Documents You Need Notarised When Transferring Shares Overseas

People in Australia end up needing to transfer shares across a border for all sorts of reasons: shares in a foreign company left to them in a will, an employee share plan from a former overseas employer, a stake in a family company back home, or a sale of an Australian company's shares to a buyer abroad. The paperwork depends almost entirely on how the shares are held — and in one very common case, what the foreign registry asks for is something a notary cannot provide at all.

First: 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, and 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 on the register, 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.

Shares on a US register: the medallion problem

This deserves its own section because it catches so many Australians.

To transfer shares held directly on a United States register, transfer agents commonly require a Medallion signature guarantee: a stamp from a financial institution that participates in a US medallion program, guaranteeing that the signature is genuine and that the signer has authority to transfer the shares.

A Medallion guarantee is not a notarial act, and an Australian notary cannot provide one. Nor can a US notary. It comes only from participating institutions, and few, if any, Australian banks are among them.

What to do:

• Ask the transfer agent what it accepts from holders outside the US. Some have alternatives for overseas shareholders — for example, a signature guaranteed by a local bank together with a notarised signature, or an affidavit, sometimes only below a value threshold. The rules are the agent's own.
• 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 part the notary does: you sign in front of them, they confirm your identity, and the document may need an apostille — ask the agent.

Shares in a private company abroad

A share transfer in a private company is governed by the law of the country where the company is registered and by the company's own constitution or articles, which may give other shareholders 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 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. See our page on notarising a power of attorney.

Either way, get the documents from a lawyer in the company's country, bring them unsigned to the notary with your passport, and expect them to go to DFAT afterwards: an apostille if the country is an Apostille Convention member, checked against the HCCH status table on the day, or DFAT authentication and legalisation at its embassy if not.

The company or registry may also 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 will need evidence of the company's existence and your authority; see notarising for a company rather than an individual.

Shares in 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 their bank may want documents from the Australian seller — 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.

Inherited shares

If you are transferring shares because the holder died, the registry will usually want the death certificate and evidence of who is entitled — a grant of probate, or the foreign equivalent — before registering the shares to you. That process is described on our page about inheriting an estate overseas.

Tax

A transfer may trigger tax in the company's country, in Australia, or both — capital gains, withholding or stamp duty. Speak to a tax adviser before the transfer, particularly for a sale.

Frequently asked questions

Can a notary certify my signature as genuine for the transfer agent? A notary witnesses you signing and confirms your identity. That is not a signature guarantee, and a registry that requires a Medallion guarantee will not treat it as one unless it says so.

Can a Justice of the Peace witness the transfer form? For a form going overseas, generally not. A JP's certification is not recognised abroad and cannot be apostilled.