) Specify the number or percentage of members or disinterested managers that may authorize or ratify, after full disclosure of all material facts, a specific act or transaction that otherwise would violate the duty of loyalty;
(3) Unreasonably reduce the duty of care under section 4-409(c) or 6-603(b)(3);
(4) Eliminate the obligation of good faith and fair dealing under section 4-409(d), but the operating agreement may determine the standards by which the performance of the obligation is to be measured, if the standards are not manifestly unreasonable;
(5) Vary the right to expel a member in an event specified in section 6-601(6);
(6) Vary the requirement to wind up the limited liability company's business in a case specified in section 8-801(b)(4) or (b)(5); or
(7) Restrict rights of a person, other than a manager, member and transferee of a member's distributional interest, under this chapter.
What This Means: Key Takeaways*
An LLC operating agreement allows LLC members to create rules for how their unique LLC operates. These rules are often called “terms” or “provisions.”
Operating agreements are limited by state statute. For example, if the statute says LLC members can’t dissolve an LLC without all members agreeing, LLC members can’t change or override the statute with an operating agreement.
When an operating agreement is in place, it’s easier to navigate situations involving the operation of the LLC. And, if a lawsuit or dispute arises, LLC members (or the courts) have something to reference.
If a dispute arises that can’t be resolved by LLC members and there isn’t an operating agreement, the courts will use LLC statute to resolve disputes.
Creating an Operating Agreement
Some LLCs, such as professional LLCs or real estate LLCs, might need unique terms, while others might only need to cover standard provisions:
- Each member’s responsibilities
- How new members will be admitted
- How existing members may transfer or terminate their membership
- How profits and dividends will be distributed
- The process for amending the operating agreement
Annual Report Requirements
West Virginia LLC laws set out the requirements for annual LLC reporting. The State of West Virginia has created the WV One Stop Business Portal to simplify the process.
West Virginia LLC Annual Report Statute
The following annual report statutes are from the West Virginia Uniform Limited Liability Company Act:
Section 31B-2-211. Annual report for Secretary of State.
(a) A limited liability company, and a foreign limited liability company authorized to transact business in this state, shall deliver to the Secretary of State for filing an annual report that sets forth:
(1) The name of the company and the state or country under whose law it is organized;
(2) The address of its designated office, if any and the name and address of its agent for service of process in this state, if any;
(3) The address of its principal office;
(4) The names and business addresses of any managers and the name and address of each member having authority to execute instruments on behalf of the limited liability company; and
(5) An e-mail address where informational notices and reminders of annual filings may be sent, unless there is a technical inability to comply.
(b) Information in an annual report must be current as of the date the annual report is signed on behalf of the limited liability company.
(c) The first annual report must be delivered to the Secretary of State between January 1 and July 1 of the year following the calendar year in which a limited liability company was organized or a foreign company was authorized to transact business. Subsequent annual reports must be delivered to the Secretary of State between January 1 and July 1 of the ensuing calendar years.
(d) If an annual report does not contain the information required in subsection (a) of this section, the Secretary of State shall promptly notify the reporting limited liability company or foreign limited liability company and return the report to it for correction. If the report is corrected to contain the information required in subsection (a) of this section and delivered to the Secretary of State within thirty days after the effective date of the notice, it is timely filed.
What This Means: Key Takeaways*
Your West Virginia LLC annual report must state the following information (and must be current as of the date of filing):
- The name of the LLC
- Street address of principal office and mailing address
- Agent for service of process name and designated office address
- Managers names and addresses and any members names and addresses that are authorized to sign documents on behalf of the LLC
- An email address that can receive LLC notices and other correspondence from the State of West Virginia
Annual Report Due Dates:
- The first annual report must be delivered to the Secretary of State between January 1 and July 1 of the year following the calendar year in which a limited liability company was organized. The annual report is due each year thereafter.
*This information is provided for educational and entertainment purposes only. Please consult a lawyer for legal advice.