Are you looking to start a professional corporation in Delaware, but you’re not sure where to start?
Professional corporations are those owned and operated by licensed professionals, like doctors, lawyers, and architects. There are quite a few important steps you’ll need to take to create your Delaware professional corporation and maintain it, so this guide will outline the rules and regulations involved with this process.
We’ll cover everything you need to know, from picking names, choosing a board, navigating taxes, and more. To get started, please reference our guide below or hire a professional online incorporation service.
What is a Delaware Professional Corporation?
On the surface, a professional corporation and a regular corporation look very similar. Both businesses can issue stock, both have bylaws, and both are governed by a board of directors and an executive team. Both pay corporate income taxes, too.
And more importantly, both corporation types offer personal asset protection. Simply put, a shareholder or member of the business isn’t liable for the business’s debts. So a member of the corporation can’t be sued; the corporation is sued. However, in a professional corporation, there’s one exception: individual members can be sued for malpractice.
That’s especially important because professional corporations usually offer professional services, such as lawyers, dentists, doctors, chiropractors, and more. All of those trades can be sued for malpractice. But in a PC, only the person responsible for the malpractice can be sued. That makes it a better option for most professionals.
In Delaware, a corporation is only allowed to offer professional services (i.e., form a professional corporation) if every share of stock is owned by a person licensed for the profession. This reduces a PC’s ability to fundraise somewhat, but the advantage of liability protection remains.
7 Steps to Start a Professional Corporation in Delaware
Now let’s jump into the specific steps you’ll need to take to form a professional corporation in Delaware. Later on in this guide, we’ll discuss the steps you need to take in order to maintain your corporation in Delaware. But let’s start at the beginning.
1. Select Your Board of Directors
A professional corporation is only as good as its board of directors, so you’ll want to appoint carefully. And while the bulk of people involved in the day-to-day operations of your business will be licensed in your profession, we recommend having your board be a bit more diverse.
For example, a dental PC might want a director with legal experience, one with business growth expertise, a financial expert, and so on. This gives you diverse input to help the business succeed.
Delaware makes it pretty simple to choose your board because there isn’t a big list of rules for who can serve on your board. You must have at least as many directors as you have shareholders. For example, if you have 2 shareholders, you must have at least 2 directors (they may or may not be the same people; it depends). Your directors don’t have to be licensed in the PC’s professions, but in many cases they will be. For more information on these guidelines, please consult the Directors section of the Delaware Code.
2. Designate a Registered Agent
Every Delaware professional corporation—and even other entity types—must appoint a registered agent. This individual accepts “service of process” from the state on your behalf. Basically, if the state ever needs to notify you regarding a lawsuit or an upcoming annual report due date, they’ll contact your registered agent. Your agent forwards that notice to you.
Delaware has a few legal requirements for your registered agent, though:
- Every entity that files with the Division of Corporations (both domestic and foreign) must appoint a registered agent
- The agent may be the business itself, an individual who resides in the state, or a business with authority to do business in the state
- An agent must be continuously maintained
You can find a full rundown of the state laws in Delaware’s General Corporation Law.
Technically, you can serve as your own registered agent, but we don’t recommend that. First, you’ll be busy running the day-to-day affairs of your corporation. It’s also important to note that the registered agent’s address goes on the public record; some entrepreneurs are uncomfortable with that idea. Because of that, it’s a good idea to appoint a third party, like an individual you trust or one of our top registered agent services.
3. Choose a Name for Your Corporation
Technically, you can complete this step at any point during the process, but we’ve put it here—depending on how involved your board of directors or fellow incorporators are, they may want to be involved in the naming process.
Choosing a name can be one of the most fun—and challenging—parts of starting a PC. There are a few things to keep in mind when picking a name.
Meet Delaware’s Legal Requirements
The trickiest part of naming a business is adhering to the state’s legal requirements for naming a business. Thankfully, Delaware keeps its laws relatively simple:
- Your name must be “distinguishable on the record,” or distinct from the names of other entities in the state
- Your name must include:
- A word describing the service you offer OR
- The name of a shareholder or partner of the organization (may be past or present)
- Your name must also include the word “chartered,” “professional association,” or the abbreviation “P.A.”
- You may not use words that apply to a regular corporation, such as “corporation” or “company”
Pick a Descriptive Name That You Like
As long as you meet legal requirements, you have a lot of leeway to pick the perfect name for your professional corporation. In general, you should choose a name that’s memorable, describes what your business does, and is easy to say and remember. More importantly, you should pick a name that you and your team likes. You should feel good when you tell other people about your business, and your name is a big part of that.
You can also reserve your name with the Application for Reservation of a Corporate Name. This procedure costs $75, but it protects your name for 120 days. That buys you time for other business start-up steps. After all the work to create a name, you don’t want to lose it to another business.
4. File your Articles of Incorporation
Now that you have your board, agent, and name all lined up, you’re all set to file your Certificate of Incorporation. This one-page document is what officially forms your business in Delaware, and it requires some foundational data about your business. This is the information you’ll need to provide:
- The name of your corporation
- Name and address of your registered agent
- The number of stocks you’ll issue, and the value of each share
- Name, mailing address, and signature of incorporator
All told, this form is pretty simple to complete; all you have to do is fill in the requested information, and you’ll be set to go. You should also include a brief cover memo to introduce your is ling (learn more here). When you file, be sure to include your filing fee; the minimum filing fee is $89, but it rises depending on how much capital stock you issue. A lot of PCs will pay $89.
5. Establish Your Corporate Record & Hold Your First Board Meeting
Now that your professional corporation officially exists, it’s time to establish your corporate record. Your board of directors will help you do this during your first board meeting.
The very first step you’ll take is drafting your bylaws. Delaware doesn’t dictate a lot of legal requirements for the day-to-day operations of your business, so that’s where your bylaws will come in. Your bylaws are basically the operating manual for your business: how the board is appointed and maintained, shareholder policies and distributions, how officers are appointed, and much more. Every PC will have slightly different bylaws, but it’s essential to have them.
In addition to creating bylaws, at your first meeting, you’ll want to appoint someone to take minutes at each meeting. These minutes form another vital part of your corporate record, summarizing all important activities and decisions.
Other important tasks for your first meeting include appointing officers, drafting a conflict of interest policy, establishing committees (if applicable), and more. No two board meetings are exactly alike, but the first one is a crucial (and busy) one.
6. Obtain Business Licenses
As a professional corporation, you won’t be a stranger to the licenses required by your industry. But we’d be remiss not to remind you of them!
In Delaware, every shareholder must maintain the appropriate licenses for your industry, and employees are also required to have licenses if they’re offering the PC’s service. If any of your employees or shareholders need to renew or obtain a license, then the state’s Business First Steps Page is a great place to get started.
Delaware also requires every business to get a general state business license through Business OneStop. Registering there also gets you set up with the Department of Revenue, workers’ compensation, and more. It’s a very helpful tool.
After you’ve completed that step, we also recommend checking in with your city or county to learn if there are any local license requirements. A good starting point is to read our guide to DE business licenses.
7. Set up a Business Bank Account
If you don’t already have one, it’s time to get a business bank account. This enables you to ensure that your business funds and personal funds are always separate—an essential distinction to maintain your personal asset protection. Most banks will ask to see your bylaws (and maybe even your formation documents) as part of this process.
You can also look into getting a business credit card if you feel your company is ready for that step.
2 Steps to Maintain Your Delaware Professional Corporation
Now that your business is up and running, it’s time to maintain it compliantly. There are three major areas you’ll want to tackle (or plan ahead for): taxes, insurance, and annual reporting.
1. Prepare for Taxes
Taxes are a fact of life for a corporation. Before you do anything else, we recommend obtaining an EIN, or an Employer Identification Number—even if you don’t have employees. That’s because an EIN acts like a social security number for a business. What’s more, it’s free (and quick) to obtain through the IRS.
After that, if you have employees, you’ll want to anticipate your contributions to unemployment insurance taxes on the state and federal levels and income withholding taxes (on the federal level only since Delaware doesn’t have income taxes).
And of course, there are corporate income taxes to account for (21% for federal taxes and 0% for state ones). These taxes are arguably the biggest expense a corporation will face in a given year. Income taxes are supplemented by the Business Franchise Tax (a minimum of $300) and Delaware’s miscellaneous industry taxes: fuel and cigarettes are just a few examples. You can find more information on these taxes with Delaware’s Business Taxpayer Services.
Not every tax will apply to your Delaware PC, and this is not an exhaustive list. Taxes are complicated and vary significantly depending on your business. We highly recommend consulting with a tax professional to ensure that you’ve covered all of your responsibilities.
To keep things organized and simple for all things tax, we recommend setting up an accounting software and working with a qualified professional.
2. Obtain Business Insurance
In addition to the malpractice insurance that each practitioner maintains, we highly recommend maintaining a general liability insurance policy for the business as a whole.
Lots of things can go wrong: fallen trees at your physical location, a fall on your property, malfunctioning equipment…it’s a long list. This general policy isn’t required by Delaware law, but we recommend it so you’re protected no matter what. Accidents and natural disasters can be very expensive.
Delaware does require one insurance policy, though: workers’ compensation. Any Delaware business with employees must maintain one of these policies. For more information on this requirement, please consult the Department of Labor.
Getting Help With Your Delaware Professional Corporation
Feeling overwhelmed or just need an extra hand? Here are some of our favorite resources for Delaware professional corporations.
Online Incorporation Services
If you would like to hire an affordable business incorporation service to create your professional corporation for you, services like LegalZoom, Rocket Lawyer and Swyft Filings can help you out. These service providers can handle most of the formation process, while still charging much lower rates than a business attorney’s fees.
There isn’t the same level of personalization that a lawyer can provide, but online incorporation services can still be a tremendous help. The only major issue with these service providers is the fact that they can’t provide any actual legal advice, so you need to know what you want ahead of time.
Delaware Business Attorneys
There are some situations where hiring a business lawyer is a preferable route to using an online incorporation service. The professional corporation as a business structure can be highly complicated and specialized, and if you want to have the peace of mind that every single step was taken care of by a true expert, hiring a business attorney to form your Delaware professional corporation is the way to go.
If you would like to pursue this route, there are some convenient services that can help you choose the right lawyer for your business. We like to use Avvo, which has extensive reviews and ratings for hundreds of Delaware business lawyers, which can make it much easier to select an attorney who has your best interests in mind and also has the expertise to get the job done right.
Frequently Asked Questions
Can I speed up the process?
Processing speeds for Delaware aren’t extremely speedy, as some documents can take as much as 15 days to be turned around. If you need a quicker turnaround, expedited processing starts at $50.
Can a Delaware professional corporation elect S-corporation status?
In most states, there’s a big advantage to electing S-corporation status, which allows a corporation to be taxed more like a pass-through entity. Since individual income taxes are often lighter than corporate ones, this election can reduce your tax burden. To qualify for this status, a corporation must have 100 or fewer shareholders and only one class of stock.
Delaware PCs can apply for this status with the IRS using Form 2553, but the advantage is limited to the federal level since Delaware doesn’t have a corporate income tax.
Do I have to file my corporate record with the state?
Delaware does not require you to file your corporate record with the Secretary of State; you’re simply required to keep one. Most PCs choose to keep a classic binder with these records, but you can pick the method that works for you. Just ensure that it’s accessible somewhere onsite, and you’ll be able to add to it or consult it as needed.
What’s the difference between a PLLC and a PC? Can I form one in Delaware?
A PLLC, or Professional Limited Liability Company, is an LLC formed by professionals in regulated industries. Some states offer it as an alternative to the PC because LLCs are a little easier to run (and have tax advantages over corporations). Delaware, however, does not have a PLLC option.
Are incorporation services like ZenBusiness and Northwest worth it?
That depends on what your needs are. If you want to keep your expenses as low as possible, then you might find yourself bewildered by the state fee and the service’s package fees put together. But if you don’t want to endure the hassle of dealing with paperwork, or you simply want a teammate to help you through the process, a service may be a big help to you.
Another important note is that neither ZenBusiness or Northwest file professional corporations. Yes, they are ideal if you’re looking to form a regular corporation or an LLC, but not professional corporations.
Should I hire a business attorney to help with my PC?
Ideally, yes (if you can afford it). But a business-lawyer relationship is a very important one, and you’ll want to find a lawyer that fits your budget, your personality, your industry, and so on. One of our favorite tools for Delaware businesses is Avvo.com, where you can find lawyers in your city, based on the best customer reviews, and several other helpful filters. It’s a helpful tool.