How to Notarise a Trust Deed in Australia

Trust deeds end up in front of a notary when a trust has to prove itself to someone overseas. 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 court or tax office wants to understand an arrangement it has no equivalent for.

Most of the difficulty is not the notarising. It is that the deed on its own rarely answers the question the overseas body is asking.

The deed alone does not tell them who the trustee is today

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 now. 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, the identification of 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, each round costing weeks.

You need the original, and it may not be with you

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 for them to be produced to the notary. 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, and whether the trust can be evidenced another way is a legal question, not a notarial one.

This applies equally to self-managed super fund deeds, unit trust deeds and testamentary trusts, which arise under a will and are evidenced by the will and the grant of probate rather than by a separate deed.

What the notary does, and does not do

The notary sights each original and certifies that the attached copy is a complete and accurate copy. The notary does not certify that the trust is valid, that it was properly executed, that duty was paid on it where duty is payable, that the listed trustees are still in office, or that the trust owns anything. Those are questions of law and of fact that a foreign body answers 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, such as 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 versus an individual. Bring those documents unsigned.

Making a new deed or a variation for overseas use

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. Whether a variation is permitted by the deed, what it does to the trust and whether duty or tax consequences follow are matters for a solicitor and, usually, an accountant. The notary then witnesses execution if the documents are going overseas. The rules on stamping and duty differ between states and territories, and should be confirmed for the trust in question.

Getting a certified copy

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 requirements. For overseas use, a Justice of the Peace's certification is not recognised and cannot be apostilled, so a notary is needed.

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.

Getting it apostilled or legalised

The notarial certificate is an Australian act. DFAT authenticates the notary's signature and seal:

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

Only DFAT issues apostilles. Each certified document in a bundle may need its own apostille, so ask whether the notary can certify the bundle in a way the receiving body and DFAT will accept as one document or several.

What it costs

Notarial fees are not fixed by statute and vary between practitioners and states. As a market estimate only, expect roughly $80–$150 for the first document and roughly $20–$50 for each additional document or copy at the same appointment, with long documents sometimes charged by length. A trust bundle of five or six documents, apostilled individually, costs noticeably more than a single certificate. DFAT and embassy fees are set by them.

Frequently asked questions

Does the notary confirm that the trust is valid? No. The notary certifies copies and witnesses signatures. Validity is a legal question.

Can the trustee's accountant certify the copies instead? For some Australian purposes, possibly. For overseas use, generally not; the foreign body needs a seal DFAT can authenticate.

The trust is a testamentary trust. Is there a deed? Usually not a separate one. The will and the grant of probate evidence the trust.

The foreign bank wants the deed translated. Trust deeds are long and technical, so get a quote before committing. Ask whether a summary translation of key clauses is acceptable.