What are the legal aspects of forming your LLC when investing in commercial real estate? We are talking with Garrett Sutton, a corporate attorney, asset protection expert and best selling author who has sold more than 900,000 books to guide entrepreneurs and investors.

You can read this entire interview here: https://montecarlorei.com/llc-strategies-to-protect-your-real-estate-assets/

How should a real estate investor organize their LLC’s for best protection?
We like having an LLC set up in the state where the property is located. If you buy a property in Oregon, we set up an Oregon LLC to be on title to the Oregon property. And in all 50 states if a tenant sues, or the law where the property is located is going to apply, if we have a number of LLC’s and we want to protect against the outside attack, that tenant suing is the inside attack, they have a claim directly against the LLC that holds the real estate, the outside attack is you get in a car wreck. It has nothing to do with the real estate but your insurance doesn’t cover the claim. And in that case, we like Wyoming and Nevada to own the Oregon LLC. If you have a property in Utah, we’d have an Utah LLC.

Let’s dive into all of the documentation that you guys will be sending us after an LLC is formed.
We submit the Articles of Organization to the state. It’s a very short form because this one document is a matter of public record. Anybody can look it up and see what’s on it. We don’t want to put too much information on that.
Then behind that public document, you’re going to have the Operating Agreement, which is the roadmap for how you’re going to operate the LLC. Who are the members of the LLC? What percentages do they own? When are we going to have meetings? Can we have telephonic meetings?
The Certificate of Formation comes back from the state saying, Yes, you’re formed, and the filing.
The EIN stands for Employer Identification Number. That’s like a social security number for your business.
We also have minutes of the first meeting.
The membership certificate is like a stock certificate.

How does an investor pays himself with an LLC?
If you have real estate, and you’re just holding and receiving income from real estate, and we consider it passive, then the money would flow from the LLC to you as a distribution and you’re going to owe tax on that as well. You’d write a check from the LLC, to you personally and then you would cash that check and put it into your personal bank account. So we’d have money coming into the LLC from rents, let’s say you own a duplex, the rents come into the LLC, you pay all the expenses at the LLC level, and then you make a distribution from the LLC to yourself.

What else is important for our audience to know?
1. Every year you have to pay a fee to the state, like we mentioned, Wyoming is $50 a year.
2. You have to have a Registered Agent in the state where you’ve set up the LLC and a state where you’ve qualified to do business, like a Wyoming LLC qualified in California, you’d have to have a Registered Agent in Wyoming and California in that case.
3. You need to have the separate bank account, as we mentioned, you can’t co-mingle funds.
4. You need to do the minutes every year.
5. You need to make sure that on all documentation, you’re using XYZ LLC and you’re signing as manager, not as a personal owner of the property.

Garrett Sutton
(800) 600-1760
www.corporatedirect.com

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Rich Lowry | Editor-In-Chief of National Review | 12-03-25