LLC Formation in Texas

Liability Shield

In Texas, a limited liability company is formed and filed pursuant to Title 3 of the Business Organizations Code (the “BOC,” Sections 101.001 et seq.). It is formed by means of a certificate of formation submitted to the secretary of state along with a $300 filing fee. LLCs comprise the majority of registered-entity filings at the secretary of state’s office and are the preferred method of doing business for smaller firms generally and for real estate investors in particular.

The defining characteristic of an LLC is the liability shield it provides for its members. If the company is sued it is generally true (absent actual fraud) that members and managers are not personally liable for satisfying a judgment against the LLC.

The concept of a liability shield is important. Only registered entities (LLCs, corporations, and limited partnerships) have a liability shield. Other forms of business organization (sole proprietorships, general partnerships, and trusts) do not. For example, neither a general partnership nor a trust agreement is recorded or required to be filed anywhere, so they do not fall into the category of registered entities. Participants in these other types of business organizations are personally exposed to liability on a judgment.

WHY FORM AN LLC?

LLCs and Asset Protection

Forming an LLC is integral to asset protection, especially for a real estate investor. Although there is no such thing as a bulletproof plan to avoid personal liability or protect assets, one’s goal should be to get as close as possible. Forming an LLC is an important step in that direction.

Asset protection may be viewed as being similar to a cross-country horse race: the more fences a plaintiff and his attorney have to jump, and the more effort and money they have to spend in order to reach your personal assets, the better. One way or another, plaintiffs have to pay their lawyers, and that means either cash or contingent fee—and lawyers may hesitate to accept a case on a contingent fee if they know they will have to penetrate a bona fide LLC.

Plaintiffs’ lawyers look for deep pockets and hard assets wherever they can be found. It has been reported that a new lawsuit is filed every 1.3 seconds. Courts award huge damages for such things as serving coffee that is too hot. In this legal environment, asset protection is a serious matter and an LLC is an excellent tool for achieving it.

Reasons to Form an LLC

Reasons for forming an LLC include: (1) acquiring a liability shield; (2) organizing and managing one or more businesses separately from one’s personal affairs; (3) obtaining certain tax benefits including pass-through taxation; (4) providing a legal mechanism for different persons to own percentages of the enterprise; (5) achieving a measure of distance and anonymity from the public; (6) credibility and professionalism in marketing and transactions; and (7) in the case of a series company, compartmentalization and insulation of assets and liabilities within separate series. This last item provides significant benefits to investors who need a holding company to own multiple properties. More on series LLCs below.

Separation of Business from Personal Affairs

An LLC is a distinct legal entity—a legal person—with its own rights, duties, and remedies. It has its own employee identification number (EIN or TIN) although the LLC’s tax return may be combined with the members’ personal return. However, an LLC requires continued respect for its independence in order to maintain its separate status. It may be your company, but it should still be treated at arms’ length for legal and accounting purposes. Failing to do this is a common mistake of novice real estate investors.

Running business income and expenses through one’s personal account may not be illegal, but it can complicate your defense if you are sued. It will be alleged that you “commingled funds” or “skimmed profits” or something similar. Such actions may have been both harmless and legal under the circumstances, but they can still arouse suspicion on the part of the judge and jury.

Why risk it? The clear alternative is to form an LLC with its own operating account in which income and related expenses are shown and separately coded. If suit is filed that involves the LLC’s finances, a plaintiff will demand an accounting and production of bank statements—this is a given as part of the discovery phase of the lawsuit. Be prepared to show a sound business structure that functions with integrity and is not mixed with your personal activities and assets. This will go a long way toward showing the court that you are one of the good guys.

LLCs VERSUS OTHER FORMS OF BUSINESS ORGANIZATION

LLCs Versus Corporations

For-profit corporations are governed by Chapter 21of the Business Organizations Code (BOC Section 21.002 et seq.). A common client question is whether to form a corporation or an LLC. While the corporate format is still available, it has been declining in use by smaller businesses for at least twenty years. Filings at the secretary of state’s office confirm this trend.

A corporation is generally considered to be a more rigid and rule-bound form of organization than an LLC. A corporation has shareholders (instead of members), officers (instead of managers), and a board of directors (usually dispensed with in an LLC). Corporate notions of shareholders’ rights, derivative actions against management, and duties of directors all make a corporation more suitable for a larger enterprise that is publicly traded and accountable to its shareholders.

The BOC offers a more informal corporate option (a close corporation) available under Section 101.463, but this is available only so long as the corporation has fewer than 35 shareholders and the LLC is not listed on a national securities exchange or regularly quoted in the over-the-counter market. Even so, the prevailing view is that an LLC is a more flexible and informal entity, making it suitable for smaller and family-based businesses.

It is often said that an LLC combines the best features of a corporation (an effective liability shield) and a partnership (informal operation among a small number of owners). Unless there are complex circumstances or one intends to take a company public in the future, there is usually no good reason for a real estate investor to form a corporation instead of an LLC.

Charging Order Protection for LLCs

When it comes to post-judgment asset protection, LLCs have what is known as charging order protection. The creditor acquired what is essentially a lien on LLC distributions, if and when they occur, but cannot force the liquidation of company assets to satisfy a judgment or seize a membership interest (BOC Sec. 101.112).

By contrast, corporate stock may be seized by a creditor and sold at public auction. Stock in a corporation is considered in Texas to be non-exempt personal property (Bus. Orgs. Code Sec. 21.801) that is subject to levy—meaning a judgment creditor can take it. Tex. R. Civ. P. 641, Bus. & Com. Code Sec. 8.112; garnishment, Tex. R. Civ. P. 669; or turnover, Civ. Prac. & Rem. Code Sec. 31.002.

LLCs Versus General Partnerships

An LLC is different from a general partnership in that it is a distinct free-standing registered legal entity with a statutory liability barrier protecting its members’ personal assets. General partnerships have none of these characteristics. A Houston appeals court provides a good explanation of this concept: “An LLC does not fall within the ordinary meaning of ‘partnership’ even if the LLC elects to be treated as a partnership for federal-income-tax and state-franchise-tax purposes. Though an LLC may have some characteristics similar to a partnership in calculating its tax liability, an LLC also has characteristics similar to a corporation regarding civil liability. An LLC is a separate type of . . . entity and is not included in the ordinary meaning of the word ‘partnership.’” SJ Med. Ctr., L.L.C. v. Estahbanati, 418 S.W.3d 867, 873 (Tex.App.—Houston [14th Dist.] 2013, no pet.). In other words, although members of an LLC may loosely refer to themselves as partners and conduct themselves as such, that terminology is not technically correct in the legal sense. LLC members are not partners.

There is another key difference between LLCs and general partnerships: LLC members do not have a direct ownership interest in the company’s property as is the case with partners. “An LLC is considered a separate legal entity from its members. And . . . [Business Organizations Code Section 101.106] provides that a member of [an LLC] does not have an interest in any specific property of the company.” Spates v. Office of Atty. Gen., 485 S.W.3d 546, 550-51 (Tex.App.—Houston [14th Dist.] 2016, no pet.). That includes real estate. An LLC membership is personal property. It does not encompass any legal interest (direct or indirect) in real property that may be owned by the LLC.

LLCs Versus Limited Partnerships

Like LLCs and corporations, limited partnerships are registered entities with a liability shield. They file a certificate of formation with the secretary of state and pay a filing fee. The general partner in a limited partnership (typically a shell entity, whether an LLC or corporation) is supposed to be the only person running things. The general partner has sole full liability. The others—the limited partners—are at risk only for the amount of their respective contributions to the limited partnership. However, over-active limited partners who meddle in management can lose this protection. “Personal liability attaches to a limited partner when he takes part in the control and management of the business.” Thompson v. Flintrock Feeders, Ltd., No. 2:09-CV-0010-J, 2010 WL 11561929 (N.D. Tex. May 10, 2010). For more detail on the law governing partnerships see BOC Chapter 152, Section 152.001 et seq.

Limited partnerships are more complex structures than LLCs. They are commonly used for commercial transactions involving multiple investors—acquiring shopping centers, apartment buildings, and the like—rather than residential properties. A limited partnership is an excellent investment vehicle in the right circumstances.

THE LLC FORMATION PROCESS

Name Availability

In forming a Texas LLC, one of the first things to consider is the company name, and this means first determining if one’s name of choice is available. The easy names tend to be taken so a measure of creativity may be required. The old standard was that a proposed LLC name could not be deceptively similar to an existing entity’s name, presumably to avoid confusing the public. The current requirement is that the name of a new entity must be distinguishable from the names of other entities in the Secretary of State’s database—a loosening of the rules to more effectively compete with other pro-business jurisdictions.

If a preferred name is unavailable, this should not be cause for distress since the better strategy for asset protection purposes is often to use a generic name for the LLC plus an assumed name for day-to-day company operations. More on assumed names below.

Core LLC Documents

The LLC formation process begins with a certificate of formation and ends with a certificate of filing which is the approval document issued by the secretary of state. Some states (like Nevada) require that a business license must also be purchased. Texas does not. Unless it falls within a specifically regulated category, a Texas LLC is ready to do business as soon as it receives its certificate of filing.

Experienced business lawyers are not satisfied with using the fill-in-the-blank forms for LLC formation—even forms promulgated by the secretary of state. Basic forms accomplish only the bare minimum in order to get a file number and get an LLC approved. Failure to include professional-grade asset protection provisions in the formation documents is a missed opportunity.

Core LLC documents should include a customized certificate of formation that establishes the company; the certificate of filing issued by the secretary of state with the file date and file number; a proper company agreement (not a minimalist template) also called an operating agreement; an organizational meeting of members to approve a registered agent, elect managers, and establish other basics; a signed consent by the registered agent; membership certificates signed and issued in the appropriate percentages; and lastly, deeds and bills of sale conveying assets into the company. Correctly done, the foregoing are the documents necessary to get the LLC properly up and running and ready to do business. Company documents are traditionally organized and kept in a company book with labeled tabs.

Since the goal of forming an LLC is to achieve maximum asset protection, advanced and customized provisions should be included in company documentation beginning at the formation stage and continuing throughout the process.

Governing Persons

An LLC is managed by its governing authority which consists of governing persons who act according to the LLCs governing documents. The job of the governing authority is to “direct the management of the business and affairs of the company and exercise or authorize the exercise of the powers of the company as provided by: (1) the company agreement; and (2) provisions” of the Business Organizations Code applicable to LLCs (Bus. Orgs. Code Sec. 101.252).

The governing authority of an LLC usually consists of elected managers, although it is possible to form an LLC without managers—in which case the LLC is considered to be managed directly by the members (member-managed). While member management may have a certain egalitarian appeal, issues can arise.

Manager-Managed Versus Member-Managed LLCs

The certificate of formation for the LLC must state whether the LLC will be manager-managed or member-managed. The better choice for real estate investors is almost always to choose a manager-managed format.

There are a number of practical reasons why a manager-managed LLC is usually superior in the real estate context. One reason involves the issue of authority. If the LLC is managed by its members, then any member may contractually bind the company—even if that member owns only a 1% interest—since each member in a member-managed company is considered to have full agency authority to act on behalf of the LLC (BOC Sec. 101.254). In practice, this can present problems, since third parties are entitled to reasonable reliance upon what a member says and does—at least for purposes of ordinary company business (and even if the company agreement provides otherwise). It is possible to envision a scenario where a rogue minority member binds the LLC to a transaction for which proper internal approval was not obtained.

A second practical reason to favor the manager-managed format is that it is more readily accepted in business and real estate transactions. In the real world, lenders and title companies prefer dealing with manager-managed LLCs. They want the signature of an actual manager on the documents. A lender may even insist that a borrowing LLC convert to manager-managed (requiring a certificate of amendment to be filed with the secretary of state) before it extends a loan.

Texas requires that the managers and officers of a company (its governing persons) be a matter of public record, both in the certificate of formation and for purposes of annual reporting in the comptroller’s Public Information Report (or PIR). However, the certificate of formation does not require inclusion of ownership information (i.e., the names of members). To the extent that some members of a new LLC wish to remain in the background for the time being (at least until the first PIR is filed—see below), then a manager-managed LLC is a better choice for this reason as well.

Note that managers and officers of an LLC are fiduciaries, meaning they have an obligation to act ethically with respect to the company and its members. Super Starr Int’l, LLC v. Fresh Tex Produce, LLC, 531 S.W.3d 829 (Tex. App.—Corpus Christi 2017, no pet.). Breach of fiduciary duty (usually involving an alleged misappropriation of funds or assets) is a common cause of action in litigation involving the break-up of LLCs.

Classes of Membership

It is often a sound approach to establish two classes of members and announce this fact in the company’s certificate of formation. Class A members are regular members who have full ownership and voting rights, while Class B members are those who acquire their membership interest by some unfriendly or coercive means (as part of a legal settlement, for instance). It should be provided that Class B members cannot vote and are not entitled to distributions except with unanimous approval of Class A members.

How better to deter adversaries than to make it clear from the outset that any interest they obtain (or obtain influence over) may be effectively worthless? Asset protection can be active or passive. Separating membership into classes is an example of a passive measure that can provide useful deterrence.

Registered Agent

The registered agent receives service of process if the LLC is sued and also forwards formal legal notices (but not ordinary business mail) to the managers. The registered agent must have a physical street address which can include a suite number but not a reference to a P.O. Box, PMB, or other obvious indication that the address is not a physical office or residence. The secretary of state occasionally googles a submitted registered agent address and may reject it if it is a postal box.

An attorney is a good choice for a registered agent because it shows strength and preparedness to potential adversaries. It shows that the LLC is solidly formed and solidly represented.

If one is going to act as one’s own registered agent, listing the home address as the registered address is not recommended. A physical office address is a better alternative.

The initial mailing address of the company must also be included in the certificate of formation along with the names and addresses of the initial managers (Member information is not required in the COF). Addresses of initial managers are different from the registered address where the registered agent can be found. Managers may and should use an office address or a postal box rather than a home address, just based on general privacy principles.

DIY LLCs

There is most definitely a difference between a minimalist one-pager-type LLC filing and one that is professional-grade in terms of documents and its ability to protect members from personal liability. Clients sometimes report that “I already have an LLC.” Usually they mean that the minimum initial fill-in-the-blank form has been filed, the fee paid to the secretary of state, and nothing else done. In terms of sound business practice, this is insufficient for many reasons. It is far better to be prepared with a well-documented LLC.

As for Internet forms, an entire article could be written on how they can do more harm than good. Business lawyers spend a fair percentage of their time cleaning up inadequacies in companies formed this way and offering asset protection guidance that the client should have received from the beginning—except now, with the cost of clean-up, the process is more expensive.

The benefits of professional documentation may not be apparent until the company is sued, and the plaintiff seeks to discover the LLC company book and documents. Only then does one see if the LLC’s documentation is up to the task. Junk documents from the Internet or LegalZoom may not look like such a good idea at that point.

LLC MAINTENANCE OVER TIME

Texas Franchise Tax Return

Required annual reports to the Texas Comptroller must be signed and filed before May 15th of each year. Preparing and filing these forms is a task usually performed by CPAs rather than attorneys.

There is a total-revenue threshold below which a tax report need not be filed. For franchise tax reports originally due on or after January 1, 2024, a taxable entity whose annualized total revenue is less than or equal to $2.47 million is no longer required to file a No Tax Due Report. However, the LLC is still required to file a Public Information Report (the PIR on form 05-102) or an Ownership Information Report (form 05-167). There is $50 fee for filing late.

In summary, a taxable entity with annualized total revenue at or below the no tax due threshold:

(1) does not owe any tax;
(2) is not required to file a No Tax Due Report as was the case in past years;
(3) but is still required to file a PIR or Ownership Information Report.

A combined group of entities (as that term is defined by the comptroller) must include all taxable entities in the tax report for the combined group even if any member, on a separate entity basis, has annualized total revenue at or below the no tax due threshold. If a combined group’s annualized total revenue is at or below the no tax due threshold, the combined group is no longer required to file a No Tax Due Report, an Affiliate Schedule, or a Common Owner Information Report for that report year. However, each individual member of the combined group that is organized in Texas or has nexus in Texas must file a PIR or Ownership Information Report.

It may be useful to visit the Texas Comptroller’s website at www.franchisetax.tx.gov http://www.window.state.tx.us. in order to become acquainted with information and resources they offer.

Texas Comptroller’s Public Information Report (PIR)

The annual filing of a Public Information Report on form 05-102 is required by the Texas Comptroller. It is due by May 15th of the calendar year after the year of formation. The PIR requires disclosure of: (1) the name, title, and mailing address of each officer, director, member, general partner, or manager; (2) each corporation, LLC, LP, PA or financial institution, if any, in which the entity owns an interest of 10% or more; and (3) each corporation, LLC, LP, PA or financial institution, if any, that owns an interest of 10% or more in the entity filing the PIR.

Note that the PIR is differs from the Certificate of Formation, which required disclosure of only the names of the initial managers. The PIR wants to know the identity of the owners (members) as well.

Disclosures made in the PIR have implications for any anonymity strategy one may have, so care is required when filling out the PIR if anonymity is part of your asset protection plan.

There is no annual filing (document or fee) required at the Secretary of State’s office.

Failure to File Texas Annual Reports

Not filing a franchise tax return or paying Texas franchise tax (if either is required) or not filing a Public Information Report can result in the company’s right to transaction business, as well as the right to sue and defend itself in Texas courts, being forfeited. Clearly, this is an undesirable outcome. If the company’s right to transact business is forfeited, the company’s officers, directors, partners, members or owners may become individually liable for debts of the entity, including taxes, penalties and interest which are incurred after the due date (Tax Code Sections 171.251, 171.2515, 171.252, and 171.256).

Documentary Maintenance of an LLC

Routine documentary maintenance should continue after the LLC’s initial formation stage. Annual meetings of members should review and ratify the preceding year’s actions, recognize unusual events or circumstances, and elect managers for the coming year. It is also a good idea to hold special meetings to approve major decisions such as the purchase or sale of an asset, the making of a loan to the company, or acceptance of new members and the associated realignment of percentage interests.

LLC maintenance extends beyond meetings and documentation. Unless the company pays its state and federal taxes, maintains a bank account, conducts regular meetings, keeps records, and the like, then in the event of a lawsuit alleging fraud, a plaintiff may claim that the LLC is not a real company—and therefore the plaintiff should be allowed to proceed directly against the members/owners personally. Needless to say, this could be a disaster and defeats the purpose of forming an LLC in the first place—which brings us to the subject of piercing the veil.

Piercing the Veil

Even if one has a properly constituted and maintained LLC, it is still possible to be sued in a personal capacity. Lawsuits seeking to pierce the LLC’s liability shield occur alarmingly often in spite of the clear bias of Texas law against piercing in the absence of actual fraud (BOC Sec. 21.223). Unless one has personally guaranteed indebtedness of the company or engaged in wrongful or illegal conduct, this is a form of lawsuit abuse—yet plaintiffs’ lawyers commonly do it anyway. Asset protection advisors who have never tried a case are stunningly unaware of this reality.

The LLC’s attorney should respond to piercing allegations by sending written discovery (including interrogatories and requests for production) to find out if the other side has any basis for insisting on personal liability. If no basis can be shown, a motion for partial summary judgment should be filed to have the personal names of members and managers removed as defendants. The LLC’s attorney should also ask for fees and costs for having to go through this process. If the LLC has been properly maintained and there is no evidence of actual fraud, then the motion should be successful. If not, this defense can be reasserted at trial.

THE TWO-LLC COMPANY STRUCTURE

Separating Activities from Assets

A two-company structure is recommended for most real estate investors, particularly as they acquire and hold more properties. This structure should consist of a shell management company to interact with the public and a separate, stand-alone holding company to own hard assets. The separation of activities from assets is foundational to asset protection. Every type of business that deals with the public and third parties—not just real estate investing—can benefit from following this principle.

The management company should be the public face of the business, preferably operating under an assumed name. It is visible and active, collecting rents, signing leases, dealing with third parties like contractors, brokers, and vendors; employing personnel; leasing office furniture, equipment, vehicles, and office space; and otherwise engaging with the public. The goal of the management company is to conduct business but avoid endangering hard assets.

The second part of the two-company structure is the holding company. A holding company is often set up as a series LLC that contains multiple compartments (series) that are isolated and insulated from one another. For example, if there is a lawsuit affecting an asset in series A, then series B, series C, and so on are not affected.

The unique benefit of a series LLC is that it is usually necessary to have only one holding company to safely own multiple assets (each asset being placed in its own series) so long as the assets are generally similar in type. (Dissimilar assets should not be placed within the same LLC, whether the LLC is a series company or a traditional LLC.) The goal of the holding company is to exist quietly in the background and not enter into contracts or business dealings that could give rise to liability and lawsuits against it.

Few investors or businesspersons need anything more exotic than the two-company structure.  Some clients like to split their two companies between two jurisdictions (e.g., Texas and Nevada).

Moving Real Estate into an LLC

Personally held assets should be moved promptly into an investor’s holding LLC. This should be done early, rather than waiting until an investor with a dozen properties titled in his personal name is served with a lawsuit. Transfers done after suit is threatened or filed can raise all sorts of thorny issues.

Deeding real estate into one’s LLC can raise questions relating to due-on-sale: if a transaction involves a title transfer without prior consent of the lender, then there is a risk of acceleration of the note if the lender’s deed of trust contains a due-on-sale clause. (It does.) As a practical matter, however, mortgage lenders are not inclined to use a technical (non-monetary) issue like this to foreclose upon an otherwise performing loan—so the due-on-sale risk of transferring an investment property into one’s personal LLC for asset protection purposes is very low. This could change if interest rates move substantially higher.

Note that it is always possible to ask for the lender’s consent for a transfer of title into an LLC.

Should the homestead be placed in an LLC?

The suggestion that real property should be transferred to an LLC applies to investment property, not the homestead. In most situations, it is neither necessary nor advisable to transfer a Texas homestead into an LLC. Why? First, the homestead is already protected by the Property Code (Chapters 41 and 42) and the Texas Constitution (Article XVI, Section 50); and second, prudence suggests that the homestead (along with other exempt assets) should generally be kept separate and apart from investment assets. An LLC (or a combination of LLCs) is an excellent means of accomplishing this.

THE CORPORATE TRANSPARENCY ACT AND FINCEN REGULATIONS

LLCs and the Corporate Transparency Act (CTA)

The Corporate Transparency Act (31 U.S.C. Sec. 5336 effective January 1, 2024) is a recent federal law that substantially affects the formation of LLCs and other registered entities that are formed at the state level. The goal of the CTA is to crack down on anonymous shell companies used by money launderers, terrorists, foreign dictators, and the like. Going forward, all LLCs and corporations are required to self-report their beneficial ownership information. The true parties in interest must be identified and disclosed, period. Civil and criminal penalties apply.

The CTA is enforced by a division of the Treasury Department—the Financial Crimes Enforcement Network or FinCEN. FinCEN is in the process of finalizing and implementing rules and regulations for enforcement of the CTA. These are already extensive and are anticipated to become even more so as FinCEN gathers steam.

The principal goal of the CTA (in addition to the obvious goal of finding more revenue to tax) is to achieve a national level of ownership transparency when it comes to state-chartered entities.

Accordingly, LLCs, corporations, and other similar entities must report personal information as to their true beneficial owners. A beneficial owner is any individual who directly or indirectly exercises substantial control over an entity or owns at least a 25% interest. FinCEN will collect this information and maintain a database that will not be available to the public but will be available to law enforcement agencies as well as federal and state prosecutors.

The actual LLC formation process at the state level is not affected by the CTA or FinCEN (at least not yet). The only practical change is that—as a mandatory part of the process—beneficial ownership information will be collected and stored at the federal level. Entity-formation filings with the secretary of state and dealings with the local county clerk (in the real property records) will not look any different.

ANONYMITY IN TODAY’S ENVIRONMENT

What about anonymity in LLC filings?

Clients often tell their attorneys that they wish to remain anonymous in the public record. People can be crazy now and bad things happen. It is totally legitimate for a real estate investor to be cautious. A disgruntled Florida tenant recently stalked his landlord and shot her while she was standing in her driveway. This author has seen a couple of interesting cases. One involved a threatened bomb in a landlord’s mailbox and another intimidation by a Columbian cartel.

True anonymity has become difficult to achieve due to a more challenging regulatory environment that now includes beneficial ownership rules. Total anonymity—at least if one is talking about anonymity from the FinCEN database—is now next to impossible if one stays within the law. And it has always been illegal to try to remain anonymous from the IRS. So when the issue of anonymity is raised, one must ask: anonymity at what level? Anonymity from whom?

Achieving significant anonymity with respect to newly-formed U.S. LLCs or corporations will now almost certainly require an expensive layered structure that involves offshore entities along with foreign trustees and nominees. Anyone interested in maximizing anonymity would also need to refrain from cash (non-loan) purchases of American real estate if the transaction involves gatekeepers such as lenders and title companies. Even so, forming an LLC can still provide a basic level of distance and partial obscurity from much of the public. Such incremental measures matter in asset protection.

Personal Information

FinCEN notwithstanding, being careful about how much personal information one launches into the public domain should always be part of an asset protection plan. Also, one’s personal name should never appear on deeds or leases, and a tenant should never write a check to an investor-landlord’s personal name or deliver a check to one’s home address. There is an old rule that people tend to sue whomever they make their checks payable to. Make sure that is never you in your individual and personal capacity. And it is still worthwhile to avoid plastering one’s home address all over the Internet and public record.

Assumed Names for LLCs

While not technically an anonymity strategy, the use of an assumed name (DBA) can enhance asset protection by adding a layer of protection. As observed earlier, asset protection is less about forming a magic entity structure and more about including incremental layers of protection whenever it is reasonably feasible to do so. An example: avoid using one’s personal name for the company—“John Jones Investments LLC,” for instance. Why make it not only easy but obvious to potential plaintiffs that Mr. Jones owns the company? Better to obtain a DBA for consistent everyday use.

Rules for assumed names are covered primarily by Chapter 71 of the Business & Commerce Code (Section 71.001 et seq.) titled the “Assumed Business and Professional Name Act.”

Conclusion

If it is worth setting up an LLC in the first place, then it should be done with maximum effectiveness relative to the company’s purpose and the desire of its members for asset protection. Clients who set up their own LLCs will tell their attorneys “I just filled out the standard forms.” The point is: There are no standard forms for establishing and properly documenting an LLC, regardless of what Internet services say in promoting their simplistic document products (These may not even be specific to Texas). Even the very basic forms available from the secretary of state’s website are of limited value—they will get you a file number, bare legal status as a registered entity, and that is about all.

The goal of an intelligent businessperson or real estate investor should not be merely to form an LLC and consider the job done. The goal should be to establish an entity structure that includes sophisticated asset protection documents and strategies that will be effective in surviving a future legal challenge.