How to Form an LLC in Delaware: 2026 Step-by-Step

A Delaware limited liability company is a vehicle of choice for founders who want the flexibility of an LLC with the prestige and case-law depth of Delaware corporate jurisdiction. Although Delaware is most famous for C-corporations under the DGCL (8 Del. C. Title 8), the Delaware Limited Liability Company Act (6 Del. C. ch. 18) is equally well-developed. This how-to walks through the 2026 process for forming a Delaware LLC end to end.

The Delaware Division of Corporations is at:

• https://corp.delaware.gov/
• https://corp.delaware.gov/howtoform/

The Delaware Code is at:

• https://delcode.delaware.gov/

Step 1 — Decide LLC vs. C-Corp First

Before forming a Delaware LLC, confirm it is the right vehicle:

• LLC — pass-through tax (single-member disregarded; multi-member partnership), strong creditor protection under §18-703, flexible management and distributions, no QSBS qualification.
• C-Corp — entity-level tax 21%, multiple stock classes, VC-friendly, QSBS qualification under IRC §1202 for 5-year founders.

If the path is VC-funded growth toward exit, C-corp is generally the right choice. If the path is operating business, real estate, or asset holding, LLC is generally the right choice. This how-to assumes LLC.

Step 2 — Choose a Name and Verify Availability

Delaware LLC names must:

• Contain “Limited Liability Company,” “L.L.C.,” or “LLC” (per 6 Del. C. §18-102);
• Be distinguishable from existing Delaware entities;
• Not contain restricted words like “bank,” “trust,” “insurance” without regulatory approval.

Search availability through Delaware’s name database:

• https://icis.corp.delaware.gov/Ecorp/EntitySearch/NameSearch.aspx

Optional name reservation: USD 75, valid for 120 days. For most founders, name reservation is unnecessary because the formation filing itself reserves the name.

Step 3 — Appoint a Delaware Registered Agent

Required under 6 Del. C. §18-104. The registered agent must:

• Be a Delaware resident or a Delaware-qualified business; and
• Have a physical Delaware street address (no PO boxes); and
• Be available during business hours to receive service of process.

Options:

• Commercial registered agent (e.g., Corporation Service Company, CT Corporation, Northwest Registered Agent) — typical fee USD 50–300/year. Most founders use a commercial agent.
• Self-serve — only viable if the founder lives at a Delaware address and is available during business hours.

The registered agent’s name and address appear on the Certificate of Formation, which is publicly searchable.

Step 4 — Prepare Certificate of Formation

The Certificate of Formation is the public document that brings the LLC into existence under 6 Del. C. §18-201. Required content:

• LLC name (with “LLC” or equivalent);
• Address of the registered office in Delaware (must match registered agent);
• Name of the registered agent at that address.

That’s it. Delaware’s Certificate of Formation is one of the simplest constituting documents in the United States — three lines plus signature. Member names, manager names, share/membership interest details, and operating provisions all live in the Operating Agreement (private), not in the public Certificate.

The Certificate of Formation form is on the Delaware Division of Corporations site:

• https://corp.delaware.gov/howtoform/

Step 5 — File the Certificate

File with the Delaware Division of Corporations. Methods:

• Online filing (recommended for most founders, faster);
• Mail with form and check;
• Walk-in at the Dover office (uncommon for non-Delaware founders).

Filing fees and processing options:

The base filing fee for an LLC Certificate of Formation is USD 110 (compared to USD 89 minimum for a C-corp Certificate of Incorporation — different vehicle, different fee).

Step 6 — Adopt an Operating Agreement

Under 6 Del. C. §18-101(9), every Delaware LLC has an operating agreement, which may be written, oral, or implied. In practice, every working LLC needs a written operating agreement to:

• Identify members and their percentage interests;
• Specify management structure (member-managed or manager-managed);
• Describe capital contributions and additional capital calls;
• Set out distribution rules (pro rata or otherwise);
• Address withdrawal, transfer restrictions, and dissolution;
• Modify default rules of the Delaware LLC Act.

The Operating Agreement is internal — not filed with Delaware. For multi-member LLCs, it is the primary governance document. For single-member LLCs, it establishes formality and is required to support the limited liability shield in litigation.

Step 7 — Apply for an EIN

The Employer Identification Number (EIN) is the federal tax ID required for opening a bank account, hiring employees, and filing federal returns. Apply through Form SS-4:

• https://www.irs.gov/forms-pubs/about-form-ss-4
• https://www.irs.gov/businesses/small-businesses-self-employed/apply-for-an-employer-identification-number-ein-online

For US founders with SSN/ITIN: Online application at IRS.gov is fastest — same-day issuance.

For non-US founders without SSN/ITIN: Apply by phone at +1-267-941-1099 (Monday–Friday, 6 a.m.–11 p.m. Eastern Time). The IRS issues the EIN same-day after the founder answers Form SS-4 questions live. Have the Certificate of Formation and address ready.

Step 8 — Decide Federal Tax Classification

Default federal tax treatment for a Delaware LLC:

• Single-member LLC → “disregarded entity” under Treas. Reg. §301.7701-3. Income reported on the member’s personal return (Schedule C, E, or F).
• Multi-member LLC → partnership under IRC Subchapter K. Form 1065 partnership return + K-1 to each member.

Optional elections:

• Form 8832 — elect to be treated as a corporation (then optionally Form 2553 to elect S-corp status).
• Form 2553 — direct S-corp election (75 days of formation or by 15 March of taxable year).

For most asset-holding and small-business LLCs, the default classification is correct and no election is needed.

Step 9 — Open a Bank Account

A separate corporate bank account is essential for maintaining the LLC’s limited liability shield. Take to the bank:

• Certificate of Formation (Delaware-issued original or certified copy);
• EIN confirmation letter from IRS;
• Operating Agreement (some banks require);
• Photo ID of authorised signatories.

For US founders: most US banks open accounts within 1–2 weeks. For non-US founders: traditional banks often require in-person presence and US address; alternatives include Mercury, Brex, and Wise, which work for many non-resident-founder LLCs.

Step 10 — File the Initial BOI Report

Under the federal Corporate Transparency Act (CTA, 31 USC §5336), a newly-formed LLC must file an initial Beneficial Ownership Information (BOI) report with FinCEN within 30 days of formation. The report is free and lists:

• Beneficial owners (≥25% ownership or substantial control);
• Their full legal name, date of birth, residential address, and an identification document (passport or driver’s licence).

File at:

• https://www.fincen.gov/boi
• https://www.fincen.gov/boi-faqs

The CTA’s applicability has been subject to litigation in 2024–2025; check the FinCEN website for the current state before relying on any exemption.

Step 11 — Annual Compliance

Each year, a Delaware LLC must:

• Pay Delaware franchise tax of USD 300 by 1 June (specific to LLCs; C-corps have a different schedule);
• Maintain registered agent (continuous Delaware presence);
• File annual federal tax (Form 1065 for multi-member; Schedule C/E for single-member);
• Update BOI with FinCEN within 30 days of any change in beneficial ownership.

If the LLC operates outside Delaware, it must also:

• Foreign-qualify in each state where it carries on business;
• Pay state franchise tax in each foreign-qualified state (e.g., California’s USD 800 minimum).

Step 12 — Save Everything

Maintain a “minute book” that includes:

• Certificate of Formation (original);
• Operating Agreement (signed);
• EIN confirmation letter;
• BOI confirmation;
• Annual franchise tax receipts;
• All resolutions and consents;
• Cap table updates.

This documentation supports the LLC’s separate-entity status and limited liability shield in any future dispute.

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Disclaimer

Legal information, not legal advice. MmowW Scrib🐮 is operated by a licensed Gyoseishoshi (行政書士) office in Japan. We are not US attorneys. For US legal advice on entity formation, retain an attorney admitted in the relevant state.

Sources

1. Delaware Division of Corporations — https://corp.delaware.gov/howtoform/
2. Delaware Code — https://delcode.delaware.gov/
3. IRS Form SS-4 — https://www.irs.gov/forms-pubs/about-form-ss-4
4. IRS EIN Online — https://www.irs.gov/businesses/small-businesses-self-employed/apply-for-an-employer-identification-number-ein-online
5. FinCEN BOI — https://www.fincen.gov/boi