Prepared by:
DAVID J. WILLIS ATTORNEY
http://www.LoneStarLandLaw.com
Copyright © 2010. All rights reserved worldwide.
Asset Protection in Texas
With the New Texas Series LLC at its Core
by David J. Willis Attorney
Outline
- Principles of Asset Protection
- Deterrence of lawsuits and creditor actions
- exhaustion of your opponent and depletion of his resources
-
Elements of Asset Protection
- advance, preemptive planning
- creating legal barriers to personal liability
- maximizing anonymity in the public records
- utilizing homestead and income protections afforded by the Texas Constitution and Property Code
- asset spreading/compartmentalization
-
Basic Tools of Asset Protection
- limited liability companies (especially the Texas Series LLC)
- shell management company for real estate investors
- anonymous land trusts
- assumed name certificates
- attorney-client privilege
- more exotic devices, including offshore entities
Introduction
Texas has an established history of protecting debtors. This is a summary of the how the Texas Property Code, the Texas Business Organizations Code, and the Texas Constitution make it possible for individuals and businesses to shield income and assets (particularly equity in real property). Together, these are the most favorable asset protection laws in the United States. To do better, one would need to step into the realm of offshore entities.
Individual Texans may claim the extensive protections afforded by the Texas Constitution and the Property Code. The availability of these protections makes Texas uniquely suited to asset protection. They are always available and generally do not require any special action, although a certain amount of planning and re-arranging of assets is advisable in order to maximize these protections – especially the conversion of non-exempt items into exempt items if one anticipates being sued.
The next level of protection is achieved by forming a Texas series limited liability company which accomplishes two critical goals: it creates a liability shield for the protection of member-owners; and it creates individual “series” or compartments which, when properly implemented, insulate each series from the liabilities associated with the other series. (details below).
When properly structured, an asset protection strategy will deter the filing and pursuit of lawsuits and also make it difficult to collect on a judgment.
Pre-Suit Asset Protection Strategies
Asset protection strategies fall into two groups – strategies implemented in advance of collection action and suit; and strategies that can be put into effect afterward. It is by far preferable to plan ahead and be prepared, since the range of pre-suit alternatives is much greater. After suit is filed, depending on the circumstances, options are reduced by laws relating to “fraudulent transfers” – i.e., moving assets around to defeat the legitimate claims of creditors. After suit is filed, the Texas defendant may be limited to converting assets to homestead-exempt items (one’s primary residence, cars, etc.), moving depository accounts into cash, and pre-paying certain key items (taxes, attorney’s fees, etc.).
The basic in advance asset protection program that adequately protects most people is:
- establish a Texas Series LLC for investments and businesses;
- form a shell management company (LLC) for dealings with the public;
- file assumed name certificates (DBA’s) for the two LLC’s;
- transfer properties held in personal names to series LLC;
- reduce debt on homestead, personal vehicles, and other exempt items; and
- form a living trust for the homestead to avoid probate and prepare a pour-over will.
Remember: “Failing to plan is planning to fail.”
Anonymity
Anonymity is an important aspect of asset protection. An LLC can provide a certain measure of anonymity depending on the amount of information that is furnished to the Secretary of State when the initial documents (the “Certificate of Formation”) is filed. Additional anonymity tools include use of land trusts, which should not disclose any personal names in the public records (and that includes the name of the trustee); use of assumed name certificates or “DBA’s;” and use of an attorney as registered agent or trustee who has the power to invoke the attorney-client privilege. The goal should be to achieve maximum anonymity combined with the liability barrier created by the series LLC. All of this creates legal and practical obstacles to a potential plaintiff.
A word about the company’s registered address: some people go to the trouble of forming an LLC but then list their home as the registered address. This hardly enhances anonymity, nor does it prevent a constable from knocking at your door at 5:30 a.m. to serve a lawsuit. Either use your office address, if you have a physical office; use your attorney as registered agent of the company ($250 annual charge); or go to a UPS store and obtain a box with a street address and suite number (so the Secretary of State will not reject your filing, since post office boxes are not permitted for the registered agent address). Tenants, vendors, contractors, and the public at large should never have your homestead address.
Post-Suit Strategies
Once litigation is commenced, your actions are subject to scrutiny by the plaintiff and his attorney. This is so because the discovery process (including interrogatories and requests for production of documents) is available to creditors to inquire into your transactions, and the scope of this process can be wide indeed. Failure to fully respond is grounds for contempt – although “fully respond” should never be interpreted as supplying any more information than is absolutely necessary. Generally speaking, creditors should have only the information that you give them.
The most pernicious discovery occurs post-judgment, since at that time creditors can compel disclosure of sources of income and the location of assets – even assets that are legally exempt and cannot be touched. This can be a headache since creditors may nonetheless go after the exempt assets, forcing a debtor to seek protection from the court. It is important that your attorney understand how to make a creditor fight vigorously for every bit of information that is provided in responses to discovery.
The usefulness of post-collection asset protection strategies are also limited by fraudulent transfer rules that allow courts to reach back up to two years (these rules apply in many foreign jurisdictions as well). Fraudulent transfers are generally indicated by so-called “badges of fraud,” including transfers to a family member; whether or not suit was threatened before it was filed; whether the transfer was of substantially all of the person’s assets; whether assets have been removed, undisclosed, or concealed; whether there was equivalent consideration for the transfer; and whether or not, after the transfer, the transferor became insolvent as a result (e.g., made his cash disappear).
Creation of a Series LLC
Texas has excellent LLC laws. Now that Texas offers a series LLC (new in 2009) the incentive for Texans to form a company in Delaware, Nevada, or some other state is eliminated for most persons. Also, forming an out-of-state company requires designation of a registered agent in that state (who serves for a fee) and expensive filing fees to register your “foreign company” in Texas.
An LLC provides a true liability barrier (so long as the company is maintained by minimal record-keeping, payment of taxes, etc.) along with limited anonymity. Anonymity is limited because information on the organizer, the initial member(s), and the registered agent of an LLC is contained in the Certificate of Formation that is filed with the Secretary of State. It is therefore public record. One can achieve maximum initial anonymity by having your attorney act as organizer, managing member, and registered agent – and then, afterward, privately transfer the membership interest to you (an unreported transaction). This way, your name does not appear on the Certificate of Formation and you are not in the system – at least for the first year or so of operations.
The Company Agreement
The company agreement is the heart of the company. It is critical that it discourage creditors from attempting to seek control of your membership interest or the membership interest of a fellow member. Provisions should be included in the company agreement to the effect that any creditor succeeding to a membership interest by means of assignment, collection or execution on a judgment will not be able to vote that interest; not be able to serve as a manager or officer; not be able to direct that assets of the company be sold; and not be able to alter or reduce the company’s ability to do business. It is not enough to rely on a membership interest being exempt from a so-called “charging order.” The object is to make your membership interest (or the membership interest of any of your partners) effectively worthless to a creditor, so that the creditor passes it by in any attempt at collection. Remember: asset protection is about deterrence.
LLC’s are typically capitalized by a combination of equity (monetary contribution) and debt (loans to the company). Your attorney should help you sort this out.
Operation of an LLC
One of the first things you will want to do is transfer the property you wish to protect into the company. In the case of real estate, this is done by means of a general or special warranty deed. Are deed of trust due-on-sale clauses a problem? Almost never, in spite of what your lender may tell you. See our companion article, Due-on-Sale Clauses in Texas.
Tenants and creditors should be instructed that they are doing business with the LLC and making payments to the LLC. There is an old rule of thumb that people tend to sue the person or entity they write checks to . . . so ideally, your personal name, address, or social security number should never appear anywhere on any paperwork or documents executed with third parties.
Once a company is formed, it must be maintained. There are minimum formalities that must be observed in order to order to preserve the LLC’s liability barrier. These include issuing membership shares; holding annual meetings; obtaining a TIN number and filing tax returns; having a company bank account; and the like. Failure to do this sort of routine maintenance is a common mistake. It can be fatal to your asset protection plan.
Role of Trusts
Trusts come in all shapes and sizes – there is no “standard form.” Trusts are useful because they can provide:
- anonymity, since underlying ownership is not revealed in the deed of property into the trust;
- ease of transferability, since beneficial interests can be privately assigned without necessity for recording a deed or other instrument; and
- probate avoidance, since the beneficiaries acquire their interest automatically without the intervention of a court.
Note that a trust does not have a liability barrier as does an LLC – so trusts standing alone are insufficient for asset protection.
How do an LLC and trust work together? Once the LLC is established, it can choose to transfer its properties to an “anonymity trust” which indicates nothing of record about real underlying ownership. Example: title to property is held in the name of “Main Street Trust.” It is a myth that one must even name the trustee in the deed, since county clerks gladly record deeds such deeds. Anyone seeking to know who the principals are and what assets they may have has their work cut out for them.
Note that under Texas law one must actually create a written trust agreement for this strategy to work. Also, a title company will want to see a copy of the trust before transferring title out of the trust to a new buyer. Additionally, courts are likely to ignore the existence of an alleged trust that has no written agreement behind it.
“Investor trusts” (our term) are trusts that (1) facilitate the acquisition of property anonymously (the “entry trust” – our term) using an assignment of beneficial interest; or (2) provide the capability of anonymously closing into a subprime buyer without lender approval and without compliance with the 2005 lease-option restrictions contained in Sec. 5.069 of the Property Code (the “exist trust” – our term again). This is possible because beneficial interests in a trust are personal property and not real property.
The living trust (or inter vivos trust) is a valuable probate-avoidance device for the homestead and should be considered by everyone as part of the overall asset protection structure. Anyone who has probated an estate is familiar with the procedural nightmare that occurs when dealing with attorneys and judges who will happily reduce the estate “castle” to rubble.
Do not be deceived into purchasing so-called standard trusts off the internet. Texas has very particular trust laws. The Texas Trust Act is part of the Property Code. Consult a Texas attorney experienced in trusts if you want to be certain that your trust will be valid in Texas.
More information is available in our companion article, Land Trusts in Texas. Trusts of this type should be distinguished from popular probate-avoidance trusts, which are addressed in our article Living Trusts in Texas
Management/Operating Companies
A real estate investor should consider setting up a management or operating company that is unaffiliated with the asset-holding LLC and which will serve as the front line of defense against tenants, creditors, and plaintiff’s attorneys. This entity should be an LLC (a traditional LLC is fine) or corporation that is basically a shell or a pass-through for funds. Many people already have an LLC or corporation and wonder what to do with it now that we have a series LLC available in Texas. The management company is an excellent function for this entity.
The management company should own no substantial amount of real or personal property – it should lease everything, including vehicles. It should also hire and pay employees. The public should do business with the management company and never even be aware of true underlying ownership or the location of assets – which are of course held in the series LLC.
Why this structure? In addition to its management duties, the role of the management company is to serve as a target that is deliberately put “out there” to draw fire away from the owners and their assets. If anyone obtains a judgment against the management company, it will be uncollectible. The next step is to form another management company and continue with business.
Attorney-Client Privilege
Use of an attorney as registered agent for the LLC or as trustee of a land trust adds yet additional layers of protection – first, anonymity, and second, the attorney-client privilege. In the case of an LLC, the attorney can organize the company, list his name as the initial member and registered agent, and then privately assign his membership interest to the client. Result? The client’s name does not appear in public records.
In the case of a trust, the attorney can be named as trustee but then appoints the investor’s LLC as managing agent and attorney-in-fact to conduct day-to-day operations.
In both cases, expect that the attorney will charge extra for the services and risks involved.
Offshore Entities
An additional option is to create an offshore entity (Panama or the Cayman Islands are our preferred jurisdictions) which will own the Texas LLC or operate in tandem with it. This structure is entirely legal and provides superior asset protection. It makes assets very difficult and expensive to get to – usually requiring obtaining a U.S. judgment first, then persuading a foreign jurisdiction to honor that judgment and execute upon it, which can take years and tens of thousands of dollars out of a creditor’s pocket. Offshore entities also allow flexibility in holding some of your assets in currencies other than the dollar.
Note that asset protection is an entirely separate concept from tax avoidance. All U.S. citizens must pay tax on income, wherever and however earned. Use of an offshore LLC or any other entity to cheat the IRS invites trouble of the worst kind, particularly in light of the 2009 settlement in the UBS case in which the names of holders of thousands of Swiss bank accounts (formerly sacred) were turned over to the U.S. government. One can pay one’s taxes and still achieve substantial asset protection.
The Role of Insurance
It is often asked if obtaining liability insurance alone is sufficient. The answer is a resounding “No.” Insurance is a passive measure. It is possible to be far more proactive. All legal experts recommend a sensible mix of insurance and asset protection. The principal reason is that insurance companies are in the business of collecting premiums and denying claims – thus every effort will be made by the company to exclude or avoid coverage in your case (particularly if the plaintiff alleges fraud, which is never covered). It may then become necessary to sue the insurance company.
Also, even if the insurer concedes coverage, extravagant claims made in lawsuits nowdays may (and often do) exceed available limits. Moreover, the existence of a sizable policy and umbrella may in and of itself encourage a lawsuit because it will be perceived by the plaintiff’s attorney as a tempting target! Nonetheless, having adequate insurance is a necessary evil.
Bankruptcy
Bankruptcy – Chapter 7 in particular - is the “nuclear” option in asset protection. Even so, rules against fraudulent transfers (called “preferences” in the Bankruptcy Code) apply in this area as well. Also, false information in a bankruptcy petition may be investigated by the FBI; and of course bankruptcy does not discharge taxes (although the IRS may be more likely to work with you on a payment plan), child support obligations, student loans, and any items that a debtor fails to list on the petition.
The Bankruptcy Code allows a debtor to choose between the federal exemptions (ie., list of exempt assets) or the state ones – and in Texas we always choose the state exemptions since they are so favorable. These are summarized later in this article.
By and large, filing bankruptcy is an admission that your previous asset protection strategies have failed. The bankruptcy trustee and the court assume control of your life. It is a last resort. This office does not handle bankruptcy – we recommend obtaining a board-certified lawyer in the field.
Lifestyle Considerations
Your lifestyle should be consistent with maintaining an effective asset protection strategy. In addition to all the other suggestions contained in this article relating to anonymity, creating a liability shield, maximizing protections under the Texas homestead laws, and the like, you should:
(1) avoid conspicuous consumption - living a notch below your means makes a less appealing target for plaintiffs and their attorneys;
(2) avoid personally guaranteeing any business debt or co-signing on others’ notes;
(3) carry health and term life insurance on yourself as well as “key man” term life insurance on your business partners;
(4) avoid all forms of debt that do not result in an income stream - this includes nearly all consumer debt which, after the thrill of that new Porsche dissipates, merely serves to keep you up at night;
(5) reduce all business arrangements - including those with family and friends (especially those with family and friends) - to a written agreement that contains an “exit strategy,” specifically including buy-sell provisions;
(6) diversify assets and investments;
(7) put approximately 10-15% of your assets into gold, cash, and other “doomsday” assets - the worst case scenario could actually happen. Own a gun.
Other Domestic Asset Protection Devices
There are many other asset protection devices and entities that are beyond the scope of this introductory article. Included among them are:
Family Limited Partnerships
There is much discussion about family limited partnerships (FLP’s) in states other than Texas. For Texas asset protection, this author prefers LLC’s and/or trusts. Texas FLP’s (like LLC’s) must be filed with the state and pertinent ownership information is revealed; also an in-state registered agent must be designated to receive service of process if the partnership is sued. So why not just form an LLC (especially a series LLC if assets are in real estate) and then move title to assets into a land trust? The result is superior liability protection and anonymity. Another drawback of the FLP is its concept of a “friendly lien” on the homestead, which is not workable in Texas.
Limited Partnerships with an LLC General Partner
These vehicles are more complex and expensive, usually used in larger commercial transactions, and are beyond the scope of these comments.
Homestead Protections for Individuals in Texas
Texas offers unique homestead protections for individuals that should be integrated into any asset protection plan. These protections are contained in Art. XVI, Sec. 50 of the Texas Constitution and in Chapters 41 and 42 of the Texas Property Code. They apply to both income and assets, and they have long made Texas a haven for debtors. In other states, a judgment can be put you on the street, but not in Texas. If a lawsuit is anticipated, or if a judgment creditor is expected to attempt collection, then it is wise to review and maximize these protections.
Sec. 28 of the Constitution prohibits garnishment of wages, which protects the income of a person who receives a salary or wages. As to assets, the homestead of a family or single adult is protected from forced sale for purposes of paying debts and judgments except in cases of purchase money, ad valorem taxes, owelty of partition (divorce), home improvement loans, home equity loans, and reverse mortgages. No matter how much the home is worth, an ordinary judgment creditor cannot force its sale. An attempt by such a creditor to place or enforce a lien against the homestead can be defeated using the procedure in Texas Property Code Sec. 53.160. See our companion article, Lien Removal in Texas.
The Property Code further provides in Sec. 41.001(5)(c) that “The homestead claimant’s proceeds of a sale of a homestead are not subject to seizure for a creditor’s claim for six months after the date of sale.” This expressly permits homestead protections to be rolled over from one homestead to the next, notwithstanding the preference on the part of title companies to collect judgments upon sale of the homestead. Taylor v. Mosty Bros. Nursery, Inc., 777 S.W.2d 568, 570 (Tex.App. - San Antonio 1989, no writ).
The Texas Property Code goes into more detail, specifically listing the amount and types of other exempt property, including a vehicle for each licensed driver in the household; home furnishings; and the debtor’s IRA or 401(k). In keeping with Texas’ frontier spirit, you can even keep two horses if you wish.
The Texas Constitution and the Property Code provide an excellent opportunity for individuals (not corporations, LLC’s, or partnerships) to engage in asset protection. Essentially, this means converting non-exempt assets (cash, for instance, or investment real estate) into exempt assets. As an example, one might consider paying off the homestead or the primary vehicles. The conversion process can be tricky. It is best accomplished with the guidance of an attorney knowledgeable in this field.
Texas homestead laws are liberally construed by the courts. “Indeed, a court must uphold and enforce the Texas homestead laws even though in so doing the court might unwittingly assist a dishonest debtor in wrongfully defeating his creditor.” Painewebber, Inc. V. Murray, 260 B.R. 815, 822 (E.D.Tex.2001).
Although there is a conceptual overlap, the homestead protection laws should not be confused with the homestead tax exemption as reflected on the rolls of an appraisal district, which is designed to lower ad valorem taxes on homeowner-occupied property.
Our companion article, Homestead Protections in Texas, offers more detail on this subject.
LegalZoom-Style Internet Services
Internet services allegedly provide “self-help legal services at your specific direction.” This is internet huckstering. All LLC’s are not created equal. Your goal should not be to merely “set up an LLC.” Your goal should be to establish a Texas Series LLC that includes sophisticated asset protection provisions. At best, internet services provide a “plain vanilla” company with no bells or whistles; there is no focused effort to maximize asset protection.
Here is what such services do not provide:
NO comprehensive advice on how to structure your business and investments so as to achieve an overall asset protection plan
NO attorney to serve as organizer, initial member, and/or registered agent in order to maximize your anonymity
NO sophisticated company agreement that deters creditors from taking control of your company
NO advice on how to move property into the LLC after it is formed
NO advice on how to use the LLC in conjunction with a land trust
NO advice on how to set up and arrange the LLC’s finances, including setting up LLC accounts, injecting capital, and/or loaning money to the LLC
NO advice on how to maintain the LLC liability barrier to prevent a plaintiff from “piercing the corporate veil”
NO free follow-up questions after the LLC is formed
Additionally, the documents provided by such services are simplistic and barely above the level of junk. This office spends a fair percentage of its time cleaning up the inadequacies in companies formed this way.
Conclusion: Asset Protection in the Real World
Absolute, “bulletproof” asset protection is not achievable in the real world – even in Texas - in spite of claims made by internet and seminar “gurus” who have never spent time in a real court of law in front of a real judge. However, one can approach this ideal by using the correct structure. Asset protection is ultimately about deterrence of lawsuits and exhaustion of your opponent’s determination and resources. Deterrence has real value considering the number of frivolous and contingency-fee lawsuits that are filed each year in the U.S. If you can make it difficult to find your assets and make it unacceptably expensive and time-consuming for a plaintiff and his attorney to reach them, then your asset protection plan has done its job. Every dollar of cost that is imposed on a potential plaintiff or his attorney makes your income and assets incrementally more secure and makes it less likely that you will have to endure the living nightmare of a lawsuit.
Attached is checklist of information that will be needed from the client in order to form a Texas Series LLC.
DISCLAIMER
Information in this article is proved for general informational and educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences. Consult your tax advisor as well. This firm does not represent you unless and until it is expressly retained in writing to do so.
THIS DOCUMENT IS NOT INTENDED TO BE USED, NOR CAN IT BE RELIED UPON, BY ANY TAXPAYER FOR THE PURPOSE OF AVOIDING PENALTIES IMPOSED UNDER UNITED STATE FEDERAL TAX LAWS. THIS DOCUMENT DOES NOT CONSTITUTE DOES NOT CONSTITUTE A TAX OPINION OR OTHER ADVICE TO WHICH CIRCULAR 230 IS RELATED.
Copyright © 2010 by David J. Willis. All rights reserved. David J. Willis is board certified in both residential and commercial real estate law by the Texas Board of Legal Specialization. More information is available at his web site, http://www.LoneStarLandLaw.com.
Note on Legal Fees and Costs: Our fees for forming a Texas Series LLC (subject to change) are $750 plus costs ($325 filing fee, $80 for the corporate book, $10 ground shipping), which include pre-formation strategies, extensive documentation, and follow-up legal advice. Optional add-on fees are $175 plus filing fees (usually $28) to deed a property into the new company; $250 annually for the attorney to serve as registered agent; and $550 (one time) if the attorney acts as organizer and managing member so that your name does not initially appear in public records. Important: an attorney will not do this if there is any reason to believe that it is being done for purposes of fraud. If you are seeking to form an offshore entity, expect fees to be in the $2,500 range. Fees for creation of trusts range from $550 to $750, depending on the type and complexity of the trust.
LLC FORMATION CHECKLIST
For more information on limited liability companies, read our articles on the subject. Go to www.TexasSeriesLLC.com or www.LoneStarLandLaw.com.
Costs and Fees:
Legal fees for series LLC, including follow-up questions $750
Filing fee to Secretary of State (including expedited handling fee) 325
Company minute book, membership certificates, and seal (this is
the black vinyl version – for red and black leatherette add $40) 80
Shipping (UPS ground – for 2 day air add $20) 10
________
TOTAL COST FOR SERIES LLC $ 1,165
If you are forming a traditional (non-series) LLC, the legal fee is $650.
These fees must be paid in advance. Go to the “Make Payment” button (under “Contact Us”) on the website to use a credit or debit card. If payment is made by check, it should be made payable to David Willis and overnighted to our dedicated registered agent address: 330 Rayford Rd., Suite 401, The Woodlands, TX 77386.
The attorney will be listed on the formation documents as the organizer (not the registered agent unless you request and pay the $250 fee – see below), since the certificate of formation must be signed by an “authorized officer.”
The attorney is also available to serve as registered agent for an annual fee of $250. Another optional add-on fee is for listing the attorney only in the formation documents with the Secretary of State – as organizer, initial member, and registered agent – so that your name does not appear at all in these initial public documents. After formation, the LLC membership interest is privately assigned to you. This “anonymity fee” is $550.
Another add-on is for a deed of real property into the company or into a specific series of the company. THIS REQUIRES A PROPERLY DRAWN DEED. IT IS NOT AUTOMATIC. The fee is $175 per deed plus the county clerk’s per page recording fees (usually $28).
Company Name and Address:
Go to (512) 463-5555 (the Texas Secretary of State’s office) to check name availability - or go to www.sos.state.tx.us. All the popular, easy names are taken, so you will need to be creative. You can always get a “DBA” certificate (filed with the Secretary of State or in your local county records) in your preferred name.
On the subject of the company address: This needs to be a physical address, not a post office box. Note that UPS and other companies have mail centers where you can get a physical address.
______________________________________________________________________________
1. What is the name you have selected for the company? A name may not be “deceptively similar” to the name of an existing company.
2. Have you checked with the Secretary of State to make sure this name is available? Their phone number is (512) 463-5555.
3. Who are going to be the initial members of the Company and what are their respective percentage interests?
NAME PERCENTAGE INTEREST
4. What are the contributions of each member to the company? Complete this section if
members are putting property into the company or making a monetary (capital)
contribution.
NAME CONTRIBUTION
Services, formation costs, and $_______________
Services, formation costs, and $_______________
Services, formation costs, and $_______________
5. Note that companies are often funded by a combination of equity (capital) and debt
(ie., loans to the company). If you have special requirements in this area, what are they?
_____ Not applicable to us. We are not making any loans to the company.
_____ Yes, we will be both injecting capital and making one or more loans to the
company as follows: __________________________________________
Note: loans to the company are evidenced by a promissory note (extra fee of $75).
6. What is the purpose of the company?
______ operating a single business
______ holding a single investment property
______ holding multiple investment properties
______ other: _________________________________________________________
7. What type of LLC do you wish to form?
_______ series LLC with separate “series” for separate properties or businesses
_______ traditional (non-series) LLC suitable for a single property or business
8. Series LLC Property: If you are forming a series LLC, which property or businesses do you want to put in each series?
Example: Series A: rental property at 123 Oak St., Houston, TX 77057
Series B: my general contracting business
Series A: _____________________________________________________________
Series B: _____________________________________________________________
Series C: _____________________________________________________________
Note: conveyance of property or business into a series is not automatic as a result of forming the company. It must be accomplished by a separately executed warranty deed or bill of sale which is not included in LLC formation fees.
9. As to managing members:
______ one managing member - name: ________________________________
______ co-managing members (a common arrangement for husbands and wives)
name: ________________________________________________
name: ________________________________________________
______ we will have a separate managing member for each series/property.
Details: __________________________________________________
_______ we will be hiring a paid manager who is not a member of the company.
10. Will you also be selecting officers (President, Secretary, etc.)? This is entirely optional. The company can be managed by its managing member(s) without naming officers.
________ No officers
________ Yes, the officers will be:
President: __________________________________________________
Vice-President: _____________________________________________
Secretary: _________________________________________________
Treasurer: _________________________________________________
11. Who will be the registered agent and what is the registered address? The registered agent receives official mail from the Secretary of State and the Texas Comptroller. This is also the person who is served with process by the constable if the company is sued. Most often the registered agent is an individual; but it can be another company. If the attorney serves in this capacity, there is an extra fee of $250 annually. The registered agent can be easily changed by filing a form with a nominal fee.
Name: _______________________________________________________________
Address: _____________________________________________________________
Note: this must be a physical address, not a PO box. For anonymity, it is recommended that the home address not be used. UPS stores with a street/suite address are a suggestion.
12. Who will be empowered to sign Membership Certificates (check one)?
________ the sole managing member
________ any managing member
________ both managing members (if there are co-managing members)
________ president (if officers are named)
________ secretary (if officers are named)
________ other: _______________________________________________________
13. Who will be empowered to sign company checks (check one)?
________ any managing member
________ both managing members
________ president (if officers are named)
________ secretary (if officers are named)
________ other: __________________________________
14. If you intend that the company will operate under a “DBA” (assumed name other than the official name at the secretary of state’s office), what is that assumed name? This is not required, but if you already know what these DBA name(s) are, then list here. DBA’s can be statewide or county-wide; county-wide is suggested. The DBA must be filed with the county clerk where the company does business in order to make this effective.
15. After forming the company, will you need to deed any real estate into it? If so, please give details. Note that the fee for deeds is $175 plus recording costs (usually $28). We will need a copy of your existing deed to prepare a deed into the company.
_______ I am attaching a copy of the deed(s) to this checklist. Please go ahead and prepare one or more deeds (add $175 per deed)
_______ I am not deeding properties into the LLC yet – maybe later
16. Company book and shipping
_______ the black vinyl notebook is OK
_______ I prefer the red and black leatherette (add $40)
_______ UPS ground shipping is OK
_______ I prefer 2-day air (add $20)
17. Do you have any special requirements or instructions?
Person completing this form:
__________________________________________
Name
__________________________________________
Address
__________________________________________
Email
__________________________________________
Phone
This completed form may be emailed to LoneStarLandLaw@aol.com or may be faxed to (832) 201-5321.
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