Removing a Deceased Incorporator in a Non-Stock Non-Profit Corporation (Philippine Context)

Disclaimer: The following discussion is for general informational purposes only and is not intended as legal advice. For specific guidance, consult a qualified attorney or refer directly to the regulations of the Philippine Securities and Exchange Commission (SEC) and the Revised Corporation Code of the Philippines.

1. Background: Incorporators in Philippine Corporate Law

1.1. Definition of Incorporators

Under the Revised Corporation Code of the Philippines (Republic Act No. 11232), “incorporators” are those individuals (or juridical persons in certain cases) who originally form and execute the Articles of Incorporation (AoI) and formally organize the corporation. Their names and signatures appear in the AoI filed with the SEC.

For non-stock, non-profit corporations, incorporators are those who bind themselves to form the organization primarily for charitable, religious, educational, cultural, or other lawful purposes. Although the Revised Corporation Code introduced new rules (e.g., the possibility of a one-person corporation for stock corporations), non-stock corporations typically require at least two (2) incorporators.

1.2. Historical vs. Ongoing Role

An incorporator’s name is historically tied to the birth of the corporation. Over time, incorporators may cease to be members or directors. In practice, once the corporation is validly formed, an incorporator’s role can shift from “incorporator” to ordinary “member” (in a non-stock setup), or they may even exit the corporation entirely. However, the fact that someone was an “incorporator” remains a matter of record: it reflects who founded the corporation.

2. When an Incorporator Passes Away

2.1. Effect of Death on Membership

In non-stock, non-profit corporations, membership typically does not carry transferable ownership (as there are no “shares” to speak of). Whether membership rights are extinguished at death or pass to heirs can depend on the corporation’s bylaws. Most commonly, membership rights end upon death unless the bylaws or internal rules provide otherwise.

2.2. Ongoing Corporate Existence

A corporation has a separate juridical personality from its members. The death of an incorporator does not affect the corporate existence as long as the number of members remains within statutory requirements (e.g., minimum number for a non-stock corporation). If the corporation still meets legal requirements for membership, there is no threat to its existence—only the need to update records and possibly appoint or elect a replacement member or trustee (director).

3. Reasons for Removing a Deceased Incorporator’s Name

It might initially sound like “removing” a deceased incorporator’s name from corporate records is required. However, there are nuances:

Historical Record: By law, the Articles of Incorporation reflect the identities of the original incorporators. You generally do not erase or delete these names from the historical document.
Current Active Roster: Internal corporate documents such as the membership registry, the General Information Sheet (GIS) submitted yearly to the SEC, and other official records need to be updated to reflect the deceased member’s status.

Most often, you will not literally remove the deceased incorporator’s name from the AoI. Instead, you document their passing and update the membership and corporate leadership roster accordingly. That said, there are circumstances where an amendment to the AoI might be filed if the corporation wants to reflect changes in certain key provisions (e.g., reducing or adjusting the minimum number of incorporators or aligning corporate structure with the new membership situation).

4. Process for Updating Corporate Records

4.1. Internal Resolutions

Board or Members’ Resolution: The board of trustees (or the membership, depending on the bylaws) should adopt a resolution noting the death of the incorporator and confirming the cessation of that individual’s membership (if membership is not transferable).
Election or Appointment of a Replacement: If that deceased incorporator was also serving as a trustee (or director), the remaining board or membership typically elects or appoints a replacement in accordance with the bylaws.

4.2. Update the General Information Sheet (GIS)

Every corporation must file an annual GIS with the SEC, disclosing current officers, trustees, and members. When filing for the year in which the incorporator passed away, or in the next immediate filing:

Mark the Deceased Member accordingly (some GIS forms allow special notation for death or cessation of membership).
Provide the Name of the Replacement (if any) in the trustees’ or officers’ portion of the GIS.

4.3. Amending the Articles of Incorporation (If Necessary)

Technically, a deceased incorporator’s name remains in the historical AoI as an original incorporator. However, certain scenarios may prompt an amendment:

Change in Purposes or Corporate Structure: If the corporation decides to amend its primary purpose, term, or other fundamental matters, an amendment may be filed. In doing so, some entities also opt to clarify the new lineup of members, but usually, the original incorporators’ names still appear.
Reduction in Number of Incorporators (if that was a compliance issue): Under the old Corporation Code, a minimum of five (5) incorporators was required. Under the Revised Corporation Code, two (2) are allowed for non-stock corporations. If the death of an incorporator results in the corporation wanting or needing to reflect fewer incorporators, the SEC may allow an amendment. Still, removing a name from the “original incorporators” list is not typical; the amended AoI will state any relevant new composition while noting that certain incorporators have passed away.

Procedure for amendment involves:

Drafting the Amended AoI with the required changes.
Securing approval of the amendment by the board of trustees and the members (in accordance with the bylaws or a supermajority vote requirement, typically two-thirds (2/3) of the members).
Filing with the SEC using the prescribed forms, paying the filing fees, and awaiting the Certificate of Filing of Amended Articles of Incorporation.

4.4. Updating Membership and Other Internal Registers

Membership Registry: If your by-laws or internal policy require a membership registry or roll, remove or annotate the deceased member’s name and record the date of death.
Trustee/Officer Registry: If the deceased incorporator held an officer position, update that register and appoint a new officer in compliance with the bylaws.

5. SEC Requirements and Documentary Compliance

Board/Members’ Resolution: The SEC does not always require a specific resolution for the passing of a member, but the corporation should keep a copy in its records and, if necessary, attach it to the GIS or supporting documents for clarity.
GIS Filing: A corporation must ensure that each year’s GIS reflects the current roster. If the incorporator died before or during the year, the GIS must state that individual’s status accordingly.
Bylaws Provisions: Some non-stock corporations adopt detailed bylaws for membership succession. If your bylaws provide for “Honorary Membership” or “Posthumous Recognition,” these details should be consistently applied.
Certificate of Filing of Amended Articles (If amended): If you proceed with an amendment to the Articles, the SEC will issue a new certificate indicating that the amendments have been approved.

6. Practical Considerations

Historical Versus Present-Day Records
It is important to differentiate between “who founded the corporation” and “who are the current members or trustees.” The Articles of Incorporation cannot simply erase the historical fact of incorporation.
Succession Plans
For non-stock corporations heavily reliant on key individuals (e.g., founders of a foundation), it is advisable to have clear internal succession plans in the bylaws or a board resolution clarifying who takes over certain roles if key incorporators pass away.
Legal Counsel
Especially if the non-stock corporation has significant assets, real property, or receives large donations, it is best practice to consult an attorney to ensure compliance when an incorporator or key member passes away.
Impact on Quorum and Voting
The death of an incorporator who is also a voting member can affect quorum calculations. Update membership tallies to ensure your general or special meetings still meet the required majority thresholds.
Honorary Titles or Legacies
Some organizations choose to continue reflecting the deceased incorporator’s contributions by designating them as a “founder” or “emeritus” in organizational literature or websites. While this is a matter of corporate culture rather than strict legal requirement, it is frequently done out of respect for the deceased’s role in establishing the entity.

7. Frequently Asked Questions

Q1: Is it mandatory to file an Amended Articles of Incorporation with the SEC when an incorporator dies?
A1: Not necessarily. The name of the deceased incorporator typically remains in the original AoI as a historical fact. What is required is to update the annual GIS and membership/trustee records. However, if the corporation decides to amend other fundamental aspects of its AoI—or if compliance with certain membership minimums is implicated—an amendment may be necessary.

Q2: Can another person inherit the membership of a deceased incorporator?
A2: In non-stock corporations, membership generally terminates upon death unless your bylaws explicitly provide for transfer or continuation of membership. In practice, heirs do not automatically “inherit” membership unless the bylaws allow it.

Q3: What happens if the death of an incorporator brings the membership below the minimum required by law?
A3: Under the Revised Corporation Code, non-stock corporations generally can have at least two (2) members. If the death of an incorporator causes the number of members to drop below two, the remaining member(s) must take steps to add or elect new members to maintain compliance. Failure to do so can result in potential revocation of the corporate certificate.

Q4: Does the SEC impose penalties for not removing the deceased incorporator from the AoI?
A4: There is no penalty for keeping a deceased incorporator’s name in the original AoI—indeed, it is required as a historical record. The critical requirement is to keep your GIS and membership records accurate and up to date.

8. Conclusion

In summary, removing a deceased incorporator’s name from a non-stock, non-profit corporation’s records in the Philippines is more about updating and clarifying current membership and trustee rosters rather than literally deleting that incorporator’s name from the historical Articles of Incorporation. You will need to:

Document the passing through a board or membership resolution (if applicable).
Reflect the change in the annual General Information Sheet (GIS) filed with the SEC.
Ensure compliance with your bylaws regarding membership, succession, and board replacements.
Amend the Articles of Incorporation only if there is a need to modify fundamental corporate information or to comply with the membership minimum requirements.

Keeping accurate records not only satisfies SEC regulations but also maintains transparency within the organization. When in doubt, consult with legal counsel for guidance on the specifics of your corporation’s structure and bylaws.