Wording of Will

[lelapin]

I am 75 y.o. and have been living with my 50 y.o. girlfriend for more than 10 years. I bought a house 5 years ago worth about 8 million baht in her name but with me having a 20 year lease to cover any unforeseen situations arising.

In the likely event that I will leave this earth before her, everything will be fine and as I have no dependents in the UK, she can do with it as she wishes.

However if she passes on before me and I do not wish to stay in the house but instead move to somewhere smaller and turn that asset into cash I have a problem.

She is about to make a Thai will leaving her assets to her family based on the assumption that I will no longer be around on her demise.

Would it be possible for her to state in her will that on her death if I am still alive, the house will be sold and for example 2 million baht being given to her next of kin and the remainder to me. I would be willing to amend my Thai will to state that if she passes on before me, on my death all my Thai assets would go to her next of kin.

Death seems a very difficult thing for Thais to discuss as they see it as something very unlucky.

[Jip99]

What are you trying to achieve..... money from (an enforced) sale of the house you live in  -  or protected occupation should your wife die before you ?

[lelapin]

I have protected occupation with my lease. But as I mentioned I would wish to move to somewhere smaller on her demise and turn some of that asset into cash.

[Kwasaki]

29 minutes ago, lelapin said:

Would it be possible for her to state in her will that on her death if I am still alive, the house will be sold

Better l would say :- It will be possible for her to state in her will " That on her death if my husband is still alive he can remain living on the property in house as per the 20 year lease agreement and the property can only be sold on my husbands agreed instructions say-so or demise."  

Edited October 27, 2017 by Kwasaki

[lopburi3]

She has no husband from wording in OP so the house is hers or next of kin on death - he would have no claim on it other than possibly the mentioned lease.

[Kwasaki]

9 minutes ago, lopburi3 said:

She has no husband from wording in OP so the house is hers or next of kin on death - he would have no claim on it other than possibly the mentioned lease.

Named boyfriend then. 

[lelapin]

I have explained that I have no worries about the house being sold by her next of kin as I have a lease for 20 years in my name. I said that I would like to sell the house after her death to raise some capital and could only possibly do this if she made the appropriate will.

 

It would be nice if some people read the comments in full (maybe 2 times) before they give inappropriate answers

.

[TerryLH]

2 hours ago, lelapin said:

Death seems a very difficult thing for Thais to discuss as they see it as something very unlucky.

I don't think that's just a Thai thing.

[Tagaa]

A few points...

 

1) She can write a will, transferring the ownership to whomever she wants. She can further stipulate that as part of leaving the property to that person, they must allow you to occupy it for life, or they can sell it, granting you a certain percentage of the sale proceeds, or a specific amount...it's up to her. The important point here is that she MUST stipulate, in the will, how the proceeds will be divided & who gets what. If not, it's up to the person inheriting the property and you are out of luck.

 

2) Upon her death, if she dies without a will, the house will go to her closest living relative...First is the children if there are any, if not, then parents if either is still alive, then brothers & sisters, in that order. So if she dies in a motorcy accident before she executes the will, you are out of luck.

 

3) You say you have a twenty year lease. That's a good thing as, BY LAW, whomever inherits the house has to honor the lease. That being said, this is Thailand & good luck on enforcing that lease upon a Thai relative, in a Thai court. Same if the house is sold. The lease continues & the new buyer, BY LAW, has to honor it. Again, good luck with that.

 

4) She CAN will the house & land to you, but you must sell it. You have a year to do so.. Unsure what happens if it is unsold after a year. You'll need to consult a lawyer on that wrinkle.

 

Get the will written , do it now, and be VERY specific as to what is to happen and, who gets what and how much. My will bequeaths one exact amount and after that it's percentages of what remains.

 

 

[LannaGuy]

My house is on a lifetime Usufruct so why not change it? (from 20 to lifetime).  I also hold a Will leaving the house to me AND a signed and undated PoA.  With respect ALL of this should have been agreed and signed before you bought your house.

[Oxx]

Perhaps her will could state that she leaves the house and land to you? You'll then have one year to sell the house and move out.  And you could make whatever gift she suggests to her family from the proceeds.

[lelapin]

I am 75 now so I imagine that a 20 year lease should see me through but the point re leaving the house to me with a year to sell it, was very useful. I could link that in with me stating in my will that I would then pass on part of the proceeds of the sale to her family.

Leading on from this then, is there a lawyer in Pattaya that anyone could recommend that would be fair and competent on this topic. 

[LannaGuy]

Did you read the other posts?   including mine just before yours?  he needs THREE things:

 

1. Usufruct lifetime
2. Will
3. PoA undated

Job done

[Oxx]

2 minutes ago, LannaGuy said:

Did you read the other posts?   including mine just before yours?  he needs THREE things:

 

1. Usufruct lifetime
2. Will
3. PoA undated

Job done

 

You are apparently missing the point that he wishes to raise cash should he choose to move out of the property.  Usufruct doesn't give him that.

[lelapin]

Yes. All very helpful

Will Ok

Why does the POA need to be undated

What is Usufruct lifetime

 

[LannaGuy]

1 minute ago, lelapin said:

I am 75 now so I imagine that a 20 year lease should see me through but the point re leaving the house to me with a year to sell it, was very useful. I could link that in with me stating in my will that I would then pass on part of the proceeds of the sale to her family.

Leading on from this then, is there a lawyer in Pattaya that anyone could recommend that would be fair and competent on this topic. 

 

I'm afraid it's not 'a point' it's Thai Law - if left property by a Thai one year to sell it OR leave the usufurct 'as is' BUT transfer to lifetime

[LannaGuy]

1 minute ago, Oxx said:

 

You are apparently missing the point that he wishes to raise cash should he choose to move out of the property.  Usufruct doesn't give him that.

Did you READ what I said?  I have been through this process several times. There are THREE parts to my 'solution' for him.

 

The 'Usufruct' gives him protection should she die, the Will he HAS TO sell within one year so he has a choice and double protection. 

[LannaGuy]

6 minutes ago, lelapin said:

Yes. All very helpful

Will Ok

Why does the POA need to be undated

What is Usufruct lifetime

 

 She can hardly sign the PoA if she's DEAD can she?  Usufuct is that you get full 'fruits' of the house until YOU die.

 

PS to make it ultra clear :  If it's undated you can fill in the date before her death (maybe 1 or 2 months) if you date it now and it's 10 years before she dies you might have some questions as to why the delay. Normally PoAs are dated for a SPECIFIC reason. You might well do without but I have two because they are very useful. I use them all the time when i don't want to go to the Transport office or government office. I just sign one and it's filled in be a Thai friend and saves me tons of frustrating time. 

Edited October 27, 2017 by LannaGuy

[lelapin]

2 minutes ago, LannaGuy said:

 She can hardly sign the PoA if she's DEAD can she?  Usufuct is that you get full 'fruits' of the house until YOU die.

Why can't the POA be the same date as the will. This is the situation with my UK will.

Why do I need to change my lease if I am now covered until I am 96.

Sorry if I am being thick but I do have senior moments.

[LannaGuy]

Just now, lelapin said:

Why can't the POA be the same date as the will. This is the situation with my UK will.

Why do I need to change my lease if I am now covered until I am 96.

Sorry if I am being thick but I do have senior moments.

1/ TIT and I'm worried it could be challenged and not valid because of a long delay. PoA in UK is signed by a lawyer here it is not and can be bought at the Post Office for 5 baht.

2/ We don't know, but hope, you will be - why not mitigate that risk?  I have a lifetime.

[AGareth2]

6 hours ago, Kwasaki said:

on my husbands agreed instructions say-so or demise." 

demise is easy to arrange

[AGareth2]

3 hours ago, Tagaa said:

4) She CAN will the house & land to you, but you must sell it. You have a year to do so.. Unsure what happens if it is unsold after a year. You'll need to consult a lawyer on that wrinkle.

thought it was 180 days?

anyway this is the best option IMO

[LannaGuy]

5 minutes ago, AGareth2 said:

thought it was 180 days?

anyway this is the best option IMO

365 days but he might decide to live in it? 

 

a lifetime Usufruct will give him that choice?  he could simply sign over the house to another Thai or his, sadly demised, wife's relatives?  OR sell

[Tagaa]

If he wants to remain living in the house, a usufruct for his lifetime is fine. I have one & see it as the best solution. She needs to will the property to a specific/named relative/friend and for safety sake and clarity, state in the will that her wish is that the usufructee remains in the home until his death. You and I know that in the west, leases and usufruct survive property transfers, but remember where you are and how far a little tea money will go if placed in the right pockets. People can raise all manner of challenges on things that are not clear, but by CLEARLY writing her intent, it will be almost impossible to challenge.

 

If the intent is to sell upon her death, she needs to stipulate exactly which person/relative is now the legal owner, who is to be executor and be responsible for the sale, the percentage of proceeds that the widower is to receive and what other family members are to get the balance and in what proportion.

 

Things left nebulous are open to interpretation. Specific instructions are not.

 

[cyberfarang]

On 10/27/2017 at 4:53 PM, lelapin said:

I am 75 now so I imagine that a 20 year lease should see me through but the point re leaving the house to me with a year to sell it, was very useful. I could link that in with me stating in my will that I would then pass on part of the proceeds of the sale to her family.

Leading on from this then, is there a lawyer in Pattaya that anyone could recommend that would be fair and competent on this topic. 

You obviously paid for the land the house sits on and like most of them do, probably the land is in your Thai wife`s name. And this is where it gets complicated. Also if you presently have a 20 year lease agreement on the house with your wife, under the law you are only resident in Thailand year by year, so whoever takes over the land may try to dispute your lease giving you only one year to sell the house and no one will buy a house that is situated on someone else`s land. 

 

If I were you, I would go and get some legal advice from a reputable lawyer, because for foreigners these matters are much more complication then you may think.

 

 

Edited November 14, 2017 by cyberfarang

[JimGant]

Quote

However if she passes on before me and I do not wish to stay in the house but instead move to somewhere smaller and turn that asset into cash I have a problem.

Well, if you plan to sell and move, the question of lease vs. usufruct is moot. And, if it's cash you want, best plan to move, because nobody will buy your property with your name on the back of the Chanote as a 20-year lessee. UNLESS you negotiate a private lease, stipulating rents, maintenance, etc. In this case, someone, if given a probably large discount, might take a chance that you'll faithfully pay the rent. But, if you don't, it will be a messy court situation for the new owner, as your name is still on that Chanote, trumping any private lease agreement.

 

Or don't sell it. If you don't need the cash, give the property to whomever your girlfriend would have given it to, had you gone first. Then, just hope they don't need the money -- and try and evict you.

 

I'd be satisfied with the lease protecting your ability to stay put, assuming you croaked before age 95. A usufruct is no more, nor less assuring, in allowing you stay in your home.

Quote

Usufructs are NOT as safe as lease agreements:

 

False. There is no legal, historical or factual grounds for this affirmation. If a lease is safe in Thailand (section 537 and following), a usufruct is safe. Both of them are in the CCCT, just as a gift agreement (section 453 and following) or a loan contract (section 640 and following).

http://www.udonmap.com/udonthaniforum/viewtopic.php?t=7901

So, yes, have your girlfriend sit down and write her Will in longhand. As such, it would be a completely legal Will. This would also function as a rough draft, if and when you visit a lawyer (recommended, if just to have your legal introduction setup before you frantically need a lawyer to probate her Will).

 

If you plan to move after her death (probably the cleanest scenario), have her leave the property strictly to you. Then you can sell it, after removing your lease from the Chanote, and give some of the proceeds to whomever your girlfriend has stipulated (ethically, but not legally, binding).

 

Or, if you plan to live on the property, and/or your GF doesn't quite trust you, have the Will stipulate, 'I leave my house and land, in equal shares, to sibling A, sibling B, and Sibling C.' How they divide a Chanote into thirds, I dunno. But presumably it can be done -- and in any case, you don't care who the owner is, or owners are, as long as you can remain on the property (which the Chanote lease covers).

 

The only scenario I don't see playing out is, remaining on the property *and* finding a buyer that will pay a reasonable price. But, if you do find such a buyer, be prepared to start paying rent at a level you probably won't want to -- which, combined with a discounted sales price, sounds like a non starter. Best just sell and move, as it sounds like there aren't any sentimental reasons not to.

 

Nowhere in any of this do I see where a Power of Attorney plays a part. We're talking about either A or B dying. A PofA becomes void when either A or B dies.

[Stradavarius37]

Lol. 75 v 50. Much ado about nothing.

Sent from my SM-N920C using Thailand Forum - Thaivisa mobile app

[lelapin]

10 minutes ago, Stradavarius37 said:

Lol. 75 v 50. Much ado about nothing.

Sent from my SM-N920C using Thailand Forum - Thaivisa mobile app
 

Clearly you haven't been travelling on the roads of Thailand very much.

Not everybody sits at home every night watching TV with their girl friends.