Form of Single Member Operating Agreement
Updated through July 2013 © 2013 Herrick K. Lidstone, Jr.
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Member automatically upon the person accepting this Agreement in writing, without
any further action of the Manager.
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10.4 Incompetency. If the Member is adjudged incompetent by any court with
jurisdiction over the matter, which judgment is not being appealed, the Member shall
retain his/her interest in the Company, but the court-appointed guardian, custodian, or
trustee will have all authority to act on behalf of the Member.
10.5 Bankruptcy. If the Member files a petition under the United States
Bankruptcy Code, if creditors file a petition against such Member which the Member
chooses not to contest in accordance with the Bankruptcy Code (or if contested, the
court finds for the creditors), or if a receiver is appointed for the Member’s assets, the
Member shall retain his/her interest in the Company, but the trustee or receiver
appointed by the court will have all authority to act on behalf of the Member.
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ARTICLE XI.
AGREEMENT WITH CREDITOR
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11.1 [Insert Bankruptcy Remote—Single Purpose entity provisions]
11.2 [Insert provisions for any control agreement with creditor]
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This is a method by which the Member’s interest may avoid probate. Whereas it probably is suitable
for a single member LLC, it may not be suitable in all cases for a multi-member LLC. This needs to be
confirmed through competent estate planning counsel.
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This provision may not be in the best interests of the owner of a single-member LLC, although
it now reflects the current law. Following In re Ashley Albright case (291 B.R. 538 (D. Colo. 2003)),
Colorado amended the Colorado Act to provide that where the LLC has no members, the non-member
assignees may, by the unanimous consent of the assignees, “be admitted as a member.” §7-80-701(2)
This would include a bankruptcy trustee, a creditor foreclosing on the single member membership
interest, or an heir upon death of the single member. See C.R.S. § 7-80-703 which states that a
judgment creditor “has only the rights of an assignee or transferee of the membership interest” and
contemplates the possibility of foreclosure. The LLC acts of Kansas, Nevada, and Wyoming, have
asset protection provisions which (by their terms) limit the rights of creditors to a charging order,
expressly disclaiming the right of the creditor to foreclose on a member’s interest in even a single
member LLC. See Lidstone, “Single Member LLCs and Asset Protection” (to be published).
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An operating agreement may include other parties, such as a creditor, and it may include
provisions to protect that other party’s rights. Sometimes these are referred to as “bankruptcy remote”
vehicles, but whether they truly are bankruptcy remote depends on a number of factors. See In re
General Growth Properties, Inc., 409 B.R. 43, No 09-11977 (ALG) (Bankr. S.D.N.Y. 2009) for a case
where creditors thought they had bankruptcy protections, but found that the protections were not nearly
what was expected.
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A control agreement is necessary for a creditor to perfect a security interest in the single
member’s LLC membership interest. C.R.S. § 4-8-106(c). For more information about control
agreements, see Initial Report of the Joint Task Force on Deposit Account Control Agreements by the
Joint Task Force on Deposit Account Control Agreements, ABA Section of Business Law, reprinted in