West Virginia LLC Operating Agreement: Drafting Checklist

When starting a successful limited liability company in West Virginia, you should look at the essential documents you must file during your formation or incorporation. A document that often comes up in this discussion is an LLC operating agreement.

We will review the state requirements for this internal form and cover the most common elements and benefits of operating agreements for your small business.

Key Takeaways

• Small business owners aren’t legally required to enter into a West Virginia LLC operating agreement at any point in their business.

• You should draft an operating agreement for your LLC to protect personal assets and ensure each member understands their responsibilities.

• You can prepare an operating agreement before or after your business formation. The only thing that matters is that it follows a state-approved format.

What Is an LLC Operating Agreement?

When starting your limited liability company, you must submit your Articles of Organization and apply for an Employer Identification Number (EIN) from the Internal Revenue Service (IRS). Both of which allow you to register your enterprise and get your operations underway.[1]

An operating agreement also plays a pivotal role in your LLC formation. This legal document outlines your business structure, clarifying that your personal assets are separate from company property. Furthermore, the form outlines the responsibilities of each member or manager, depending on how you run your business.[2]

State Requirements

The state of West Virginia is like most other states in terms of operating agreement requirements. The state law doesn’t mandate you to draft this document when launching your LLC.

However, it’s not all black and white regarding West Virginia code. If you don’t have an operating agreement, the West Virginia Secretary of State applies default rules to your enterprise, listed in the Limited Liability Act.[3]

For example, the state tax department might not view your company through the same lens as the LLCs with an operating agreement. You may miss out on the tax benefits of running an LLC, such as eliminating double taxation.[4]

LLC Operating Agreement Benefits

The previous section hinted at the benefits of having a well-drafted operating agreement for your LLC. Let’s dive in further. Here’s why you should develop this internal document when starting your organization:

Running the enterprise your way

An LLC without an operating agreement is like a ship without a sail. Like the wind can take your vessel in any direction, the state can steer your organization onto a default course. Default state rules often result in a harmful ownership structure, which goes against the goals and vision of your business plan.

Why take such an enormous gamble when you can draft a simple document? By entering into your agreement, you ensure the state doesn’t interfere in your company management. Instead, you do things your way, making you the ship’s captain instead of the state of West Virginia.

Safeguarding the limited liability status

In all likelihood, the main reason you’ve applied for or already have an LLC formation is to separate personal assets from company property.

Drafting an operating agreement helps prove you have a legit LLC business entity. Furthermore, by listing yourself and other members of the organization, you eliminate the risk of personal liability, both for you and other owners.

Opening a business bank account and applying for credit cards seamlessly

An operating agreement isn’t necessary in the eyes of the West Virginia Secretary of State. However, this doesn’t mean other organizations and institutions don’t find this document crucial. That’s especially true for banks and credit card providers.

More often than not, these financial organizations require LLC owners to present their operating agreements when submitting their applications. Those who don’t forward this document are less likely to get a green light on their request or are rejected immediately.

Who Needs an Operating Agreement?

This internal document is a one-size-fits-all solution for organizations that want to achieve various goals:

• Avoiding personal liability under the West Virginia state law

• Keeping the business entity aligned with the goals of your business plan

• Paving the way for official formation for tax purposes

• Transforming the LLC into a sole proprietorship for greater profits and increased privacy[5]

Drafting Your West Virginia LLC Operating Agreement

Knowing the perks of a written operating agreement is great, but it won’t do you much good unless you draft your legal document correctly. The good news is that you have some leeway here, as you don’t need to submit the paper to the West Virginia Secretary of State and pay a filing fee within a few business days.

In terms of structure, you should ensure the document has all the elements of a well-thought-out operating agreement. You can download an LLC operating agreement template from many online sources if you need a ready-made format. Alternatively, drafting the internal document from scratch is an excellent option for those who don’t mind rolling up their sleeves.

Whatever route you take, the drafting process should follow this format:

Step 1: Provide Business Information

The first item on your drafting checklist is to introduce your company. A comprehensive introduction looks something like this:

• Write your business name: Use the full LLC name from your Articles of Organization. Include the term limited liability company or limited company (abbreviations are allowed). You can also add your fictional or doing-business-as (DBA) name.

• State your address: Provide the physical street address from your Articles of Organization (principal place of business).

• List your West Virginia registered agent: Include your registered agent (the person or registered agent service that receives service of process on your behalf).

• Provide your EIN: Add your EIN once received from the IRS.

Step 2: List LLC Members

No operating agreement is complete without member information, be it a single-member LLC or multi-member LLC. This is the crux of your internal documents, as it proves you (and any other members) own a legit LLC. Whoever reads this section of your paper will be sure you have a law-abiding LLC and that your personal assets are separate from company property.

The member-related information you should add to your operating agreement includes:

• Names and addresses of all members of an LLC

• Members’ ownership percentages

• Member contributions to the startup

• Profit and loss distributions according to ownership interest and capital contributions

• Voting rights based on membership interest and contributions

Step 3: Decide Member-managed vs. Manager-managed

The next phase of your process should reflect your LLC management structure. Do you want to set up a manager-managed LLC or a member-managed enterprise? If you haven’t made your pick yet or want to reconsider your original decision, check out the following pros and cons of each solution:

Pros of Member Management

• Members remain in the driver’s seat.

• It’s more affordable.

• People who fully understand the company are at the forefront.

Cons of Member Management

• It’s time-consuming.

• Passive investors are unlikely to participate.

Pros of Manager Management

• It frees up time for business owners.

• It simplifies the management of large businesses.

• Passive investors are more likely to invest.

Cons of Manager Management

• It’s expensive.

• Owners often lose some form of control over decisions.

Step 4: Lay Out Administrative Operations

When launching your LLC, you don’t want friction between LLC members. Everyone needs to understand their responsibilities from day one to have the company function like a well-oiled machine. It maximizes productivity and helps ensure you fulfill your business plan goals.

An operating agreement can help you create an efficient environment for the administrative operations of your members. Consider these questions when assigning responsibilities:

• How do capital contributions and voting rights influence your duty allocation? 

• Do you consider other factors to determine who does what in your company and customize your schedule?

• Who opens and manages your business bank account and company transactions?

• Who files annual reports and does other required filings?

• Who’s in charge of the name reservation of your legal entity?

• Who communicates with customers most frequently and addresses their specific needs?

• Who communicates with the IRS when filing tax returns?

• Who oversees profit and loss distributions?

• Who performs other day-to-day operations?

Step 5: Add and Remove Members

Some business owners are there for the long haul, but others may leave just a few years after your LLC formation. Likewise, you may want to recruit new members to help elevate your operations with fresh insights. Either way, your ownership structure changes whenever a member joins or leaves your organization.

There should be special terms that dictate how this happens, and you should list them in your operating agreement:

• What do you consider when adding a new member? Do you only take member contributions into account or multiple factors?

• How does adding an LLC member impact the membership interest of the other business owners?

• How does removing an LLC member affect the ownership percentages of the remaining members?

• What company policies will dictate the terms of buyout or indemnification agreements when a business owner steps down?

Create Your Operating Agreement Through a Filing Service

There’s no other way around it — an LLC operating agreement can be the ace up your sleeve when setting your West Virginia small business up for success. It reduces the risk of personal liability caused by state law violations and clarifies the roles of all business owners.

Although having an operating agreement is critical, this doesn’t mean you have to draft it yourself. Allow us to prepare your LLC operating agreement for you. Avoid mistakes and ensure compliance through our filing service. We offer the most affordable drafting services on the market, allowing you to efficiently start an LLC without denting your budget.

FAQs

Is an LLC Operating Agreement required in West Virginia?

No. You don’t need an operating agreement to start an LLC in West Virginia. Nevertheless, consider drafting one to reaffirm the limited liability status of your enterprise and help ensure each member is pulling their weight in the right places.

How does an LLC Operating Agreement help protect my assets?

A professional LLC operating agreement can help protect your assets by defining your limited liability status. It tells the state that your company assets are separate from personal property, giving you peace of mind in case of lawsuits. Plaintiffs won’t be able to go after your personal funds.

Who needs access to this document once it’s drafted?

The only persons who need access to your operating agreement at all times are the members of your LLC. They’re the signatory parties of the document, so it’s only natural that they should examine the form before giving you the go-ahead. Once they sign the agreement, it becomes legally binding.

How do I edit information on this document if membership changes?

You’ll need to draft a new operating agreement to edit it correctly in case of membership changes. The good news is that most of the information stays the same, including the basic details about your LLC. However, you’ll still need to draft a new document due to the amendments in the management structure.

What other legal documents do I need to draft for my West Virginia LLC?

You only need to draft your Articles of Organization to apply for your West Virginia LLC. Don’t forget about your Employer Identification Number, too. Without it, you won’t be able to pay state and federal taxes, resulting in legal issues.

Bibliography

1. IRS. “Topic No. 755, Employer Identification Number (EIN) — How to apply.” Accessed June 29, 2023.

2. Cornell Law School. “Operating Agreement.” Accessed June 29, 2023.

3. West Virginia Legislature. “West Virginia Code.” Accessed June 29, 2023.

4. IRS. “Limited Liability Company.” Accessed June 29, 2023.

5. IRS. “Sole Proprietorships.” Accessed June 29, 2023.