Many individuals concerned with asset protection have formed a Limited Liability Company ("LLC") in an effort to protect their assets. In fact, most people do not know that Florida was the second state in the United States to draft LLC legislation (dating back to 1982). Most LLCs we see in our daily practice have been formed as member-managed LLCs, that is, when the members (i.e., owners) of the LLC control and manage the LLC as well. However, due to recent changes in the law regarding LLCs, we are now recommending that any Member-Managed LLC be converted into a Manager-Managed LLC format.

The intent of this recommendation is to increase the creditor protection of the LLC should the Member be involved in a lawsuit. For example, under a Member-Managed LLC, if a creditor of the Member is able to obtain the LLC membership units (by court order, for example), the creditor could obtain management rights and make decisions for the LLC. At least one recent court ruling (from Colorado) makes this result a possibility. However, under a Manager-Managed LLC format, the Manager retains control of the management of the assets held by the LLC even if someone else "controlled" the LLC membership units.

In a Manager-Managed LLC, an elected Manager (pursuant to the Operating Agreement) manages the LLC. Note, that an existing member can act as the initial Manager of the LLC, and an independent Manager can be elected at a later time, if desired. Under a Manager-Managed LLC format, if a member was successfully sued, and the creditor obtained the member's LLC membership units, the Manager could withhold distributions from all Members and the creditor would receive nothing. This result could deter a potential creditor from filing an unjustified or otherwise frivolous claim.

If you or anyone you know has an existing LLC, they may want to consider converting the LLC to the Manager-Managed LLC format. The conversion process is neither time consuming, nor expensive, and the peace of mind and added asset protection is worth the cost. In most cases we can convert an LLC by amending the Articles of Organization, updating the Annual Report and drafting a new Operating Agreement for $800 (including the state filing fees): a small price to pay for the added protection of the Manager-Managed LLC.