How to Notarise a Trust Deed in Australia

To notarise a trust deed in Australia, you bring the original signed deed to a notary, who certifies a complete copy, and DFAT then apostilles or authenticates it for overseas use. The harder part: the deed alone rarely answers the overseas body's question. Expect to add every variation, every change of trustee, and proof of who controls the trust today.

Key takeaways

• An overseas bank or registry wants to know who controls the trust now. The original deed shows only who did when it was signed.
• Expect to certify the whole chain: the deed, every deed of variation, every appointment or retirement of trustees, and the corporate trustee's current records.
• The notary must sight each original. Originals are often held by the accountant or solicitor who set the trust up.
• A notary certifies copies and witnesses signatures. A notary never confirms that the trust is valid, that duty was paid, or who the beneficiaries are entitled to be.
• For overseas use, a Justice of the Peace's certification is not recognised and cannot be apostilled.

Why does an overseas body want to see a trust deed?

Trust deeds end up in front of a notary when a trust has to prove itself to someone overseas. The usual reasons are practical:

• A foreign bank opening an account for a family trust wants to see the deed before it will deal with the trustee.
• A foreign company registering a trust as a shareholder wants to know who can sign for it.
• A foreign land registry wants to know who holds title and on what terms.
• A foreign court or tax office wants to understand an arrangement it may have no equivalent for.

That last point matters more than it looks. Many civil-law countries have no trust in their own law. Their officials may not know what a trustee, an appointor or a discretionary beneficiary is. Sending a complete, well-organised bundle saves a round of questions.

Why is the deed on its own not enough?

A trust deed records how the trust was set up: the original trustee, the beneficiaries or classes of beneficiary, the trustee's powers and how the deed can be changed. It is signed once, often many years ago. Since then, trustees may have retired and been replaced, the deed may have been varied, and a corporate trustee may have changed directors.

An overseas bank doing identity checks wants to know who controls the trust today. Expect to need certified copies of:

• the original trust deed, complete, including schedules;
• every deed of variation, in date order;
• every deed of appointment or retirement of trustees;
• if the trustee is a company, a current company extract and, often, identification for its directors;
• identification for each individual trustee, and sometimes for the appointor or the main beneficiaries.

A certified copy of the original deed sent alone is one of the most common reasons these applications stall. The receiving body asks for the next document, then the next, and each round adds another trip to the notary and to DFAT.

Where is the original, and what if it is lost?

A notary must sight the original, signed deed. Not a photocopy, a scan, or a copy that someone certified years ago.

Original trust deeds are frequently held by the accountant or solicitor who set the trust up. Ask them to produce the originals to the notary, or to release them to the trustee for the appointment. Deeds of variation and appointment are often filed separately from the deed itself, so ask for all of them.

If the original has been lost, stop and speak to a solicitor. A notary can certify that a photocopy is a copy of a photocopy, but that proves nothing about the deed. Whether the trust can be evidenced another way is a legal question, not a notarial one. See when the original is unavailable for the general position.

Does the type of trust change what you bring?

Yes. The same principle applies to every trust, but the documents that evidence it differ.

A testamentary trust arises under a will. It is evidenced by the will and the grant of probate, not by a separate deed. A sealed grant is a court document, and DFAT's list of documents it can legalise includes court documents as originals. So the grant may be able to go to DFAT directly, without a notary. Confirm with DFAT for your document. See overseas inheritance documents.

A corporate trustee's company extract is similar. DFAT lists government commercial documents, naming ASIC documents, among those it can legalise. An original ASIC extract may therefore skip the notary. The deed itself is a private document and cannot.

What does the notary do, and not do?

The notary sights each original and certifies that the attached copy is a complete and accurate copy. The notary also checks the identity of the person producing the documents.

The notary does not certify any of the following:

• that the trust is valid or was properly executed;
• that duty was paid on it where duty is payable;
• that the listed trustees are still in office;
• that the trust owns anything;
• who the beneficiaries are, or what they are entitled to.

Those are questions of law and of fact. A foreign body answers them from the documents, or with advice from its own lawyers.

A notary can also witness the trustee's signature on documents the overseas body requires. Examples include account-opening forms, declarations of beneficial ownership, or a certificate listing the current trustees. If the trustee is a company, the notary will want evidence of who may sign for it. See notarising for a company or an individual. Bring those documents unsigned.

What if the overseas matter needs a new deed or a variation?

If the overseas matter requires a new trust, a change to an existing deed, or the appointment of a new trustee, that is legal work. A solicitor, and usually an accountant, should advise on three things: whether the deed permits the change, what it does to the trust, and whether duty or tax consequences follow.

The notary then witnesses execution if the documents are going overseas. The rules on stamping and duty differ between states and territories, and they should be confirmed for the trust in question. A notary's seal on a variation does not make the variation effective.

Is a JP or an accountant's certification enough?

For Australian banks and agencies, certified copies are often accepted from a range of authorised certifiers, and a notary may be unnecessary. Check the institution's own requirements.

For overseas use, a Justice of the Peace's certification is not recognised and cannot be apostilled. The same is generally true of an accountant's certification. The foreign body needs a signature and seal DFAT can authenticate, which means a notary.

Trust deeds are long. A notary certifies the whole document, bound so pages cannot be removed or substituted. Bring the complete deed. A copy that omits the schedules is not a true copy of anything.

Document	Private or public?	Usual route for overseas use
Trust deed and variations	Private	Notarised copy, then DFAT
Deeds of appointment or retirement	Private	Notarised copy, then DFAT
ASIC extract for a corporate trustee	Public	Possibly DFAT directly; confirm first
Grant of probate	Public, a court document	Possibly DFAT directly; confirm first
Trustee's declaration or bank form	Private	Signed before a notary, then DFAT

How does the apostille or legalisation step work?

The notarial certificate is an Australian act. DFAT, the only body in Australia that issues apostilles, authenticates the notary's signature and seal. An apostille certifies that signature and seal. It says nothing about whether the trust is valid.

• For a destination that is a member of the Hague Apostille Convention, DFAT issues an apostille. Check membership on the HCCH status table on the day.
• For a non-member, DFAT issues an authentication, and the destination's embassy or consulate legalises it.

Each certified document in a bundle may need its own apostille. Ask the receiving authority whether it wants separate certificates, and ask the notary whether the bundle can be certified in a way the receiver and DFAT will accept as one document or several. See apostille and authentication.

What about translation?

A foreign bank or registry may want the deed translated. Trust deeds are long and technical, and their vocabulary may have no exact equivalent in the other language. Ask the receiving authority whether a translation of the key clauses is acceptable, and whether it wants the translation made in Australia or in its own country. If an Australian NAATI translation is accepted, the translator's declaration can be notarised and sent to DFAT. See certified translation in Australia.

How should you prepare, step by step?

1. Ask the receiving authority for its full list, in writing, including whether each document needs its own apostille.
2. Collect every original from the accountant or solicitor: the deed, variations and trustee appointments.
3. Order public documents, such as a current ASIC extract, and ask DFAT whether they can go to it directly.
4. Prepare the overseas forms the trustee must sign, and leave them unsigned.
5. See the notary with the originals and the trustees' identification.
6. Lodge with DFAT, then the embassy if the country is outside the Convention, then arrange any translation.

Here is an illustration, not a real case

A Perth family trust is buying shares in a Singapore company, and the company's bank asks for the trust deed. The trustee's accountant produces the original deed from 2004, two deeds of variation and a deed appointing a new corporate trustee. A notary certifies complete bound copies of all four. The trustee orders a current ASIC extract for the corporate trustee and asks DFAT whether it can take the extract directly. DFAT apostilles the notarial certificates and the extract. The bank has everything it needs in one round.

In short

To notarise a trust deed for overseas use, bring every original, not just the deed: variations, appointments and the corporate trustee's records. The notary certifies complete copies and witnesses the trustee's signatures, never the trust's validity. DFAT then adds the apostille or authentication. Ask the receiving authority for its full list first. See document notarisation.

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Asked for a trust deed by an overseas bank or registry? Send us its request and we will explain each step before you book.