Forming a Massachusetts LLC takes a lot of planning. Between the Certificate of Organization, business licenses, Annual Reports, and more, there’s a lot to consider. And paperwork and startup costs aren’t the only necessary tasks. You’ll also want to set up your LLC to run smoothly and avoid legal troubles after it’s been registered with the commonwealth.
That’s where the LLC operating agreement comes in.
Time-Saving Hack: There are a handful of online LLC creation services that can form an LLC for you and include a free customizable operating agreement. ZenBusiness, though, is the only one that offers a free operating agreement in every package.
What is an LLC Operating Agreement?
An operating agreement gives your business structure and official procedures. It designates ownership, establishes operations, defines member responsibilities, and provides legal protection. Essentially, it lays out everything someone might need to know about your LLC. And it’s an internal document, so there’s no filing or fees involved.
Whether you’re starting a multi-member or single-member LLC, we strongly recommend completing an operating agreement. It’ll benefit and protect you for as long as you’re in business.
Am I Required to Have an Operating Agreement in Massachusetts?
No, an operating agreement isn’t mandatory to start an LLC in Massachusetts. However, because of the important benefits they provide, we strongly advise creating one.
By establishing standard procedures and defining your business income, an agreement will help your LLC run smoothly and protect your personal and financial assets. If you don’t adopt one right away and your business runs into legal trouble, you won’t have the operating agreement to back you up.
Benefits of Creating an Operating Agreement
You want what’s best for your business. Months or years in the future, you want it to be a profitable and thriving endeavor. Having an operating agreement in place will set up your LLC for sustained success.
It requires some legwork, but it’s well worth it. Just look at some of the benefits:
- Officially designates how the ownership is split up (the percentage each member/manager owns), so there are no disputes.
- Standardizes office and company operations to improve efficiency
- Outlines the procedures for member additions and resignations, resident agent changes, dissolutions, and more, so there is no confusion.
- Avoids Massachusetts’ “default rules,” which define baseline procedures for any LLC without an operating agreement and aren’t necessarily the best for your business.
- Grants you greater respect from Massachusetts courts.
Free Massachusetts LLC Operating Agreement
You’ll likely be inclined to search for operating agreement information on the Secretary of the Commonwealth website but, unfortunately, you won’t find any. Since it’s an optional document, the commonwealth doesn’t provide official forms or directions.
This doesn’t mean, though, that you have to fly solo. There are a ton of resources, including free templates, online. While most of these templates are good options, we recommend this one, created by Northwest resident agent. It’s an ideal jumping off point to get you started.
Whether you’re using a template or starting from scratch, here’s a quick and easy guide for what to include:
Owner or Member Information: Names and mailing addresses.
Company Information: Your LLC’s name, registered office, and principal office.
Resident Agent Information: The name of your resident agent, their address, and contact information.
LLC Formation: The date you filed or will file your Certificate of Organization with the Secretary of the Commonwealth.
Business Purpose: The type(s) of business your LLC will be doing in Massachusetts.
Term: How long your LLC in Massachusetts will be valid, typically until you file for termination.
Capital Contributions: The amount of money each member has invested in the LLC.
Profits, Losses, and Distributions: How income and debts are allocated among members and methods for distributing funds.
Ownership Percentage: How much of the company each member owns.
Management and Roles: The managerial structure and decision-making processes, naming who is in charge or certain operations.
Compensation: How members/managers are compensated and reimbursed.
Bookkeeping: Accounting procedures and member account policies.
Tax Treatment: Whether your LLC will be taxed as a Sole Proprietorship, Partnership, S-Corporation, or C-Corporation.
Member Additions: The procedure for bringing on new members – how they will be admitted, if they’re entitled to income, any expenses they will owe, their roles, etc.
Member Withdrawal: Procedures for the resignation, expulsion, retirement, or death of an existing member.
Amendment Procedures: How your LLC will approve changes to the operating agreement. Usually, it’s through a majority vote by the members.
Dissolution: What happens when you terminate your LLC. How your members will split up the remaining assets or debts.
You don’t always need to include all of the above. If any don’t apply to your LLC, feel free to leave them out. Still, it’s a good idea to cover as many bases as possible. Even if you’re a single-member LLC, you should consider including as many sections as possible to accommodate future changes. Otherwise, years into the life of your business, you may run into a dispute over something you didn’t include, and you won’t be able to fall back on the operating agreement.
When you’re finished drafting the operating agreement, you must get it approved and signed by each of the LLC’s members. Got the approval? Put it with your other business files for safe keeping. It’s an internal document, so there’s no need to submit it to the Secretary of the Commonwealth, but you’ll likely need to return to it later.
Making Changes to Your Operating Agreement
For better or worse, your business is going to change. As you begin doing business in Massachusetts and, hopefully, raking in profits, the LLC will grow and evolve. It will develop different needs and more complicated processes. Keep everything running smoothly but updating your operating agreement as changes occur.
First, all LLC managers/members must approve the change. To seek approval, follow the guidelines you already outlined in your operating agreement for ratifying amendments.
Because it isn’t recorded with the commonwealth, modifying your agreement is as simple as making changes to the Word document or PDF you keep in your own files.
For example: your resident agent resigns and, following Massachusetts law, you appoint a resident agent service to take their place. Simply pull up your electronic file, enter the new agent information, save it, and print a copy. Make sure you keep a draft of the previous document as well so you can track the changes you’ve made, just in case the commonwealth ever has any questions.
Hiring an Attorney
Worried that you might miss a critical detail? Uncomfortable with legal minutiae? If you want to ensure your operating agreement provides for all possible outcomes and disputes, you might consider hiring an attorney to review it or write it entirely.
Some attorneys have a flat rate for drafting an operating agreement; others bill by the hour. Either way, you’ll only need their assistance for a limited period of time. Use a site like Avvo to find the right fit for your business. Avvo’s database lets you sort by location, rate, and more – it even shows Massachusetts lawyers that specialize in LLCs.
Hiring an LLC Formation Service
The LLC formation process, with its forms and fees, might make you want to throw up your hands and surrender. Don’t do that! Instead, consider hiring an online service like ZenBusiness or Northwest Registered Agent.
An online service like we mentioned earlier can quickly take care of all your necessary filings. Plus, they’ll create a customized operating agreement for you!
Given the amount of time you would spend drafting an agreement from scratch, a formation service is worth it. Not only will you receive a meticulously researched and crafted operating agreement, but you’ll also be able to spend more time growing your business, planning your next move, or just relaxing.
The Secretary of the Commonwealth website doesn’t have specific pages or sections dedicated to the operating agreement. However, it’s referenced in nearly every section of the LLC Act.
Through these references, we can gather that the operating agreement has authority or influence over nearly every aspect of an LLC, from distributions to member conduct to asset management and dissolution. Basically, almost anything you include in your operating agreement will become law for your LLC. But anything left out will be governed by the commonwealth’s default laws instead.
And while the agreement has a lot of power, it doesn’t override all commonwealth and federal laws. It cannot authorize illegal member or LLC actions, and it cannot shield your company from court-ordained penalties for LLC maintenance violations. For example, say you skip an Annual Report filing or fail to maintain a valid resident agent; your operating agreement won’t prevent the commonwealth from administratively dissolving your LLC. Keep this in mind as you draft your company’s rules and procedures.
Follow the commonwealth’s guidelines and make your operating agreement as detailed as possible and you’ll be setting your LLC up for success down the road.