What is an Operating Agreement?

What is an Operating Agreement?

Running a successful business in Florida involves proper planning and legal compliance.

July 17, 2023

Running a successful business in Florida involves proper planning and legal compliance. If you are operating as a limited liability company (LLC), one important aspect is creating your operating agreement—a crucial document that outlines the rights, responsibilities, and operating procedures of the company. In this article, we will explore the key points every Florida LLC owner should know about operating agreements, including their content, filing requirements, benefits, and their role in asset protection.

Laying a Foundation

While oral agreements may be legally binding in some instances, they can lead to misunderstandings and disputes, making it challenging to protect your interests and ensure smooth business operations. While Florida law does not mandate a written operating agreement (See section 605.0102(45), Florida Statutes), having one is highly recommended. 

An LLC operating agreement serves as the foundation for your company's operations. Here are key elements to consider including:

  1. Member Information: Clearly identify the names, addresses, and membership interests of all LLC members.
  1. Management Structure: Specify if the LLC will be member-managed or manager-managed, and outline the responsibilities and decision-making authority.
  1. Capital Contributions: Outline the initial capital contributions made by members and how future contributions will be handled.
  1. Profit and Loss Distribution: Define how profits and losses will be allocated among members.
  1. Voting Rights: Establish voting procedures and clarify the voting power of each member.
  1. Transfer of Membership Interests: Detail the process for transferring ownership interests in the LLC.
  1. Exit and winding up: If one of the Members dies, gets divorced, or simply wants out, what happens next?
  1. Dissolution and Liquidation: Address how the LLC will be dissolved and its assets distributed upon dissolution.
  1. Dispute Resolution: Specify methods for resolving disputes between members. For instance – will the parties submit to mandatory mediation before resorting to litigation?

Formalities and Filing

There are only two things that most active LLCs will need to file – their Articles of Organization and their Annual Report. A common misconception with new LLC owners is that their operating agreement will be filed with the State. Absent extraordinary circumstances, your operating agreement will likely never become a public record and does not need to be filed anywhere. However, it is essential to keep a copy of the agreement in your business records and make it accessible to all members.

Planning for Success

There are several benefits to creating an Operating Agreement for your LLC, which include:

  1. Clear Roles and Expectations: A well-drafted agreement sets forth the rights, responsibilities, and obligations of all LLC members, minimizing potential conflicts.
  1. Legal Compliance: A professionally prepared agreement ensures compliance with Florida laws, reducing the risk of legal complications.
  1. Asset Protection: By clearly delineating the separation between personal and business assets, an operating agreement can help safeguard your personal assets in case of legal claims against the LLC.
  1. Flexibility and Customization: A tailored operating agreement allows you to customize provisions based on your business's unique needs and future growth plans.
  1. Navigating disputes: Knowing what the rights and responsibilities of all Members are is paramount to avoiding and navigating disputes that arise within the company.

Frequently Asked Questions

Q: Is an LLC operating agreement legally required in Florida? 

A: Florida law does not mandate a written operating agreement, but having one is highly recommended.

Q: Can an LLC operating agreement be changed? 

A: Yes, an operating agreement can be amended or updated by following the procedures outlined in the original agreement – usually, with the consent of all Members.

Q: Can I create an operating agreement after forming an LLC? 

A: Yes, it is possible to create an operating agreement after forming your LLC. However, it's best to establish one as early as possible to avoid any confusion or disputes.

Q: Can I still be taxes as an S-Corp under an LLC?

A: Yes – multi-member LLCs can be taxed as an S-Corp under rules of the IRS.

Q: Can a Trust own an LLC?

A: Yes – a Trust can be both a Member, and a Manager of an LLC.

Crafting a comprehensive LLC operating agreement is a critical step for Florida business owners who plan on having a successful LLC. It helps establish clear guidelines, protect personal assets, and minimize potential conflicts. Consulting with a qualified business attorney can help ensure your operating agreement is tailored to your specific needs and complies with Florida law, providing a solid foundation for your LLC's success.

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