Can I transfer my business ownership using the operating agreement?
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I will try to give some thoughts...
Including both clauses in your Single Member LLC operating agreement is legally prudent and reinforces important protections under corporate and estate planning principles. The Separation of Business and Personal Finances clause is especially important for upholding the LLC’s limited liability status under both state statutes (such as Cal. Corp Code § 17701.04 if in California) and common law doctrines like the corporate veil. Courts may pierce the LLC veil in cases of commingling or treating the company as an alter ego, which can expose the member to personal liability for business debts. By explicitly committing to maintain separate bank accounts, financial records, and refraining from personal use of company funds, you are both affirming best practices and creating documentary evidence that can serve as a defense in the event of legal scrutiny.
The Transfer of Interest Upon Incapacity clause is a more complex but beneficial provision that overlaps with succession planning and LLC continuity. While a single-member LLC generally dissolves upon the death or incapacity of the member under default state law (see Uniform LLC Act § 701 and relevant state equivalents), including an incapacity transfer clause provides clear direction and continuity. However, such a clause should be supported by a durable power of attorney or living trust to avoid conflicts or ambiguity. The clause as written assigns management to your spouse upon physician-certified incapacity, which is sensible, but you may also consider incorporating language requiring written acceptance by the transferee and clarifying whether this constitutes a full assignment or temporary management authority.
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I am in the process of completing my single member LLC operating agreement and wanted to add two additional clauses. I don't know if I should add them or if they are even needed.
I understand you're working on your single member LLC operating agreement. What specific clauses are you considering adding?
Separation of Business and Personal Finances
The Member agrees and acknowledges that all financial transactions and obligations of the Company shall be kept strictly separate from the personal finances of the Member. The Company shall maintain separate bank accounts, records, and financial systems. Under no circumstances shall Company funds be commingled with personal funds, nor shall Company assets be used to satisfy personal debts or liabilities of the Member.
Transfer of Interest Upon Incapacity
In the event that the Member becomes incapacitated and unable to manage the affairs of the Company, as certified in writing by a licensed physician, all rights, title, and interest in and to the Company shall automatically transfer to her spouse [SPOUSE NAME]. [SPOUSE NAME] shall assume full authority and responsibility for the management and operation of the Company, subject to the terms and conditions of this Operating Agreement and applicable law.
Have you consulted with a corporate lawyer before about these additional clauses?
No, I have not.
Is there anything else the Corporate Lawyer should know before I connect you? Rest assured they'll be able to help with your operating agreement.
No I don’t think so and thank you.
Good afternoon and welcome to AskaLawyer. Please give me a moment to review your question.
Note that I am a hearing impaired expert and so phone calls are difficult for me. Thank you for understanding.
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I will try to give some thoughts...
Including both clauses in your Single Member LLC operating agreement is legally prudent and reinforces important protections under corporate and estate planning principles. The Separation of Business and Personal Finances clause is especially important for upholding the LLC’s limited liability status under both state statutes (such as Cal. Corp Code § 17701.04 if in California) and common law doctrines like the corporate veil. Courts may pierce the LLC veil in cases of commingling or treating the company as an alter ego, which can expose the member to personal liability for business debts. By explicitly committing to maintain separate bank accounts, financial records, and refraining from personal use of company funds, you are both affirming best practices and creating documentary evidence that can serve as a defense in the event of legal scrutiny.
The Transfer of Interest Upon Incapacity clause is a more complex but beneficial provision that overlaps with succession planning and LLC continuity. While a single-member LLC generally dissolves upon the death or incapacity of the member under default state law (see Uniform LLC Act § 701 and relevant state equivalents), including an incapacity transfer clause provides clear direction and continuity. However, such a clause should be supported by a durable power of attorney or living trust to avoid conflicts or ambiguity. The clause as written assigns management to your spouse upon physician-certified incapacity, which is sensible, but you may also consider incorporating language requiring written acceptance by the transferee and clarifying whether this constitutes a full assignment or temporary management authority.
Does that make sense?
That does make sense. It sounds like my better option is updating my living trust to include my LLC and designate where it should instead off using the operating agreement.
Precisely my friend. And you’re very welcome.
Awesome. Thank you for your help.
Of course. Chat anytime.
