When do you need a notary when starting a company?
When founding a LLC or stock corporation, you need a notary because the law requires the establishment to be documented in a public deed. A simple written agreement between the founders is not sufficient for this purpose.
In the case of a stock corporation, the founders declare in a public deed that they are founding a stock corporation. In the same deed, they establish the articles of association and appoint the corporate bodies (Art. 629 Abs. 1 OR). The same basic principle applies to a LLC: the founders declare in a public deed that they are founding a limited liability company, establish the articles of association and appoint the corporate bodies (Art. 777 Abs. 1 OR).
The notary is therefore particularly important for corporations. These include, in particular, the LLC and the stock corporation. For a sole proprietorship, public notarization of the foundation is generally not required. Even for simple partnerships, the focus is usually not on the appointment with the notary, but on registration with the commercial register, provided there is an obligation to register.
What is important is: notarization alone does not yet make the company fully "alive". In the case of a stock corporation, legal personality only arises upon entry in the commercial register (Art. 643 Abs. 1 OR). The same applies to a LLC: it acquires its legal personality through registration in the commercial register (Art. 779 Abs. 1 OR). The appointment with the notary is therefore a decisive step on the way to founding, but the actual completion only follows with the entry in the commercial register.
What tasks does the notary perform?
The notary ensures that the company formation is formally and correctly notarized. He checks the necessary documents, records the act of incorporation in a public deed and confirms that the relevant supporting documents have been provided.
In the case of a stock corporation, the public deed regarding the act of incorporation must contain, among other things, details on the founders, the declaration to establish the stock corporation, the confirmation of the established articles of association, the subscription of shares, the election of the board of directors and the reference to the auditors (Art. 44 HRegV). In the case of a LLC, the act of incorporation contains analogously similar details, in particular personal details, the declaration of incorporation, the establishment of the articles of association, the subscription of the share capital, details on the management and the reference to the auditors or the waiver of audit (Art. 72 HRegV).
In practice, the notary has several functions when starting a company. He establishes the identity of the persons involved, receives the declarations of the founders, notarizes the establishment, checks the completeness of the documents and, depending on the case, authenticates signatures or documents. Often, the notary's office also coordinates the subsequent submission to the Commercial Registry Office.
Particularly in the case of standard formations, the appointment sometimes seems short and formal. Nevertheless, it is legally central. The notary does not simply confirm any document, but notarizes the act of incorporation of a new legal entity. In the case of a LLC or stock corporation, it is therefore about the legal starting point of a company that can later sign contracts, hold assets and act towards third parties itself.
What documents does the notary need?
The incorporation documents must be prepared for the notary appointment. Exactly which documents are required depends on the legal form and the specific incorporation.
In the case of a stock corporation, the public deed regarding the act of incorporation, the articles of association, declarations of acceptance by the elected members of the board of directors, the auditors if applicable, the minutes of the board of directors on the constitution and, in the case of cash contributions, a bank confirmation must be submitted with the application for registration, provided this is not already mentioned in the public deed (Art. 43 Abs. 1 HRegV). If there are contributions in kind, set-offs or special privileges, additional supporting documents are added, for example, agreements on contributions in kind, incorporation report and audit confirmation (Art. 43 Abs. 3 HRegV).
In the case of a LLC, the Commercial Register Ordinance also requires the public deed regarding the act of incorporation, the articles of association, depending on the organization, declarations of acceptance by the managing directors, an acceptance declaration by the auditors if applicable, resolutions regulating the chairmanship or signature rights and, in the case of cash contributions, a bank confirmation (Art. 71 Abs. 1 HRegV). Also in the case of a LLC, additional documents may be required in the case of contributions in kind, set-offs or special privileges (Art. 71 Abs. 3 HRegV).
In a simple cash incorporation, you typically need articles of association, details of the company name, registered office and purpose, details of the shareholders, details of the management or board of directors, identification documents, the bank's confirmation of capital payment and the declarations regarding the auditors or waiver of audit. If a domicile at a third party is used, a declaration of domicile acceptance is also required.
How does the notary appointment work?
The procedure is similar for many incorporations. Before the appointment, the incorporation documents are prepared, the company name and registered office are defined, the articles of association are drawn up, the corporate bodies are determined and the capital is paid into a capital contribution account. The bank then issues a confirmation that the contribution has been deposited.
During the notary appointment, the notary checks the identity of the persons present and goes through the incorporation documents. Thereafter, the act of incorporation is publicly notarized. The founders formally declare that they wish to found the company, that the articles of association have been established and that the shares or common shares are subscribed.
In the case of a stock corporation, the founders subscribe to the shares and establish, among other things, that all shares are validly subscribed, the promised contributions correspond to the total issue price and the requirements for the contributions made are met (Art. 629 Abs. 2 OR). In the case of a LLC, they subscribe to the common shares and make corresponding findings regarding contributions, statutory duties and special facts (Art. 777 Abs. 2 OR).
After notarization, the documents are submitted to the competent Commercial Registry Office. Only with the entry in the commercial register does the LLC or stock corporation exist as a legal entity. The Commercial Register checks the application and then carries out the registration. The duration depends on the canton, the workload of the Commercial Registry Office and the quality of the submitted documents.
How much does the notary cost when starting a company?
The costs for the notary when starting a company depend heavily on the canton, the legal form and the complexity of the incorporation. In the case of a simple LLC or stock corporation cash incorporation, the costs are usually significantly lower than in the case of an incorporation with contributions in kind, special articles of association or extensive consulting.
As a rough guide, you have to expect several cost blocks for a LLC or stock corporation. First, the capital is incurred. In the case of a LLC, the share capital is at least CHF 20'000 (Art. 773 Abs. 1 OR). In the case of a stock corporation, the share capital is at least CHF 100'000 (Art. 621 Abs. 1 OR). Upon establishment of a stock corporation, contributions of at least CHF 50'000 must be made (Art. 632 Abs. 2 OR).
Secondly, notary costs are incurred. The offizielle KMU-Information des Bundes lists notary costs for incorporation deeds of about CHF 700 to CHF 2'000 for a LLC as a guide. In practice, depending on the canton and the case, it can also be below or above this. Particularly in the case of contributions in kind, complex articles of association or additional consulting needs, the costs increase.
Thirdly, commercial register fees are added. According to the Fee Ordinance, the fees are based on the rates in the appendix (Art. 3 Abs. 1 GebV-HReg). The offizielle KMU-Übersicht des Bundes lists a basic fee of CHF 420 for the new registration of a stock corporation or LLC. In addition, for example, CHF 20 per authorized signature and CHF 20 per registered function may be incurred. In case of special volume, special difficulty or urgency, surcharges are possible (Art. 3 Abs. 3 GebV-HReg).
As a very rough overall guide, the external incorporation costs of a simple LLC or stock corporation are often in the range of around CHF 1'000 to CHF 3'000, excluding the capital to be paid in. Depending on the provider and canton, this may include notary, commercial register, certifications and document creation. Those who also need individual advice, complex articles of association or contributions in kind should plan a larger budget.
Why is good preparation worth it?
Good preparation saves time, costs and queries from the Commercial Registry Office at the notary. Many delays do not occur during the actual notary appointment, but due to incomplete information, missing declarations of acceptance, unclear signature authorizations or articles of association that do not fit neatly with the planned organization.
It is particularly important that the company name, registered office, purpose, capital, ownership structure and corporate bodies are fixed before the appointment. In the case of a LLC, it should be clear who takes over how many common shares. In the case of a stock corporation, it must be determined how many shares are issued, what their nominal value is and which persons are elected to the board of directors.
If you need support with the topic of incorporation, Jurata is happy to help you at any time. Thanks to partnerships with notaries, Jurata is able to offer the process much cheaper: A company foundation is possible already from CHF 100 – and that including the costs for notarization by the notary.
Frequently asked questions about the notary when starting a company
Can I start a LLC without a notary?
No. A LLC cannot be founded in Switzerland without public notarization. The founders must declare in a public deed that they are founding a LLC, establish the articles of association and appoint the corporate bodies (Art. 777 Abs. 1 OR).
Does the company already come into existence at the notary appointment?
No. The notary appointment is necessary, but the LLC or stock corporation only comes into existence as a legal entity with the entry in the commercial register. For the stock corporation, this follows from Art. 643 Abs. 1 OR, for the LLC from Art. 779 Abs. 1 OR.
Do I have to appear in person at the notary?
In many incorporations, the founders appear in person or are validly represented. What is decisive is that the official conducting the notarization can correctly notarize the required declarations and that the necessary powers of attorney and proofs of identity are available.
Why do notary costs differ depending on the canton?
Notary fees and the organization of the notary's office are cantonal. Therefore, costs can vary depending on the canton, notary and effort. In addition, complexity, contributions in kind, special articles of association and additional consulting needs influence the price.
Conclusion
The notary is not an optional service provider when founding a LLC or stock corporation, but part of the legally prescribed incorporation process. He notarizes the act of incorporation, checks key documents and thus creates the basis for registration in the commercial register.
For founders, this means: plan the notary appointment early, prepare the documents neatly and reckon with notary and commercial register costs in addition to the capital. The more clearly the company name, registered office, purpose, capital, ownership structure and corporate bodies are defined in advance, the faster and smoother the incorporation will be.
