The Delaware Certificate of Incorporation and the Role of the Incorporator
When forming a Delaware corporation, one of the key documents required is the Certificate of Incorporation, which is filed with the Delaware Division of Corporations. This document establishes the corporation’s existence and sets forth its basic structure, such as the company’s name, registered agent, and authorized shares. However, one of the lesser-known yet crucial aspects of incorporation is the role of the Incorporator.
Although this role is generally temporary, the incorporator performs several important tasks that establish the company’s legal existence and help transfer authority to its first directors. Understanding who can serve as an incorporator, what responsibilities the position carries, and when the role ends can make the formation process easier to navigate.
What is an Incorporator?
The Incorporator is the individual or entity responsible for preparing, signing, and filing the Certificate of Incorporation with the State of Delaware. This is a crucial role in the formation of a corporation, as it ensures that the necessary legal steps are taken to establish the company.
Note that serving as the incorporator does not automatically make someone an owner, shareholder, director, or officer of the corporation. The position is generally temporary and limited to formation-related responsibilities. After the initial directors have been appointed and organizational authority has been transferred to the board, the incorporator’s role usually comes to an end.
Who Can Be an Incorporator?
Delaware allows considerable flexibility when selecting an incorporator. Under the Delaware General Corporation Law, an incorporator may be an individual or a legal entity, such as a partnership or another corporation. A company may also have more than one incorporator. The incorporator does not need to live in Delaware or maintain an office in the state.
In many cases, one of the company’s founders serves as the incorporator. Other businesses will choose an attorney or registered agent service to handle the role instead. Using an experienced third party can help ensure that the Certificate of Incorporation is prepared correctly, signed by an authorized party, and submitted according to Delaware’s filing requirements. Regardless of who serves, the incorporator’s authority is generally limited and temporary. Serving as incorporator does not automatically provide ownership or management rights in the corporation.
Incorporate your business the easy way!
Let us help you figure out the right type of corporation for your business and guide you through the process.
Create my corporation
Responsibilities of an Incorporator
Although the incorporator’s role is temporary, it includes several important responsibilities that help establish the corporation and prepare it for internal operation. Together, these steps help transfer authority from the incorporator to the corporation’s board of directors.
- Reviewing and Signing the Certificate of Incorporation – The incorporator ensures the document is properly completed before submission.
- Appointing Initial Directors – Once the corporation is formed, the incorporator will appoint the initial director(s) of the corporation. These directors serve until successors are elected and qualified internally.
- Approving Initial Bylaws – The incorporator approves the initial corporate bylaws, which will be maintained internally within the company.
- Issuing the Statement of the Incorporator – This document records the appointment of initial directors and is provided to the corporation. However, it is not filed with the Delaware Division of Corporations and does not become part of the public record.
Preparing & Filing a Delaware Certificate of Incorporation
Preparing and filing the Certificate of Incorporation is the defining act that breathes life into your company. Drafted and signed by the incorporator, this foundational document establishes your business as a legal entity in Delaware. Once prepared, the incorporator submits the document to the Delaware Division of Corporations along with the required state filing fee. The moment Delaware officially approves that document, your corporation will exist, and the incorporator’s primary duty is officially complete.
The End of the Incorporator’s Role
Once the corporation is officially formed and the initial directors are named, the Incorporator's role is complete. At this point, the company is governed by its board of directors and officers, who oversee its operations in accordance with the Certificate of Incorporation and bylaws.
The incorporator does not normally retain any continuing authority or responsibility after this transition. Serving as incorporator also does not automatically make that person or entity a shareholder or employee of the corporation. Any continued involvement must arise from a separate appointment or service agreement.
FAQs
When does a Delaware corporation legally come into existence?
A Delaware corporation generally comes into existence when its Certificate of Incorporation becomes effective. In many cases, this is the date and time the Delaware Division of Corporations accepts the filing.
Is an incorporator an owner?
No. An incorporator is responsible for completing certain formation-related tasks, but that role does not automatically provide ownership in the corporation. Ownership comes from holding shares of stock. An incorporator may also be a shareholder, director, or officer, but only through a separate appointment or stock issuance.
Do incorporators need to live in Delaware?
No. An incorporator does not need to live in Delaware or maintain a business address in the state. The incorporator may be an individual or eligible entity located elsewhere. However, the corporation itself must appoint and continuously maintain a registered agent with a physical registered office in Delaware.
Form a Corporation with HBS
Harvard Business Services, Inc. has been helping clients form Delaware corporations since 1981. With decades of experience, we have streamlined the process to make it fast and efficient. Our direct imaging system, linked to the Delaware Division of Corporations, allows us to process filings quicker than the general public. We have also served as a Delaware Registered Agent since 1981, ensuring businesses remain compliant with state regulations.
We’re also pleased to share that Harvard Business Services, Inc. will now sign the Certificate of Incorporation for clients who choose one of our formation packages. This ensures that clients can form a Delaware corporation quickly and efficiently while keeping their personal information off publicly filed documents.
To form your new corporation now, visit www.delawareinc.com/order or contact Harvard Business Services, Inc. at 1-800-345-2677 for additional information on forming a Delaware corporation.
*Disclaimer*: Harvard Business Services, Inc. is neither a law firm nor an accounting firm and, even in cases where the author is an attorney, or a tax professional, nothing in this article constitutes legal or tax advice. This article provides general commentary on, and analysis of, the subject addressed. We strongly advise that you consult an attorney or tax professional to receive legal or tax guidance tailored to your specific circumstances. Any action taken or not taken based on this article is at your own risk. If an article cites or provides a link to third-party sources or websites, Harvard Business Services, Inc. is not responsible for and makes no representations regarding such source’s content or accuracy. Opinions expressed in this article do not necessarily reflect those of Harvard Business Services, Inc.