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How to Form a LLC in Delaware

Learn how to start a LLC in Delaware by picking the right name, writing an operating agreement, and filing a Certificate of Formation.
Written by Katharine Jiang
Updated 7 months ago

Table of Contents

1. What is a LLC?

2. Should I form a LLC in Delaware? 

3. How do I pick the right LLC name in Delaware?

4. How do I file a Certificate of Formation in Delaware?

5. What's a registered agent? How do I pick a registered agent in Delaware?

6. What do I need in an operating agreement in Delaware? 

7. What is an EIN? How do I register for an EIN?

8. What taxes do I have to pay in Delaware?

9. What is a S-Corporation? How do I elect for my LLC to be an S-Corporation in Delaware?

10. How do I register as an out of state LLC in Delaware?

11. What are the ongoing requirements for being a LLC in Delaware?


1. What is a LLC?

A limited liability company (LLC) is a legal structure for a business that protects the company’s owners from the liabilities of the company. LLCs are a great fit for founders that want legal protection and a more informal structure than a corporation. Any income earned by the business is passed to the company’s owners and taxed as personal income. This is different from a corporation where income is typically taxed twice: corporate income and personal income when it gets to the owners. 

LLCs aren't the best fit for every business. Tell WizForm about your priorities (raising money, taxes, location) and WizForm will outline the pros and cons of each business type. 

2. Should I form a LLC in Delaware? 

You've probably heard from a lot of different websites and people that Delaware is the best state to form a company and that you should only form a company in Delaware. This is great advice for certain types of companies but not most companies. 

What types of companies should form in Delaware?

  1. High-growth companies backed by venture capital. Delaware is great for investors. 
  2. Tech companies that sell software that don't have a tax nexus in specific states. 
  3. Companies anticipating lawsuits. Delaware is business friendly and has a long history of established procedures for business lawsuits.
  4. Companies that want privacy. Delaware requires very little information to be filed compared to other states.
  5. People who live in Delaware and are trying to form a company there. 

Why shouldn't you form in Delaware?

  1. Most companies won't benefit from Delaware registration because you'll have to pay taxes based on where you live and where you make sales. With the exception of tech companies, registering in Delaware won't save you tax money unless most of your employees reside there or if most of your sales are in the state. 
  2. By registering in Delaware and having to register in the state where you actually live and make sales, you'll have to pay two separate states for annual fees and a minimum tax in Delaware (required even if you don't make any sales there). 

3. How do I pick the right LLC name in Delaware?

Requirement #1-

  • Pick a name that is distinguishable and available. While the meaning of “distinguishable” varies by state, it typically means a name should be different enough from an existing business name to avoid confusing a consumer. Here’s an example:
    -“Delicious Cookies” and “The Delicious Cookie” are not different enough.
    -“The Most Delicious Cookie” and “Delicious Cookies” are different enough to pass the test. 
  • Available means no one else claimed the business name in the state.

Requirement #2

  • Every LLC has to use a corporate suffix to indicate the company is a LLC. This means the last word in the name must be: “Limited Liability Company” “Limited Company” “L.L.C.” “LLC” “L.C.” “LC” “Limited” “Ltd.” “Company” “Co.”
  • Delaware allows you to reserve a name prior to registering the company. This prevents someone else from registering the name. WizForm recommends against reserving a name as its generally an unneeded expense for the company. 

Requirement #3

LLCs cannot use a prohibited word. While this list is made for Michigan, the rules apply to most other states. These words are reserved for companies with specific permissions to operate as a doctor, banker, or other profession listed. 


WizForm uses machine learning to check if your name is available and distinguishable by state. WizForm is unique compared to other websites in that WizForm checks for distinguishability.   

What is a Fictitious Name? How do I register a Fictitious Name in Delaware?

Fictitious names, also called DBAs/Trade Names/Assumed Names/Alternate Names, are made-up names that you can use to market your business. 

 Fictitious names are different from the legal name of your business. Fictitious names cannot contain a corporate suffix (LLC, Corporation, etc.) Many states, including Delaware, don't require fictitious names to be distinguishable/available like legal company names. In other words, there can be multiple companies with the same fictitious name.  

Fictitious names are used for three reasons:

  1. Companies want to market their company in multiple different ways. Imagine Coca-Cola Company vs. Coke. 
  2. There is a large company that owns multiple smaller companies with distinct brands. Imagine Alphabet, Inc. vs. Google.
  3. A company registered in one state cannot use their original name in a new state because the original name isn't available. They need a fictitious name.
Fictitious names are not required for most LLCs and Corporations unless they are a foreign company that can't use their original name in the new state. Fictitious names are required for sole proprietors if they aren't using their personal name. 

If you'd like to file a fictitious name in Delaware, you need to mail a fictitious name form to the County Clerk office where the registered office of the business is located. The form must be notarized. 

4. How do I file a Certificate of Formation in Delaware?

The Certificate of Formation is the document that every domestic LLC in Delaware has to file to register their company with the state of Delaware.

Delaware is unique in that they provide a template for you to fill out but you can craft your own Certificate of Formation. After filling out the Certificate of Formation, you can use the upload service on the Delaware Secretary of State website. Be mindful that Delaware's service only operates during business hours from Monday-Friday and won't allow you to upload documents after hours. 

The Certificate of Formation includes topics such as business name, mailing address, and registered agent. 

You might be wondering: Why would I use a service like WizForm to do this if I can just do it myself? You could do it by yourself but there are several benefits to using services like WizForm.

  • 1. Protecting your privacy. When you file the Certificate of Formation, all the information on the document is public (your name, your address, email, phone number). Anyone can look it up and use that information to send you mail/email/phone calls. If you use WizForm, we will incorporate on behalf of you and protect your privacy by using our name, address, email, and phone number. 
  • 2. Filling out the form correctly. While most of the sections are self-explanatory, there are some key sections that can be confusing. These include the company's duration, if the company should be run by a member or manager, the effective date of the company, and picking the right name. Additionally, you want to be careful that you don't over-disclose on the filing if your business needs to evolve in the future. 
  • 3. Using a Registered Agent. See the section below for more on registered agents and why you should use one.
  • 4. Setting up an operating agreement. Operating agreements are the rules that govern how a business is run. You need to make sure that your operating agreement covers situations like how to dissolve the company, transferable interests (if someone dies or gets divorced), rights of members, and voting procedures. 

5. What's a registered agent? How do I pick a registered agent in Delaware?

A registered agent is a person or company acting as your company’s contact when the government needs to reach you about a legal matter. This person is the person that is “served” a lawsuit. It’s smart to use a registered agent to protect your privacy and to ensure your company is reachable if a legal matter arises. If you appoint yourself as a registered agent and aren’t around when someone tries to serve you a lawsuit, the court can enter a default judgment for the other side (which is expensive). 


 There are many registered agent services, but WizForm is unique in that it has a national network of registered agents that only cost $25 a year. Most services will cost you $50-$125 a year. If you register with WizForm, the registered agent fee is part of the overall cost you pay WizForm. 

6. What do I need in an operating agreement in Delaware? 

Most states require you to have an operating agreement for your LLC.  These rules range from how profits are distributed to dissolving the company. All LLCs need an operating agreement because the government will control how you run your company without one. 


You do not have to file an operating agreement with the state. It's a private document. 


Each state varies in what a business is allowed to put in its operating agreement. If you want to write an operating agreement yourself (we do not advise this), you should look for these things in the state law:

  • Does the state limit indemnification? 
  • Voting Rights of Members
  • Appraiser and Dissenter Rights
  • Transfer Rights and how divorces/deaths affect the rights of members
  • Profit Distribution

Most companies will give you a generic template that doesn't fit your company's needs. WizForm is unique in that our team has tackled complex documents like mortgages and college financial aid. We understand that you want a document that is legally enforceable but also understandable. WizForm builds a customizable experience that allows you to understand your operating agreement, insert custom provisions, and meet state-specific laws. 

7. What is an EIN? How do I register for an EIN?

  • To set up a bank account and get paid by other vendors, you will need an Employer Identification Number (EIN). The IRS provides EINs for free. 
  • You will use your EIN to pay taxes with the federal government.  

WizForm can register for an EIN for you. Using advanced technology, WizForm can register you for an EIN in less than a minute. 

8. What taxes do I have to pay in Delaware?

Every business has to pay local, state, and federal taxes. LLCs are unique in that they aren't technically a federal tax classification like a corporation. The default tax status of an LLC is a sole proprietorship or a partnership. This means that all business income is passed to the business owners and taxed as personal income.

LLCs have the choice to elect a different tax status such as a C-Corporation or a S-Corporation. See the S-Corporation section below if you are curious about electing to be a S-Corporation to save money on taxes.

Delaware Specific Taxes

  • Delaware is unique in that it doesn't have a sales tax but it does have a gross receipts tax.  Look here to see more about who has to file and how to file for this tax. 
  • If you have employees in Delaware that earn wages, you need to register with the Delaware Department of Revenue to set up wage withholding, worker's compensation, and unemployment insurance. 
  • Delaware has a personal income tax and all profits passed to the founders of the LLC will be taxed as personal income. 
  • All Delaware LLCs have to pay $300 each year to Delaware (regardless of income or number of members). This is called the Annual Franchise Tax. 
  • You are required to file federal income tax on any profits that are made by your business. 

 9. What is a S-Corporation? How do I elect for my LLC to be an S-Corporation in Delaware?

S-Corporations are a type of Corporation that allow for more beneficial tax treatment but come with certain restrictions.

LLCs can elect to be taxed as a S-Corporation (less taxes) while keeping the structure of a LLC (more informal than a Corporation). 

The main benefit of combining a LLC and S-Corporation is how your profits are taxed. Let's look at an example.

  • Company A has $100,000 in profits. Let's say that the personal income tax rate is 35%. A standard LLC (without S-Corp status) would have 100% of the profits passed to the founders, and 35% of that money would go to taxes. The founders would give $35,000 to the government and keep $65,000.
  • Company B has $100,000 in profits. Let's say that the personal income tax rate is 35%, and the long-term capital gains tax rate is 20%. An LLC with S-Corp status would allocate 60% of the profits to "reasonable salaries" and 40% to dividends. The 60% (or $60,000) would be taxed at 35%, and the founders would have to pay $21,000 to the government. The 40% (or $40,000) would be taxed at 20%, and the founders would have to pay $8,000 to the government. The result is that the founders would pay $29,000 to the government and keep $71,000. The founders would save $6,000 a year on taxes compared to the company with normal LLC status. 

S-Corps have very specific requirements and can be quite time consuming to form. Check out our S-Corporation guide to understand the pros and cons to forming an S-Corporation. 

In order to file for S-Corporation status, you need to first register as an LLC and then file a Form 2553 with the IRS. You also need to ensure that your operating agreement is not in conflict with specific IRS requirements. 

 Delaware respects the federal S-Corp election and doesn't require a separate state filing.  Delaware S-Corporations still have to pay the annual franchise tax like other LLCs. 
WizForm can take care of the entire S-Corp process for you from writing your operating agreement to adhere to S-Corp requirements to filing with the IRS. 

10. How do I register as an out of state LLC in Delaware?

State governments refer to out of state companies as "foreign." This term includes out of state and out of country. 

States require you to register as a business if you "do business in a state." This term isn't super clear as each court will evaluate a business on a case by case basis. In general, you should register your business if you do any of the following:

  1. You have contracts with people or companies in the state.
  2. You have employees or offices in the state (this includes the founders)
  3. You have bank accounts in the state.
  4. You are paying local taxes or sales taxes in the state. 
  5. You use wholesalers or affiliates in the state to sell your product.

The key is if you are doing business consistently or in a 1-time transaction. If you are consistently doing business in a state, you need to register there.

If you don't register, you can get fined by the government, owe back taxes from when you started doing business, and lose the ability to fight lawsuits in court in that particular state. 

To register in Delaware as a foreign LLC, you need to:

  • Obtain a Certificate of Existence from the first state you incorporated in.
  • File a Certificate of Registration of Foreign Limited Liability Company. with the Delaware Secretary of State. 
  • Need to adhere to all tax requirements and annual filing requirements like domestic LLCs.

WizForm does not currently support foreign registrations but its on our roadmap for the near-term future! 

 11. What are the ongoing requirements for being a LLC in Delaware?

  • All LLCs and foreign LLCs must pay an annual $300 Alternative Entity Tax by June 1 of each year. The tax is paid to the Delaware Division of Corporations Franchise Tax Section. 
  • There are no annual report requirements in Delaware. 


WizForm is not a law firm and does not offer legal advice. The information in this article is based off independent research and should not be construed as legal advice. If you need legal advice, please consult an attorney. 
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