West Virginia lets LLC members create an operating agreement that does not have to be written, but without one, Chapter 31B can give members equal management rights and require equal interim distributions even when their economic arrangements are different. West Virginia Code §31B-1-103 Use the agreement that matches your LLC’s structure to put voting, distributions, compensation, and member exits in writing before the statutory defaults decide them for you.
Choose the version that matches your West Virginia LLC structure.
Is an Operating Agreement Required for a West Virginia LLC?
No. West Virginia law allows members to enter into an operating agreement but does not require one, and the agreement does not have to be written. The Secretary of State also states that an LLC’s written or oral operating agreement is an internal document that is not required to be filed with the state.
The LLC itself is formed separately by filing Articles of Organization. The current domestic LLC filing fee is $100, with an additional $1 processing fee for online filings through the West Virginia Secretary of State business registration page.
Because West Virginia expressly allows an operating agreement that is not in writing, Chapter 31B does not make a signature or notarization a condition for having an agreement. A written agreement is still the practical choice when members need to prove what they agreed to.
How West Virginia Law Treats an Operating Agreement
“Operating agreement” means the agreement under section 1-103 concerning the relations among the members, managers and limited liability company. The term includes amendments to the agreement.
West Virginia defines the operating agreement by reference to § 31B-1-103. That section lets the members use the agreement to regulate the company’s affairs and business and the relationships among members, managers, and the LLC, while also identifying rules the agreement cannot override.
§ 31B-1-103(a) expressly says the operating agreement need not be in writing. Putting the terms in writing, however, avoids making an ownership or management dispute depend on proving an oral understanding.
The same subsection provides the fallback rule: to the extent the operating agreement does not address a matter, Chapter 31B governs relations among the members, managers, and company.
§ 31B-1-103(b) limits what the agreement can change. Among other things, it cannot unreasonably restrict access to information, eliminate the duty of loyalty, unreasonably reduce the duty of care, or eliminate the obligation of good faith and fair dealing.
West Virginia LLC Default Rules Worth Changing in Writing
These rules apply when the operating agreement does not provide a different permitted rule. West Virginia has several defaults that can produce unexpected results, especially when members contribute or work in unequal amounts.
In a member-managed LLC, every member has equal management rights, and ordinary business matters are decided by a majority of the members. The default is based on members, not capital contributed.
§ 31B-4-404(a)Distributions made before dissolution must be divided in equal shares. If members expect distributions to track ownership percentages or contributions, the agreement should address that expressly.
§ 31B-4-405(a)A member is not automatically entitled to compensation for services performed for the LLC. The statutory exception is reasonable compensation for services during winding up.
§ 31B-4-403(d)Certain actions require consent from every member, including amending the operating agreement, admitting a new member, making interim distributions, and disposing of all or substantially all company property.
§ 31B-4-404(c)Unless the agreement provides otherwise, a member has the power to dissociate at any time. A departure that violates the agreement or certain term-company rules can be wrongful and create liability for damages.
§ 31B-6-602If the operating agreement conflicts with the Articles of Organization on a waivable matter, the agreement generally controls among members, managers, and transferees. The Articles can still control for outsiders who reasonably rely on them to their detriment.
§ 31B-2-203(c)