Key Takeaways

  • An incorporator is the person or entity who files the Articles of Incorporation and formally brings a corporation into existence.
  • The incorporator can also serve as the registered agent if they meet state requirements, such as maintaining a physical address and being available during business hours.
  • The registered agent is responsible for receiving legal documents, state notices, and service of process on behalf of the business.
  • Serving as both incorporator and registered agent can streamline startup costs and paperwork but also increases personal responsibility.
  • Being named an incorporator does not grant ownership or control of the company — authority passes to the board of directors and shareholders after formation.

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.

Can an Incorporator Be the Registered Agent?

Yes. In most states, an incorporator can also serve as the registered agent for the business, provided they meet all statutory requirements. This arrangement is common among small business owners and startups that want to reduce costs or keep operations simple during the early stages of incorporation.

To serve in both roles, the incorporator must:

  • Maintain a physical address in the state of incorporation where legal notices and service of process can be delivered.
  • Be available during regular business hours to accept official correspondence.
  • Be listed as the registered agent in the company’s formation documents filed with the Secretary of State.

While combining the roles is legal and often practical, it does require careful consideration. Acting as a registered agent means taking on ongoing legal responsibilities beyond the initial incorporation process, including ensuring that the business remains compliant with state filing and reporting requirements.

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.

Advantages and Drawbacks of Combining Roles

Choosing to have the incorporator serve as the registered agent offers both benefits and potential downsides:

Advantages:

  • Cost savings: Small businesses can save money by not hiring a separate registered agent service.
  • Streamlined setup: The incorporator is already familiar with the company’s legal documents, making the transition seamless.
  • Direct oversight: The incorporator maintains firsthand knowledge of compliance deadlines and legal notices.

Potential Drawbacks:

  • Increased liability: The incorporator bears the legal responsibility of receiving and handling critical documents.
  • Privacy concerns: The registered agent’s address is public, which may be undesirable if using a home address.
  • Limited availability: If the incorporator is frequently unavailable during business hours, they may fail to meet state requirements.

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.

Limitations of the Incorporator’s Authority

It’s important to understand that being named an incorporator does not confer ownership or ongoing control of the company. The incorporator’s role is limited to the initial formation process — filing the Articles of Incorporation, appointing the first board of directors, and adopting the company’s bylaws. Once the board is established, authority shifts to directors and shareholders, and the incorporator’s legal powers typically end.

In fact, many incorporators are attorneys, accountants, or business formation services who have no stake in the company beyond its formation. Ownership rights arise only from acquiring shares or membership interests, not from serving as an incorporator.

Frequently Asked Questions

  1. Can an incorporator also be a shareholder or director?
    Yes. An incorporator can also serve as a shareholder, director, officer, or registered agent, as long as they meet state requirements and the company’s governing documents allow it.
  2. Does being an incorporator mean I own the company?
    No. Incorporation alone does not grant ownership. Ownership comes from purchasing stock (in a corporation) or membership interests (in an LLC).
  3. Can I change the registered agent after formation?
    Yes. A corporation can file a change of registered agent with the Secretary of State at any time. This is a common step if the business hires a commercial registered agent service later.
  4. What happens to the incorporator’s role after the company is formed?
    Once the board of directors is appointed and the company is officially operating, the incorporator’s role typically ends, unless they also serve in another capacity.
  5. Is it better to hire a professional registered agent service?
    For many businesses, especially those without a physical presence in the state or with privacy concerns, hiring a professional service ensures compliance and helps avoid missed legal notices.

To learn more about incorporator, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.