Role of the Incorporator in Articles of Incorporation

Key Takeaways

• An incorporator is the person or entity who signs and files the Articles of Incorporation to legally create a corporation.
• Incorporators are responsible for initiating the formation process but have no ongoing role unless they also serve as officers or directors.
• States typically require at least one incorporator, and this person can be an individual, law firm, or other legal entity.
• The incorporator must provide accurate information, sign the documents, and sometimes call the first organizational meeting.
• Incorporators differ from registered agents, who are designated to receive legal documents on behalf of the corporation.

Who is incorporator in Articles of Incorporation? When you are starting a business, it's important to understand the purpose of incorporation, the role of incorporators, and the best way to form a corporation.

What Is the Purpose of Incorporation?

Incorporating a business is a requirement for the business to have the structure of a corporation.

What Is Articles of Incorporation?

Articles of Incorporations is a document filed with a state business filing agency to register a business as a corporation.

What Information Should the Articles of Incorporation Include?

Typically, the document requires only basic information about the business, but the requirements vary from state to state.

Is a Registered Agent Required?

All states require an in-state registered agent when you want to file for a corporation.

How Is a Corporation Formed?

A corporation is formed when the state accepts its Articles of Incorporation filed by the incorporators.

What Is the Purpose of the Articles of Incorporation?

The Articles of Incorporation acts as a legally binding contract between the corporation, its shareholders, and the incorporating state, and spells out the rights and responsibilities of each party.

What Are the Other Names for Articles of Incorporation?

Articles of Incorporation is referred to as Certificate of Incorporation in Delaware, and other states may also have different names for it.

In What Agency Should the Articles Be Filed?

Typically, Articles of Incorporation are filed to the secretary of state, but it can also be another agency in some states.

What Information Should the Article of Incorporation Include?

The basic information which should be in the Articles include:

• The name and business address of the corporation.
• The number of authorized shares and the face value of the shares, where applicable.
• The name and address of the in-state registered agent.
• The names and addresses of the incorporators.
• In companies that will have more than one class of shares such as Dual Class structure corporations, the Articles need to state the number of authorized shares for each class as well as the rights of each class of shares.

In some states, the Articles must also cover the following information:

• The purpose of the corporation.
• The number of initial directors.
• The names and addresses of the initial directors.
• The duration of the corporation.

Where Can I Get Information About Starting a Corporation?

You can find information regarding the requirements for starting a corporation on the website of the state secretary of state offices.

Can the Articles of Incorporation Be Customized?

States permit Articles to modify specific rules called default rules, which are normally applicable to the corporation, but they still have to be consistent with state legislation.

What Is an Example of a Customized Articles?

For example, a state can have a default rule which provides that the directors and shareholders of a corporation can recruit new directors. The state can also allow the corporation to restrict filling of vacancies to shareholders only.

Should I Customize the Articles of Incorporation?

Articles can be customized to protect the interests of the owners using optional provisions in the document.

Should the Incorporator Be a Shareholder or Director? 

The incorporator does not need to be a shareholder or a director. However, in many small businesses or startups, the founders often act as incorporators. In larger or more formalized formations, especially those handled by law firms, the incorporator might be a third-party legal or business service. After incorporation, shareholders or directors take over responsibilities for managing the corporation.

Who Is an Incorporator?

An incorporator, or promoter is a person, association, or corporation who performs the process of incorporation. The incorporator has to sign and file the articles of incorporation before the corporation can be registered. The role of an incorporator in the business stops after the corporation is created.

Who Can Be an Incorporator?

Incorporators tend to be the owners of the corporation. However, they may also be from the law firm in charge of incorporating the business.

What Are the Legal Requirements to Be an Incorporator? 

To be an incorporator, a person must generally be at least 18 years old and legally competent to enter into contracts. In most states, there is no requirement for the incorporator to be a resident or citizen of the state where the corporation is being formed. Both individuals and legal entities (such as law firms, accounting firms, or formation services) can act as incorporators. Some states allow multiple incorporators, while others only require one.

What Are the Responsibilities of an Incorporator?

The responsibilities of the incorporator include preparing and filing the articles of incorporation to establish a new corporation with a state. The incorporator attaches his contact details and signature to the papers and verifies that the information contained therein is authentic. He will also be the point of contact if the state rejects the filing or additional documentation is required.

Can the Incorporator Be Held Liable? 

In general, incorporators are not personally liable for the corporation’s debts or legal obligations. Their role is administrative and concludes after the entity is officially formed and governance is handed off to the directors. However, an incorporator could be liable if they provide false information or commit fraud during the filing process.

What Happens After the Incorporator Files the Articles? 

Once the Articles of Incorporation are filed and approved, the incorporator’s job is typically complete. However, before fully stepping away, the incorporator may be responsible for:

• Holding the first organizational meeting (if not waived)
• Appointing the initial board of directors (if not named in the Articles)
• Adopting corporate bylaws
• Authorizing the issuance of shares

After these steps, control is transferred to the board and officers, and the incorporator usually has no further involvement unless they continue in another role.

How Many Incorporators Should a Corporation Have?

States require a minimum of one incorporator to handle incorporation processes, and some require three.

Who Can Be an Incorporator?

Only persons of 18 years and above can be an incorporator, and some state also requires the person to be resident in the state. The person can be the owner or director of the corporation. An incorporator can be anybody qualified to file paperwork on behalf of the corporation. Individuals, attorneys, accountants, third parties, trusts, partnerships, and associations can all be incorporators.

Incorporator vs. Registered Agent: What's the Difference? 

An incorporator is responsible for filing the legal documents to create the corporation, while a registered agent is designated to receive legal correspondence on behalf of the corporation. Here’s a breakdown of the differences:

Frequently Asked Questions

• Can the incorporator also be the registered agent?
  Yes, in many states an individual can serve as both the incorporator and the registered agent, provided they meet residency and availability requirements.
• Is the incorporator's name publicly visible?
  Yes. The name and contact information of the incorporator typically appear on the Articles of Incorporation, which are public records.
• Can a business formation service be the incorporator?
  Absolutely. Many business owners use third-party services or law firms to handle the incorporation process, with the service listed as the incorporator.
• What is the incorporator's role in the first corporate meeting?
  The incorporator may call or organize the first meeting where the initial board of directors is appointed, and the bylaws are adopted.
• Can I change the incorporator after filing?
  No, the incorporator is part of the original filing. However, their role ends after incorporation, and their continued involvement isn't necessary unless they take on another role.

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