If you’re going to incorporate, you’ll need an Incorporator. The best one available may well be you. In this post we explain what an Incorporator is, what the Incorporator has to do, and why you might be just the right person for the job.What’s an Incorporator and Why Do I Need One?
Before you decide who your Incorporator is, you’ll first have to decide in which state you want to file a Certificate of Incorporation, also called a Charter (see our post You’ll End Up Incorporating in Delaware). It is during the process of preparing and filing the Certificate of Incorporation that you’ll need to pick an Incorporator. This post uses the example of a company that has decided to incorporate in Delaware.
The purpose of the Incorporator is to manage the affairs of the company between the time when the company first incorporates and the time when the board is created, including the adoption of the company’s first bylaws. The Incorporator also appoints the company's first board members.Incorporator Responsibilities
The first responsibility of the Incorporator is to sign and send the Certificate of Incorporation to Delaware to be filed with the Secretary of State.
The Incorporator also prepares a Consent that is usually called “Consent in Lieu of Meeting of Sole Incorporator,” or “Consent of Sole Incorporator,” or “Action by Written Consent of Sole Incorporator.” Regardless of the name, this is the document where the Incorporator elects the members of the Board of Directors by Resolution, and then hands over the reins of the company by resigning from the position of Incorporator.
The role the Incorporator is very straightforward. There are no citizenship or other requirements for the Incorporator and it is a very short-term role; you can choose anyone the company trusts. First-time entrepreneurs who have not been through the process before might ask a lawyer, paralegal, or one of their early board members to be the Incorporator. Entrepreneurs who have seen how simple the process is will often choose to be their own Incorporator. There is no wrong answer. As long as the Certificate of Incorporation is filed, and the Consent of Sole Incorporator is written and signed, then the Incorporator—no matter who assumes the role—can resign and rest assured knowing they fulfilled the extent of their obligations.
Note: There are many issues you’ll need to consider when forming your company and filing your Certificate of Incorporation. For further insight, see our post Tricky Charter Questions.