Delaware Registered Agent Service Under the Virtual Office Rule

Section 18-104 of the Delaware LLC Act requires every limited liability company to have and maintain a registered office and a registered agent for service of process in the state, with the agent having a business office identical with the registered office. The Division of Corporations, part of the Delaware Department of State in Dover, will not accept a Certificate of Formation that fails to name the registered office street address and the agent. The Certificate is short. Name, registered office, registered agent and a signature from an authorized person are about all it contains.

The agent is where lawsuits land. When someone starts a case against your company, the summons is delivered to the registered agent. The statute also has the agent forward service of process and other communications to the company, along with the annual tax statement or an electronic notification of it. This page follows the LLC Act, and companies of the other four entity types can hire us as agent too.

Delaware LLCs file no annual report, and the state's yearly demand is a tax payment instead. The agent address is still the point of record for service, so it is worth keeping accurate.

Section 18-104(a)(2) lists four kinds of agent: the limited liability company itself, an individual who resides in Delaware, a domestic LLC, corporation, partnership or statutory trust, or a foreign entity authorized to do business in Delaware. The statute expressly allows the company to be its own agent, which several other states do not.

The presence rule depends on the kind of agent. An entity has to maintain a business office in Delaware that is generally open. An individual has to be "generally present at a designated location in the State of Delaware, at sufficiently frequent times to accept service of process." A commercial registered agent, one that serves more than 50 entities, has a stricter version: a Delaware business office generally open during normal business hours, a Delaware business license, and an officer, director or managing agent who is a natural person generally present at that office during normal business hours. That is the law's rule for commercial agents, and the Division's agent page says the same about being open during normal business hours.

Then comes the sentence that matters most for out-of-state owners. A registered agent may not perform its duties or functions solely through the use of a virtual office, the retention by the agent of a mail forwarding service, or both.

If you live in another state, you have no Delaware office and you cannot be generally present in Delaware at frequent times. An individual agent or the company acting for itself will not work for you, so an owner who lives elsewhere needs a Delaware individual or an entity as agent.

The agent's address goes on the Certificate of Formation, which is a public record. Naming a commercial agent puts its Delaware address there instead of your home.

The Division adds a warning of its own: registered agents are not regulated by the State of Delaware, and choosing one is the consumer's responsibility to research. So the question is not whether to use an agent. It is which one.

A change of agent in Delaware is a Certificate of Amendment Changing Only the Registered Office/Agent, filed with the Division of Corporations. The state fee is $50 under section 18-1105(a)(11). The form asks for the company's exact legal name as it appears in the Division's records, the new registered office street address, city and zip, the new agent's name and an authorized person's signature. You can upload it through the Division's document filing service or mail it to the Division in Dover.

The form itself has no consent line for the new agent, but the Division says the selected agent must consent to being appointed before the filing goes in. If Mainstay is your new agent, we prepare and file it and pass the $50 through at cost. Keep the old agent in place until the new one is on record, so the company is never without a valid agent.

Changing the Delaware agent updates only Delaware. If the company is registered in other states, each of those has its own agent on file and its own change process.

A resigning Delaware agent files a certificate of resignation, with a fee of $2 for each LLC. Under section 18-104(d) the resignation does not become effective until 30 days after the certificate is filed, and the certificate must state that the agent gave the LLC written notice at least 30 days before filing. If the agent has a successor lined up, the filing costs $200 and carries each LLC's ratification.

If the LLC does not obtain and designate a new registered agent before the 30 days after filing run out, the statute says the certificate of formation shall be canceled. Service on the company then goes to the Secretary of State. Section 18-104(g) also lets an agent resign if the company fails to give it the name, business address and phone number of a person authorized to receive communications from it.

Even with an agent in place, if process cannot by due diligence be served on a manager, the agent or the registered office, section 18-105 lets it be served on the Secretary of State, who notifies the company by letter at the address in its records. The plaintiff pays the Secretary $100. Name the replacement agent before the 30 days are up, because the $50 change costs far less than a cancellation.

Delaware LLCs file no annual report. They pay an annual tax of $400, due on or before June 1 following the close of the calendar year, with no proration. The Division's late penalty is $200 plus 1.5% interest per month, and if the tax goes unpaid for three years the certificate of formation is canceled. A company formed this year pays its first tax by June 1 of next year.

Mainstay's service in Delaware is $149 a year, renewing at the same $149. It covers your registered agent and compliance reminders. The $400 tax is yours to pay to the state, and no annual report is involved because Delaware LLCs file none. A new Delaware company can instead use the $199 formation package, which includes the agent and adds the Certificate of Formation and your EIN application.

Your registered office becomes Mainstay's Delaware street address. We scan and upload service of process the same business day, and there is no charge. Each year the first three government mailings are scanned at no cost, any piece after that carries a per-piece scan or shipping fee, and we do not forward physical mail free on any tier. Delaware lawyers answer lawsuits, and we upload the papers.