Nonstatutory conversion is the process of changing a business entity's legal structure, typically from one type to another, outside the framework of specific statutory provisions, often done for tax or operational reasons.
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The limited liability company (LLC) and the corporation are both formal business entities with plenty of their own advantages and disadvantages.
When you’re first forming your business, one or the other might seem like the right fit, but as your business grows and matures, you may realize that the other entity type would better suit your company.
If you decide that you’d like to convert your LLC to a corporation (or vice versa), there are two main ways to do this: you can execute a statutory merger or statutory conversion. But there’s also a third option that’s rarely used anymore, which is the nonstatutory conversion. What is the nonstatutory conversion, and why is it so unpopular these days?
In this article, we’ll explain all the relevant details of the nonstatutory conversion, as well as its two much more popular alternatives.
A nonstatutory conversion is an antiquated method for converting one business entity type to another — for example, changing an LLC to a corporation, or vice versa. The nonstatutory conversion starts with forming an entirely new business entity, followed by a vote to approve a merger between your existing entity and the new one.
Then, your business owners will need to voluntarily and formally trade in their ownership in your previous entity for ownership shares in the new entity. Finally, you’ll need to draft and file a document usually called a certificate of merger with your Secretary of State to officially merge the two companies.
You will also need to transfer the assets of your original business entity to the new one once it’s formed, and dissolve your original entity. The reason this is all such a hassle with a nonstatutory conversion is that you’ll need to draft agreement documents to complete each exchange of power and transfer of assets.
This can be a tremendous hassle, and it’s a complicated enough process that we would never recommend the DIY route — you would almost certainly need to hire a lawyer to assist you. Thankfully, hardly anyone actually needs to do a nonstatutory conversion these days, because there are two other much simpler methods to convert a business entity.
The statutory conversion is the simplest way to convert your business from one entity type to another. Statutory conversions were introduced into the American business world fairly recently, and as such, they’re still only available in 35 states. (Read the statutory conversion definition)
This process has some variance from state to state, but in general, it starts with the company’s ownership group agreeing to convert the business entity type and drafting a conversion plan. Then, those owners need to hold a vote to approve the conversion. In a corporation, you’ll need to provide the company’s stockholders with the plan so they can vote on it, while in an LLC, you just need a majority of the company’s owners to approve the plan.
The next step is to draft and file the certificate of conversion. The exact information needed to complete the certificate of conversion can vary depending on which state you’re converting an entity in, but generally speaking, you’ll need to provide the Secretary of State with the following information:
You will also need to prepare and file the formation documents for the business entity you wish to convert to — the articles of organization for an LLC, or the articles of incorporation for a corporation. Finally, you’ll need to formally dissolve your original business entity, and your statutory conversion is complete.
Recommended: Conversion Definition and How to Change an LLC to an S Corp
The statutory merger is no longer the most popular method for converting one type of business to another, but it is still used frequently in a handful of states. The statutory merger starts with the formation of a brand-new business entity, followed by a vote to approve a merger between your existing entity and the new one.
All told, the statutory merger is quite similar to the nonstatutory conversion, but the big difference is that with a statutory merger, these transfers are relatively seamless and automatic. In a nonstatutory conversion, you’ll need to draft separate agreement documents to complete each step. Read more on the statutory merger definition.
If this process sounds like more of a hassle than you’re willing to take on, or if you would rather have the peace of mind that each step was completed correctly by a professional, you do have some options. You could hire a business attorney to convert your business entity, although this is an extremely expensive route that could see your expenses quickly climb into the thousands of dollars.
Another option is to hire a business services company. While there aren’t nearly as many options as there are for forming an LLC, there are still several reputable companies offering business conversion service. Take a look at a few of our favorite options:
The nonstatutory conversion is hardly ever used these days, as it has been replaced by the statutory conversion, and to a lesser extent, the statutory merger. This is fortunate, as the nonstatutory conversion is easily the most complicated of these three methods.
If the entity conversion process gets overwhelming, keep in mind that there are reputable companies that can help you out. If you run into any trouble, give Swyft Filings, LegalZoom, or BizFilings a call and they’ll handle the process on your behalf.
We hope this article helped you develop your understanding of the nonstatutory conversion!
Disclaimer: The content on this page is for information purposes only and does not constitute legal, tax, or accounting advice. If you have specific questions about any of these topics, seek the counsel of a licensed professional.
Written by Team ZenBusiness
ZenBusiness has helped people start, run, and grow over 700,000 dream companies. The editorial team at ZenBusiness has over 20 years of collective small business publishing experience and is composed of business formation experts who are dedicated to empowering and educating entrepreneurs about owning a company.
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