Condo Q: Foreign Ownership and Inheritance

[nickcar]

I am also leaving my condo to my 3 daughters. I had long beleived a new FET was required until reading trogers post in a different subject some time ago. As he had succeeded in transferring the condo at the land departement i was happy to accept it as fact. Why would he lie?  Now in this conversation his information has been confirmed by two others, cant understanf why anyone would question it. If other lawyers do not agree or the land department objects, get another lawyer. 

 

My situation is slightly different in that when i purchased the condo some 20 years ago i was a foreigner and had to produce a FET. But i recently gained Thai citizenship (about a year ago) but i am hoping that the exisiting FET will still apply. Actually i dont recall ever seeing the FET and have no idea where it is now. 

 

It is possible that my daughters will decide to keep the condo as they are frequent visitors to Thailand but that of course is up to them. 

 

I note the interesting info that the executor of my will  can have her name added to the chanote. Does that mean that the actual transfer can be delayed indefinitely? I would also be interested if anyone knows what the situation is in transferring funds received as an inheritance out of Thailand? 

 

Cheers

nick

 

[huawei]

Just to add. If it was a house, under inheritance law if you are the beneficiary you can have the house transferred to you but with restrictions about ownership, at some point you must divest of that asset. Condos are transferable also, the fact that it is in the 49% quota means that you do not have to divest yourself of that asset as it is already in foreign ownership. This was my understanding in probate proceedings where the Condo was transferred intestate without a will.

 

the rules of intestacy ( no will)  were followed as prescribed by law. The condo act was at no time referenced to, nor the FET provided in evidence.

[Delight]

1 hour ago, huawei said:

Just to add. If it was a house, under inheritance law if you are the beneficiary you can have the house transferred to you but with restrictions about ownership, at some point you must divest of that asset. Condos are transferable also, the fact that it is in the 49% quota means that you do not have to divest yourself of that asset as it is already in foreign ownership. This was my understanding in probate proceedings where the Condo was transferred intestate without a will.

 

the rules of intestacy ( no will)  were followed as prescribed by law. The condo act was at no time referenced to, nor the FET provided in evidence.

 The laws of inheritance are not at issue here.

All that you have stated is understood

 

However

if the beneficiary wishes to register the condo in his/her name then a  visit to the Land Office-with certain documents in hand - is required.

 

One of those documents will be a new FET

 

This is my reading of the samuiforsale website -plus my reading of the condo act.

The experience of srogers was different

So far this post has not managed to explain this difference

Somewhat confusing for the OP

 

At this stage I think we need a legal 3rd party to end this confusion.

[huawei]

I accept your argument logically, but once the administrator has been approved by probate and the beneficiaries indentified by law, at the land office only the papers ( stamped) from the court were submitted, it was done immediately after the grant of probate so no new FET was required to register the beneficiary. This is my experience. A letter from the condo was required for debt obligations but that was part of the estate distribution. No letter for the 49%. This is my experience.

unfortunately the lawyer I used has moved and am no longer in contact otherwise I would follow up for clarity, but absolutely no new FET was needed, the beneficiaries simply wouldn't have 15m + and as I said it was never mentioned.as state the 2% transfer tax was paid.

as with anything in Thailand, no FET was required in Bangkok, but maybe insisted on in Pattaya..btw, the beneficiaries were 2 foreigners, the parents of the deceased.

[Delight]

  I have investigated this apparently confusing issue and  have learned the following:

 

If as a beneficiary you wish your name to be added to the condominium title deed in the regular way-i.e as full owner -then indeed a FET is required.

So samuiforsale is correct

 

The work around.

 

Ensure that the  beneficiary and the administrator are one in the same.

So added to the condo title deed will be the name of the administrator.

It can remain  in this  state for many years.

No legal requirement to sell.

 

When the beneficiary choses to sell -then it is the administrators job to transfer the condo to the new owner. The new owner requires the FET

 

As stated by trogers and huawei  a small tax has to be paid

Using this work around the both trogers and huawei are correct

 

[huawei]

This maybe true, I never considered that the beneficiary and the administrators if they are the same person may circumvent the need for an FET. I know one of the beneficiaries was ( as parents, they may have been joint or just treated the same).

 

good point. Make your main beneficiary the administrator, if possible.

 

there are work arounds to getting an FET without moving large sums in and out but that's been covered previously in other threads.

 

thank you.

 

[trogers]

1 hour ago, Delight said:

  I have investigated this apparently confusing issue and  have learned the following:

 

If as a beneficiary you wish your name to be added to the condominium title deed in the regular way-i.e as full owner -then indeed a FET is required.

So samuiforsale is correct

 

The work around.

 

Ensure that the  beneficiary and the administrator are one in the same.

So added to the condo title deed will be the name of the administrator.

It can remain  in this  state for many years.

No legal requirement to sell.

 

When the beneficiary choses to sell -then it is the administrators job to transfer the condo to the new owner. The new owner requires the FET

 

As stated by trogers and huawei  a small tax has to be paid

Using this work around the both trogers and huawei are correct

 

So, this is a loophole?

 

The other would be joint ownership. How can a sales be forced (by the authorities) on a Thai-owned condo that is jointly inherited by both Thai and foreign heirs?

[trogers]

2 hours ago, Delight said:

  I have investigated this apparently confusing issue and  have learned the following:

 

If as a beneficiary you wish your name to be added to the condominium title deed in the regular way-i.e as full owner -then indeed a FET is required.

So samuiforsale is correct

 

The work around.

 

Ensure that the  beneficiary and the administrator are one in the same.

So added to the condo title deed will be the name of the administrator.

It can remain  in this  state for many years.

No legal requirement to sell.

 

When the beneficiary choses to sell -then it is the administrators job to transfer the condo to the new owner. The new owner requires the FET

 

As stated by trogers and huawei  a small tax has to be paid

Using this work around the both trogers and huawei are correct

 

Seems another website on inheritance of foreign-owned condos by foreign heirs differ from what you have discovered:

 

http://www.tilleke.com/resources/inheritance-condominium-units-foreigners-thailand

 

Click to view the full article.

 

The conclusion:

 

The foreign heirs will take over the rights that the deceased has obtained, and can register ownership over the condo, without needing to dispose of it as per the Condo Act.

Edited December 7, 2017 by trogers

[Delight]

6 minutes ago, trogers said:

Seems another website on inheritance of foreign-owned condos by foreign heirs differ from what you have discovered:

 

http://www.tilleke.com/resources/inheritance-condominium-units-foreigners-thailand

 

Click to view the full article.

  Probate will determine who gets what

 

So probate determines that the farang gets the condo

 

However inorder to get it registered in his/her name the samuiforsale solution will be required.

Unless the ' work around ' is already in place at the Will  creation stage
 

 

 

[trogers]

11 minutes ago, Delight said:

  Probate will determine who gets what

 

So probate determines that the farang gets the condo

 

However inorder to get it registered in his/her name the samuiforsale solution will be required.

Unless the ' work around ' is already in place at the Will  creation stage
 

 

 

I am saying that the foreign heirs inherited the rights of the deceased, who had obtained through submitting that first FET and the condo unit is within the 49% quota. Thus these heirs do not need to submit new FETs to qualify themselves under 19/1 of the Condo Act. This interpretation is made possible by the Inheritance laws.

 

Nothing to do with who the estate administrator (executor) is.

 

I am sure an administrator have to execute the will within a reasonable time period, and cannot withhold actions indefinitely, until he passes away.

Edited December 7, 2017 by trogers

[huawei]

So that is the key question " does the beneficiary inherit the rights of the deceased". Yes or No.

 

as previously stated I never questioned this as In the experience I had it was unequivocally yes..but Delight has made me think!

 

 

[Delight]

11 minutes ago, trogers said:

I am saying that the foreign heirs inherited the rights of the deceased, who had obtained through submitting that first FET and the condo unit is within the 49% quota.

 

Nothing to do with who the estate administrator (executor) is.

 

I am sure an administrator have to execute the will within a reasonable time period, and cannot withhold actions indefinitely, until he passes away.

 On the topic of inherited rights - I have no clue. Sounds suspicious that rights can be transferred from the dead to the living

Up to a judge I guess.

The person who advised me of the 'work around' referenced a farang who held  a condo  'un executed ' for 5 years

Then decided to sell. Then executed.

 Who decides what is  ' reasonable' time. Given that  'reasonable ' time has elapsed- who then acts?

Edited December 7, 2017 by Delight
grammar

[huawei]

On 06/12/2017 at 2:51 PM, nickcar said:

I am also leaving my condo to my 3 daughters. I had long beleived a new FET was required until reading trogers post in a different subject some time ago. As he had succeeded in transferring the condo at the land departement i was happy to accept it as fact. Why would he lie?  Now in this conversation his information has been confirmed by two others, cant understanf why anyone would question it. If other lawyers do not agree or the land department objects, get another lawyer. 

 

My situation is slightly different in that when i purchased the condo some 20 years ago i was a foreigner and had to produce a FET. But i recently gained Thai citizenship (about a year ago) but i am hoping that the exisiting FET will still apply. Actually i dont recall ever seeing the FET and have no idea where it is now. 

 

It is possible that my daughters will decide to keep the condo as they are frequent visitors to Thailand but that of course is up to them. 

 

I note the interesting info that the executor of my will  can have her name added to the chanote. Does that mean that the actual transfer can be delayed indefinitely? I would also be interested if anyone knows what the situation is in transferring funds received as an inheritance out of Thailand? 

 

Cheers

nick

 

 

Regard delay of transfer. If I inherited a house, which I have, my advice to anyone would be to delay as long as possible because until probate has been granted the rule for sale within 1 year does not kick in. Not the case with a condo.

 

i agree the name of the person who is identified as the administrator on the chanote and is also the beneficiary doesn't have to actually transfer and would remain as administrator indefinitely....doesn't really make sense to me..

 

as trodgers has state if the beneficiary inherits the rights of the old FET then that can be used to allow inheritance funds to be transferred out.

 

the mind boggles..

[trogers]

1 minute ago, Delight said:

 On the topic of inherited rights - I have no clue. Sounds suspicious that rights can be transferred from the dead to the living

Up to a judge I guess.

The person who advised me of the 'work around' referenced a farang who held  a condo  'un executed ' for 5 years

Then decided to sell. Then executed.

 Who decides what is  ' reasonable' time. Given that  'reasonable ' time has elapsed- who then acts?

From Thai cases, the court shall appoint another executor (if the heirs couldn't agree on the new person) to replace the former executor who has resigned, incapacitated or passed away.

[trogers]

1 minute ago, huawei said:

 

Regard delay of transfer. If I inherited a house, which I have, my advice to anyone would be to delay as long as possible because until probate has been granted the rule for sale within 1 year does not kick in. Not the case with a condo.

 

i agree the name of the person who is identified as the administrator on the chanote and is also the beneficiary doesn't have to actually transfer and would remain as administrator indefinitely....doesn't really make sense to me..

 

as trodgers has state if the beneficiary inherits the rights of the old FET then that can be used to allow inheritance funds to be transferred out.

 

the mind boggles..

Why would inheritance funds not be allowed for transferring out when it was an investment from overseas?

 

Would be the same as a foreigner bringing money in for investing, and then not allowed to bring them out while he is still alive...

[huawei]

^^ I agree. I wasn't clear 

 

the mind boggles if they can't..

 

the more I think about this the more I think Samuii must be wrong...

[newnative]

4 hours ago, Delight said:

  I have investigated this apparently confusing issue and  have learned the following:

 

If as a beneficiary you wish your name to be added to the condominium title deed in the regular way-i.e as full owner -then indeed a FET is required.

So samuiforsale is correct

 

The work around.

 

Ensure that the  beneficiary and the administrator are one in the same.

So added to the condo title deed will be the name of the administrator.

It can remain  in this  state for many years.

No legal requirement to sell.

 

When the beneficiary choses to sell -then it is the administrators job to transfer the condo to the new owner. The new owner requires the FET

 

As stated by trogers and huawei  a small tax has to be paid

Using this work around the both trogers and huawei are correct

 

    You are still incorrect about a new FET being required with an inherited condo.  It is not required.  However, it is nice to know that you have verified the information I gave you in an earlier post about making your son your Executor (administrator) in your Will.  By doing this, your son will not have to pay any transfer fees until he sells the condo.   He just needs to pay a small fee to add his name as Executor to the Chanote.   You are correct that as the  Executor and also the only inheritor, there isn't a time limit on when your son would need to sell the condo.    

[trogers]

1 hour ago, newnative said:

    You are still incorrect about a new FET being required with an inherited condo.  It is not required.  However, it is nice to know that you have verified the information I gave you in an earlier post about making your son your Executor (administrator) in your Will.  By doing this, your son will not have to pay any transfer fees until he sells the condo.   He just needs to pay a small fee to add his name as Executor to the Chanote.   You are correct that as the  Executor and also the only inheritor, there isn't a time limit on when your son would need to sell the condo.    

Not worth saving that 2% transfer fee.

 

Should the heir wants to make his own will, the condo cannot be included as his asset since his name is not in the title deed as owner, only as an executor.  That will create problems down the line.

 

I signed a new will (pre-drafted by the same lawyer) on the same day my late father's condo was transferred to me. Signed just outside the Land office.

Edited December 7, 2017 by trogers

[huawei]

My experience and Trodgers is the same. I have also just discussed this with a co- owner who lost her husband 3 years ago ( intestate)..no FET requirement. Fee paid, this was on 2 condos both in different districts.

 

i think now we are quite clear.

 

interesting point about the administrator not paying the 2% , it's obvious but worth noting.

 

samuii are simply wrong, touting for business..

[newnative]

13 hours ago, trogers said:

Not worth saving that 2% transfer fee.

 

Should the heir wants to make his own will, the condo cannot be included as his asset since his name is not in the title deed as owner, only as an executor.  That will create problems down the line.

 

I signed a new will (pre-drafted by the same lawyer) on the same day my late father's condo was transferred to me. Signed just outside the Land office.

     I suppose the 2% could be considered significant or insignificant depending on the value of the condo and the wealth, or lack of it, of the inheritor.  Is 100,000 or 200,000 Baht pocket change, a large amount, or somewhere in between?   Certainly if the inheritor is planning to hold on to the condo it makes sense to me to put it in his name as the owner on the Chanote.  If the condo is going to be immediately put up for sale then the other route might be considered.

    I think your lawyer was incorrect in telling you that you could not have the condo as an asset in your Will without your name on the Chanote as the owner.  Although it was easy to do it the way he did.   There are cases where people have paid the full amount for a condo and purchased it in full from the developer but have not yet received the Chanote because of delays at the Land Office or some problems with the developer getting the paperwork done and submitted.  During this waiting period they can still make a Will directing to whom this asset will go to should they die suddenly before they receive the Chanote.  In my case, I am buying a condo in Bangkok that won't be finished until the end of 2018 but I still list it as an asset in my Will and I direct who will inherit it. 

[trogers]

11 minutes ago, newnative said:

     I suppose the 2% could be considered significant or insignificant depending on the value of the condo and the wealth, or lack of it, of the inheritor.  Is 100,000 or 200,000 Baht pocket change, a large amount, or somewhere in between?   Certainly if the inheritor is planning to hold on to the condo it makes sense to me to put it in his name as the owner on the Chanote.  If the condo is going to be immediately put up for sale then the other route might be considered.

    I think your lawyer was incorrect in telling you that you could not have the condo as an asset in your Will without your name on the Chanote as the owner.  Although it was easy to do it the way he did.   There are cases where people have paid the full amount for a condo and purchased it in full from the developer but have not yet received the Chanote because of delays at the Land Office or some problems with the developer getting the paperwork done and submitted.  During this waiting period they can still make a Will directing to whom this asset will go to should they die suddenly before they receive the Chanote.  In my case, I am buying a condo in Bangkok that won't be finished until the end of 2018 but I still list it as an asset in my Will and I direct who will inherit it. 

Your asset is not the condo, but a promise written in a contract.

 

Should it be passed on to your heir in this state, your heir could sue for breach of contract should the other party defaults. Same remedy as you would have if still alive.

 

In the case of the condo remaining in the name of an executor, with the heir being the one and same person, the condo will not be in the will, and would be an asset of the deceased under intestate consideration.

 

If the executor who died is a different person, the heir can apply to court for the appointment of a new executor. The condo would not be his asset until he owns it, and can be included in his will as such.

Edited December 8, 2017 by trogers

[huawei]

Why transfer ( pay up) if you haven't got the chanote?

[newnative]

1 hour ago, huawei said:

Why transfer ( pay up) if you haven't got the chanote?

     In my case, I haven't paid the full amount but have made a down payment required to buy in foreign ownership.  The builder is one of the strongest in Thailand and I feel certain the project will be completed on time, and maybe even early.  I would never buy off plan with an unknown developer or pay the full amount before transfer but some buyers have done that. 

[newnative]

4 hours ago, trogers said:

Your asset is not the condo, but a promise written in a contract.

 

Should it be passed on to your heir in this state, your heir could sue for breach of contract should the other party defaults. Same remedy as you would have if still alive.

 

In the case of the condo remaining in the name of an executor, with the heir being the one and same person, the condo will not be in the will, and would be an asset of the deceased under intestate consideration.

 

If the executor who died is a different person, the heir can apply to court for the appointment of a new executor. The condo would not be his asset until he owns it, and can be included in his will as such.

    Whether it's called an asset or a promise, we seem to be in agreement that this condo I am buying can be included as an item in my Will, without having the Chanote.   I could also handle this by  having a clause in the Will stating that all future assets I acquire or receive in Thailand go to:  (heir named).   We can agree to disagree with much of the rest except the statement that an heir who is not an Executor can petition for a new Executor to be appointed.

[trogers]

1 hour ago, newnative said:

    Whether it's called an asset or a promise, we seem to be in agreement that this condo I am buying can be included as an item in my Will, without having the Chanote.   I could also handle this by  having a clause in the Will stating that all future assets I acquire or receive in Thailand go to:  (heir named).   We can agree to disagree with much of the rest except the statement that an heir who is not an Executor can petition for a new Executor to be appointed.

That's the catch - acquire and receive. Between the date of your will, and the date of your death.

 

What about that you have not yet acquire and receive by the date of your death?

 

Your purchase & sales contract for a condo is an asset that can be passed on to a heir, both the rights and obligations. But it is not a condo yet. And your heir has to fulfill the terms of contract before a condo can materialize.

 

 

[newnative]

1 hour ago, trogers said:

That's the catch - acquire and receive. Between the date of your will, and the date of your death.

 

What about that you have not yet acquire and receive by the date of your death?

 

Your purchase & sales contract for a condo is an asset that can be passed on to a heir, both the rights and obligations. But it is not a condo yet. And your heir has to fulfill the terms of contract before a condo can materialize.

 

 

        I'm dead.  Now, what?  What happens with my property?   A good Will should answer that question with as little ambiguity as possible.  One of the first clauses in my Will states that any and all my debts must be paid first before any property is distributed.  So, pay the debts first.  That would include any debts still owed on any property--condo purchase payments, condo maintenance fees, car loans, utilities, etc. 

      A good Will should have as much detail as possible and strive to anticipate the unexpected and plan for it.  The fewer questions left unanswered, the better.  My only heir and I both die in a plane crash.  Now, what?  The more detail the Court has to work with the better, including listing future assets, both inherited and otherwise, that there might be ambiguity about.  I am a future beneficiary of a family trust.  I haven't received my share of this trust but my Will directs how my share will be handled should I die before the trust is distributed.   If your Will does a good job of answering the question  'now, what?', the Court will not have to come up with its own answers. 

      A good Will should be as specific as possible.   But, suppose I go out tomorrow and acquire a new Mercedes for 3MB cash. (Yeah, right!)  That would be a very substantial item for me and I would want to include it as a specific item in my Will.  But, suppose I die before I get around to revising my Will to include it.  Unless I have the 'acquire or receive in the future' clause there is ambiguity as to what I would have wished done with the car.  I'm dead--too late to ask me.   The 'receive' in the clause applies to anything not yet received or anything that was not anticipated or known when the Will was written--such as an expensive gift or an unknown bequeathal I might receive after the Will is done. 

[trogers]

1 hour ago, newnative said:

        I'm dead.  Now, what?  What happens with my property?   A good Will should answer that question with as little ambiguity as possible.  One of the first clauses in my Will states that any and all my debts must be paid first before any property is distributed.  So, pay the debts first.  That would include any debts still owed on any property--condo purchase payments, condo maintenance fees, car loans, utilities, etc. 

      A good Will should have as much detail as possible and strive to anticipate the unexpected and plan for it.  The fewer questions left unanswered, the better.  My only heir and I both die in a plane crash.  Now, what?  The more detail the Court has to work with the better, including listing future assets, both inherited and otherwise, that there might be ambiguity about.  I am a future beneficiary of a family trust.  I haven't received my share of this trust but my Will directs how my share will be handled should I die before the trust is distributed.   If your Will does a good job of answering the question  'now, what?', the Court will not have to come up with its own answers. 

      A good Will should be as specific as possible.   But, suppose I go out tomorrow and acquire a new Mercedes for 3MB cash. (Yeah, right!)  That would be a very substantial item for me and I would want to include it as a specific item in my Will.  But, suppose I die before I get around to revising my Will to include it.  Unless I have the 'acquire or receive in the future' clause there is ambiguity as to what I would have wished done with the car.  I'm dead--too late to ask me.   The 'receive' in the clause applies to anything not yet received or anything that was not anticipated or known when the Will was written--such as an expensive gift or an unknown bequeathal I might receive after the Will is done. 

Future benefits are covered under future interest because that right has been so stated. Eg. The house will be given to you after Mr. A, who has a right to use the house until he dies, passes away.

 

Present benefits that can be acquired at the present time but deliberate not so acquired becomes a grey area as to whether they qualify as future interest.

 

Your clause on any future assets and liabilities acquired before your death covers the period between the date of your will and your death. So, your Benz is covered.

 

The last part on unknowns (unknown to you even at the point of death) would probably fall outside your will and be assets distributed intestate.

 

I made a new will to avoid any possible disputes from relatives as the asset in question carries substantial value.

Edited December 8, 2017 by trogers

[trogers]

Besides transfer tax, there are other costs like legal fees, traveling expenses, and if the total value of all the assets is very high, inheritance taxes.

 

Many buy life insurances to cover this contingent for their heirs.

[trogers]

36 minutes ago, trogers said:

Besides transfer tax, there are other costs like legal fees, traveling expenses, and if the total value of all the assets is very high, inheritance taxes.

 

Many buy life insurances to cover this contingent for their heirs.

Inheritance Tax in Thailand