What's a certificate of incorporation?
The certificate of incorporation is the document you file with a state in order to incorporate a corporation. In Delaware, you would file the certificate of incorporation with the Delaware Division of Corporations.
Certificates of incorporation are referred to in some other states as articles of incorporation. You may also hear people refer to them as charters or COIs.
Some people refer to the Delaware Division of Corporations as the Delaware Secretary of State. The Delaware Secretary of State is actually the person in charge of the Delaware Department of State, which contains the Delaware Division of Corporations.
Most startups use an online service or work with an attorney to create a certificate of incorporation.
There is a small set of nuanced, arguably minor, optimizations that startup attorneys commonly include in the certificates of incorporation they draft. Lawyers that work more with small businesses than startups may not include these optimizations. Similarly, many online services don't include those optimizations either.
At Clerky, our incorporation products contain the same standard optimizations that top Silicon Valley law firms typically include in their certificates of incorporation.
See What's typically in a startup's certificate of incorporation? to learn about other information startups put into their certificates of incorporation.
Filing a Certificate of Incorporation
Typically, startups use the same online service or law firm they worked with to create the certificate of incorporation to submit it for filing. The online service or law firm will almost always then have the startup's registered agent submit the certificate of incorporation to the Delaware Division of Corporations.1
The Delaware Division of Corporations will reject the filing if there's a problem. The most common problem is that the corporate name is already taken. On occasion, the Delaware Division of Corporations rejects filings when they shouldn't have. When that happens, having a good registered agent can be critical for working with the Delaware Division of Corporations to address their error.
As part of the filing process, we'll verify the corporate name you've chosen is available before submitting the certificate of incorporation. This helps you avoid delays by removing the need to wait for the Delaware Division of Corporations to notify us that the name is unavailable.
If your certificate of incorporation is nevertheless rejected by the Delaware Division of Corporations for other reasons, we'll review the reason for the rejection to determine if it's a mistake or not. If it's a mistake, we'll work with your registered agent and the Delaware Division of Corporations to get the filing processed.
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Though registered agents aren't required to file documents with the Delaware Division of Corporations, they almost universally do.
File-Stamped vs. Certified Copies
When the Delaware Division of Corporations files your certificate of incorporation, they'll apply a stamp to the first page, known as a file stamp. They'll then send back a PDF of your certificate of incorporation showing the file stamp. This is known as a file-stamped copy of your certificate of incorporation.
For an additional fee, the Delaware Division of Corporations can also provide what's known as a certified copy of your certificate of incorporation. Certified copies include a cover page where the Delaware Secretary of State certifies that the attached file-stamped copy is indeed the certificate of incorporation of the corporation. The cover page contains an authentication code that people can verify using an online tool from the Delaware Division of Corporations. If someone is reviewing your certificate of incorporation, certified copies provide a way for you to prove that the certificate of incorporation they're looking at isn't fake.
However, in order for someone to be able to rely on the certification, they would need to receive the certified copy directly from the Delaware Division of Corporations. Otherwise, they would run the risk that you simply took the cover page and attached it to a fake certificate of incorporation.
While many banks used to require certified copies of the certificate of incorporation in order to open a bank account for a corporation, most modern banks no longer do. Interestingly, the few banks that still require a certified copy will typically accept a PDF of the certified copy from the corporation itself, which defeats the purpose of the certified copy.2
Because certified copies would increase your cost and are rarely needed, Clerky defaults to only obtaining the file-stamped copy. If you need a certified copy though, whether at or after incorporation, just let us know and we'll help get it for you.
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Some people think there's still utility to a PDF of a certified copy because the authentication code on the cover page can be used to confirm that the certification was indeed issued by the Delaware Division of Corporations, proving that the corporation was incorporated on the specified date. However, anyone can look up the date of incorporation for any Delaware corporation using Delaware's entity search tool, so there's no need for a certified copy if that's the only objective.
After Filing
Once the Delaware Division of Corporations has filed the certificate of incorporation, your corporation starts its existence. However, the corporation can't actually do much at this point. For the most part, it can do nothing more than simply exist. In order to do more, the corporation must have a board of directors and officers.
All you need to do is incorporate.
A corporation typically can't begin operating and entering into agreements until it has a board of directors and officers.
To learn more about the steps you should take after incorporating to complete the formation process, see our Legal Concepts handbook. You may also find our help center articles about the post-incorporation setup process helpful.
