Can the incorporator also be the registered agent in order to satisfy the requirements most states have that all corporations designate a registered agent for their business? The short answer is yes, however, certain requirements must be met in order for an incorporator to assume that role. Before answering the question further, let’s explore what a registered agent is and the role he or she plays in the formation and existence of a business, as well as the role of an incorporator.

Role of a Registered Agent

Corporations and also limited liability companies (LLCs) and limited partnerships must designate an individual located in the state of incorporation or formation to be responsible for receiving delivery of all legal correspondence addressed to the business. The registered agent is listed on the Secretary of State website along with all other public information a business must provide when it registers in the state.

Why is a Registered Agent Important?

  • If a company is sued or if the government sends important tax information, the correspondence is addressed to the registered agent. Unlike a business address, which may change if growth demands new facilities or increases in rent force a move, the registered agent’s address remains constant.
  • Many businesses incorporate in states where they do not have a physical presence for tax purposes and/or ease of incorporation, and the registered agent serves as the physical location for that company no matter where its headquarters may be.
  • A registered agent is necessary for the corporation, LLC, or limited partnership to remain in “good standing” with the state.
  • A registered agent provides peace of mind that a piece of important correspondence will be received whether the business owner is away on business or vacation.

Requirements of a Registered Agent

In order to act as a registered agent on behalf of a corporation, LLC, or limited partnership, certain conditions must be met. The registered agent must:

  • Have a physical location in the state of incorporation. A P.O. box as an address is not acceptable.
  • Be available during normal business hours.
  • Exist in the Articles of Incorporation, Articles of Organization, or Certificate of Limited Partnership that is filed with the state, and be accessible on the website of the Secretary of State.

A registered agent can be any individual that meets these requirements, and does not need to have approval from the state to act in the interest of the company he or she represents. However, if it is desired that another business be appointed as registered agent, that business does require state approval.

Duties of a Registered Agent

The registered agent must be prepared to carry out the following responsibilities:

  • Monitor important compliance requirements and important deadlines.
  • Provide guidance in the preparation of important corporate documents.
  • Provide secure access to important corporate documents.
  • Monitor the status of the business in the state and stay up to date with any important changes to statutes that affect the business’ operation.

The Role of an Incorporator

While an incorporator can be a registered agent, the roles each play are significantly different and should not be confused. All states require at least one incorporator. An incorporator:

  • Is the individual listed in the Articles of Incorporation filed with that Secretary of State as being responsible for setting up the business in the state. In an LLC Articles of Organization, the term for this person is “organizer.”
  • Signs the Articles of Incorporation, Articles of Organization, or Certificate of Partnership.
  • Is often responsible for the initial makeup of the board of directors before the first board meeting when directors are elected.
  • Can adopt the company’s by-laws.
  • Has been granted the legal authority to sign documents and act on behalf of the business when it is being registered with the state.
  • Can be an attorney, a shareholder, director, or officer of the corporation, a member of the LLC or a partner in a business. The main requirement is that a person be able to grant assurance that the business can operate in the state.
  • Essentially controls the organization until the board of directors are elected or appointed and assume management responsibilities.

So as you can see, among the responsibilities assumed by the incorporator, serving as a registered agent is just one role the person can play in the formation of a business.

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