Articles of Incorporation: What They Are and What's in Them
Articles of incorporation are the short public document you file with a state to create a corporation. The corporation legally exists once the state accepts the filing. Delaware calls the same document a certificate of incorporation. If you are forming an LLC instead, you file a different document: articles of organization, or a certificate of formation in Delaware.
The filing itself is short. The decisions behind it take more thought. You need to decide whether a corporation is the right entity for you. You also need to choose the share structure you write into the document, and in Delaware that structure feeds straight into your annual tax.
What articles of incorporation contain
Every state sets its own required contents, but the core is similar everywhere. According to Delaware’s Division of Corporations, a Delaware certificate of incorporation must include:
- The corporation’s name, ending in a word such as Corporation, Incorporated or Limited, or an abbreviation like Inc. Delaware also accepts endings common outside the US, such as GmbH.
- A registered agent with a street address in Delaware, who receives legal papers and State notices for the company.
- The company’s purpose. Delaware lets you state simply that the corporation may engage in any lawful activity.
- Authorized shares and their par value, for corporations that issue stock.
- The incorporator: the name, address and signature of the person filing the document.
It also matters what the document leaves out. It does not list your shareholders or what percentage each one owns, and it does not say how the board meets or votes. Ownership is recorded when shares are issued, and internal rules go in the bylaws.
The certificate is public. Anyone can see the name, registered agent and incorporator details you put on it.
The Delaware Division of Corporations’ filing fee for a certificate of incorporation starts at $109 and rises with the amount of stock the corporation authorizes.
Why the choices in the document matter
Your authorized shares drive Delaware’s franchise tax
Founders often miss this. Every Delaware for-profit corporation files an annual report and pays franchise tax by March 1 each year. Delaware’s franchise tax calculation starts from the number of shares your certificate authorizes. A large share count can produce a much bigger bill than a small startup expects.
Delaware offers a second method based on the company’s gross assets and the shares it has actually issued. You pay whichever method gives the lower tax. For a young company with few assets, the second method is often much lower. So the number of shares you authorize at formation affects your costs every year, not just on filing day.
Example: a founder authorizes 10 million shares at a very small par value, a common setup for a startup planning to raise venture capital. Her first franchise tax notice is calculated on those authorized shares, and the figure looks alarming. Recalculated on her actual assets and issued shares, the tax can drop sharply. Her share count was fine. She just needed to know which method to report under. A qualified tax professional can run both calculations for your company.
Changing it later takes a formal amendment
Want more shares, a new class of stock or a different name? Each change means amending the certificate. That generally needs approval from the board and the stockholders, plus a new filing with the State. It is better to settle share structure and governance before you file. Delaware’s own guidance says the same and recommends getting legal advice on capital structure and board makeup early.
How it works in practice
Forming a corporation follows the same broad order in most states:
- Choose the name and confirm it is available in the state where you incorporate.
- Appoint a registered agent in that state.
- Prepare and file the articles (in Delaware, the certificate of incorporation) and pay the state fee.
- Organize the company once the state accepts the filing. The incorporator or first board adopts bylaws, appoints officers and issues shares to the founders.
- Get an EIN, the company’s federal tax ID number. The IRS issues it; check the IRS’s EIN page for current timing.
Incorporating does not give you a license to operate. Delaware’s Division of Corporations states that a new company still needs the licenses, permits and registrations required wherever it has sales, employees or physical assets. If your Delaware corporation operates in another state, it will usually need to register there as an out-of-state company too.
You can file the certificate yourself. Expert help pays off in getting the share structure, name and registered agent details right the first time, because a mistake means filing an amendment later. If you would rather hand it off, you can start a Delaware corporation formation with IncReg.
Who needs articles of incorporation, and who doesn’t
You need them to form any kind of corporation. That includes a for-profit C-Corp, a corporation that will later choose S corporation tax status, and a nonprofit corporation. Nonprofits file articles too, but tax-exempt status is a separate application to the IRS.
You don’t need them if you are forming an LLC, running a sole proprietorship or operating as a general partnership. An LLC files its own formation document, and a sole proprietorship files nothing with Delaware’s Division of Corporations.
The trade-offs of incorporating
A corporation is not the best structure for everyone. Before you file, weigh these:
- Double taxation. According to the IRS, a C corporation’s profit is taxed to the company when earned and taxed again to shareholders when paid out as dividends.
- More formalities. A corporation needs a board, officers, bylaws, records of major decisions, and an annual report with franchise tax.
- Two states’ paperwork. A Delaware corporation that operates in another state has to keep up filings in both states.
Say your business will only operate in your home state and you don’t plan to raise outside investment. Then a corporation or LLC formed in your home state is usually simpler. If you want pass-through taxation and flexible management, an LLC usually fits better than a corporation. A Delaware C-Corp makes the most sense if you plan to raise equity from investors, issue stock options, or one day sell or list the company.
| Your situation | Usual fit | Document you file |
|---|---|---|
| Raising venture capital or granting stock options | Delaware C-Corp | Certificate of incorporation (Delaware) |
| Want pass-through taxes and flexible management | LLC | Articles of organization, or a certificate of formation in Delaware |
| Operating only in your home state, no outside investors | Corporation or LLC in your home state | That state’s articles of incorporation or organization |
| Running a charity or other nonprofit | Nonprofit corporation | Articles of incorporation, plus a separate IRS exemption application |
| Working solo, testing an idea, little liability risk | Sole proprietorship, for now | No formation document with the state |
Articles of incorporation vs. similar documents
People often mix up these five documents. Here is how they differ:
| Document | What it does | Filed with the state? | Public? |
|---|---|---|---|
| Articles of incorporation | Creates a corporation | Yes | Yes |
| Certificate of incorporation | Delaware’s name for the same document; in some states, the certificate the state issues to confirm the filing | Yes | Yes |
| Articles of organization / certificate of formation | Creates an LLC | Yes | Yes |
| Bylaws | A corporation’s internal rules: board, officers, meetings, voting | No | No, kept with company records |
| Operating agreement | An LLC’s internal rules: ownership, management, profit sharing | No | No, kept with company records |
Certificate of incorporation. In Delaware, the certificate is the document you file, not a separate certificate the State issues afterward. Some states use “articles” for what you file and “certificate” for the state’s confirmation. Either way, the filed document is your corporation’s charter.
Bylaws. Bylaws sit underneath the articles. They cover how directors are elected, how meetings are called and what officers do. They are adopted after the state accepts the filing, are never filed with the state, and can’t contradict the articles. IncReg includes a Bylaws template in the Standard and Premium corporation plans, and Starter can add it for $89.
Frequently Asked Questions
How do I get my Articles of Organization for my LLC?
Your LLC’s articles of organization are the document filed with the state when the LLC was formed; in Delaware it’s called a certificate of formation. You should have received a copy as filed. If you can’t find it, you can order a certified copy from the state where the LLC was formed.
Are articles of incorporation public?
Yes. The name, registered agent and incorporator details are public record. Shareholder names and ownership percentages are not part of the document.
Do I need a lawyer to file articles of incorporation?
Delaware doesn’t require one. The filing is simple, but the choices behind it are hard to change later, especially share structure and board setup. That’s why many founders have a lawyer review those decisions before filing.
Can I change my articles of incorporation after filing?
Yes, by filing an amendment with the state. In Delaware, that generally needs board and stockholder approval first.
Related guides
Have a question about your specific situation? Contact us. This article is for informational purposes only and does not constitute legal or tax advice.
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