Documents You Need Notarised When Transferring Shares Overseas

What you notarise for an overseas share transfer depends on how the shares are held. Shares with a broker usually need nothing notarised. A private company abroad may need a transfer form or a power of attorney signed before a notary here, then an apostille. Shares on a US register often need a Medallion guarantee, which no notary can give.

Key takeaways

• Find out first how the shares are held: with a broker, directly on a register, in a private company, or in an Australian company.
• Shares held through a broker or custodian usually move on your instruction, with nothing to notarise.
• A Medallion signature guarantee is not a notarial act. An Australian notary cannot provide one. Ask the transfer agent what it accepts instead.
• Where a transfer must be made before a notary of that country, you sign a power of attorney here instead.
• Bring the foreign lawyer's documents unsigned, with your original passport.
• Transfers can raise tax, duty and foreign investment questions in both countries. Get advice before signing.

Why do share transfers cross borders?

People in Australia end up transferring shares across a border for many reasons. Shares in a foreign company may be left to them in a will. A former overseas employer may have given them shares under an employee share plan. They may hold a stake in a family company back home. Or an Australian company's shares may be sold to a buyer abroad.

The paperwork depends almost entirely on how the shares are held. In one very common case, what the foreign registry asks for is something a notary cannot provide at all. So start with the question below, before booking anyone.

How are the shares held?

Find this out before anything else:

• Through a broker or custodian. If the shares sit in a brokerage or custody account, the broker transfers or sells them on your instruction. There is usually nothing to notarise. Check this first; it resolves many cases.
• Directly on a foreign company's register. Listed shares held in your own name, often administered by a share registry or transfer agent. The registry sets the document rules.
• In a private company abroad. Shares in an unlisted company, transferred under that country's company law and the company's own rules.
• In an Australian company, to or from someone overseas. The Australian side is usually simple; the overseas party's side may not be.

Why is a US register a special problem?

This catches many Australians. To transfer shares held directly on a United States register, transfer agents commonly require a Medallion signature guarantee. It is a stamp from a financial institution in a US medallion program. It guarantees that the signature is genuine and that the signer has authority to transfer the shares.

A Medallion guarantee is not a notarial act. An Australian notary cannot provide one, and nor can a US notary. It comes only from participating institutions, and most Australian banks do not participate. Ask your bank, but do not expect it. Our page on Medallion signature guarantees in Australia explains the problem in full.

What you can do:

• Ask the transfer agent what it accepts from holders outside the US. Some have alternatives for overseas shareholders. Examples include a notarised signature with other evidence, or an affidavit, sometimes only below a value set by the agent.
• Consider moving the shares to a broker first. Transferring directly held shares into a brokerage account can be simpler than a registry transfer, depending on the broker and the agent.

If the agent's alternative involves your signature being notarised, that is the notary's part. You sign in front of the notary, who confirms your identity. The document may then need an apostille; ask the agent.

How do private company transfers work abroad?

A share transfer in a private company is governed by the law of the country where the company is registered. It is also governed by the company's own constitution or articles, which may give other shareholders the first right to buy. The formalities vary widely.

• In some countries, a simple transfer form signed by both parties is enough, sometimes with a witness.
• In others, particularly many civil law countries, the transfer must be made before a notary of that country. An Australian notary cannot substitute for that local notary. Instead, you sign a power of attorney in Australia authorising someone to execute the transfer for you there.

Either way, get the documents from a lawyer in the company's country. The steps then run like this:

1. The lawyer drafts the transfer form or power of attorney in the local form.
2. You read it, and get a translation if it is in a language you do not read.
3. You sign it before a notary in Australia, with your original passport, bringing it unsigned.
4. DFAT adds an apostille, or authentication for embassy legalisation if the country is not a Hague party.
5. You post the original to the lawyer, who completes the transfer locally.

See our page on notarising a power of attorney for the notarial detail.

Apostille or embassy legalisation?

If the company's country is a party to the Hague Apostille Convention, DFAT issues an apostille, confirming the notary's signature and seal. If not, DFAT issues an authentication certificate and the country's embassy or consulate in Australia legalises the document. Check the HCCH status table on the day. DFAT currently takes documents by appointment or by registered post; see its legalisation page. Our apostille and authentication page explains the DFAT step.

What if you are acting for an Australian company?

The company or registry may want a certified copy of your passport and evidence of your address. If you are transferring on behalf of an Australian company rather than personally, the notary needs more. That usually means evidence of the company's existence, such as an ASIC extract, and your authority to sign, such as a board resolution. DFAT can legalise ASIC documents directly as originals. See notarising for a company rather than an individual.

How the shares are held	Who sets the rules	Notary's usual part
Broker or custodian	The broker	Usually none
US register, direct	The transfer agent	Only if it accepts an alternative
Other foreign register	The registry	Witnessing the transfer form
Private company abroad	Local law and the articles	Transfer form or power of attorney
Australian company	Australian law and the constitution	Usually none for Australian use

What about an Australian company with a party overseas?

A transfer of shares in an Australian proprietary company is usually done on a standard transfer form and recorded in the company's register. For Australian purposes, that form does not normally need notarising.

The overseas party signs where they are. If they are the buyer, their own country or bank may want documents from the Australian seller, such as a notarised signature or certified company records. Foreign investment rules may also apply to some transfers to foreign buyers, and duty may be payable. Get legal and tax advice on both before signing.

What if the shares were inherited?

If you are transferring shares because the holder died, the registry usually wants the death certificate and evidence of who is entitled. That is typically a grant of probate or the foreign equivalent, before the shares are registered to you. Some registries have simplified processes for small holdings. That process is described on our page about inheriting an estate overseas.

What tax questions should you ask?

A transfer may trigger tax in the company's country, in Australia, or both. It may involve capital gains, withholding or stamp duty. Speak to a tax adviser before the transfer, particularly for a sale. A notary witnesses your signature and does not advise on tax or on whether the transfer is valid. For validity and company-law questions, see a lawyer in the company's country.

Can a JP witness the transfer form?

For a form going overseas, generally not. A Justice of the Peace is a volunteer witness for Australian purposes. A JP's certification is not recognised abroad, and DFAT cannot apostille it. Follow the registry's or the foreign lawyer's written instructions. The receiving authority decides whose witnessing it accepts.

Here is an illustration, not a real case

A man in Perth holds a quarter of the shares in his family's private company in Portugal. He is selling them to his brother. The Portuguese lawyer explains that the transfer is formalised before a Portuguese notary, and sends a power of attorney in Portuguese and English. He signs it before a notary in Perth with his passport. DFAT adds an apostille. His brother's lawyer signs the transfer for him in Lisbon, and both brothers take tax advice in their own countries.

In short

Start with how the shares are held. With a broker, there is usually nothing to notarise. A US register usually wants a Medallion guarantee, which no notary can give, so ask the agent about alternatives. A private company abroad needs the local lawyer's form or power of attorney, signed before a notary here, then DFAT. Take tax advice before signing. Our powers of attorney page explains the notarial step.

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Transferring shares across a border? Send us the registry's or lawyer's instructions, and we will explain each step before you book.