temporary foriegn 'ownership' of property when thai wife dies

[rumak]

3 hours ago, sometimewoodworker said:

 

However under no circumstances agree to an change suggested to the Usufruct.

I agree with this !   Seems like you are allowing others to sway you one way or another.....

Once you let others take over you are going to have ......problems 

[Parsve]

As far as I know, you have the rights for one year, but if you want the house and garden to be solely your wife’s daughters. You have to give it to her and she had to set up a prenuptial before she gets married that it belongs to her. In most countries, prenuptial is written when you are in a marriage, but here in Thailand, it has to be done before, otherwise, the share is 50/50 between the spouses.

[tutsiwarrior]

28 minutes ago, orchidfan said:

Slightly off topic..but apart from the house and contents..what happens to a farang 's "Permission to stay based on marriage " if one 's Thai wife passes away?

a respected and knowledgeable TVF member advised that the 'permission to stay based upon marriage' should remain effective until expiry which in my case is in Dec...then I would have to make a different arrangement, ie, season some money in the bank in advance and switch to a retirement extension...

 

 

[happydays]

13 hours ago, tutsiwarrior said:

 

I have the chanote and I will see a lawyer to get a positive understanding of my rights and responsibilities...just need to find a reliable one, anyone got any suggestions for central Thailand? this would be for advice purposes only...

 

The British Embassy has a list of English-speaking lawyers although they emphasise that these are not recommendations:

https://www.gov.uk/government/publications/thailand-list-of-lawyers

 

[khunPer]

19 hours ago, tutsiwarrior said:

...before she registers the marriage at the amphur, a 'ceremonial wedding' should not have any affect on property ownership issues which will come into effect when the marriage is formally registered...

 

is this correct?

I think you are correct, but I would just in case ask the daughter to make a prenuptial agreement before the village marriage ceremony. The prenuptial concept is fairly new to Thais (according to the book "Thai Law for Foreigners"), but a local lawyer should be able to make the document; that money could be well spent to avoid eventually headache and problems later, should something go wrong.

 

Quote

...Under Thai Law, you may be able to specify the property involved and categorize them as common property and personal property, You may also specify how finances will managed during the course of your marriage. ("Thai Law for Foreigners", page 63)

–which I would understand as you can include "The same shall apply the proceeds of Separate Property and whatever that may replace the Separate Property." – i.e. in case the property is sold, the money or replacement continue as being "personal property".

[khunPer]

13 hours ago, tutsiwarrior said:

to complicate matters and FWIW the daughter is not my wife's biological daughter (my wife was her biological aunt) and my wife's name is not on the birth certificate...but she's looked after the girl from birth...my mother in law is alive and maybe the transfer is going to her...she was with us at the courthouse...and I was asked by the courthouse lady to allow her to be the executor to which I agreed as I thought that it was a matter of falangs not being able to be executors...something else that wasn't made clear...

 

AFAIK the usufruct gives me a lifetime entitlement to live in the house ('control the property') but now my unease is increasing for other reasons...

According to "Thai Law for Foreigners" page 80:

Quote

If you [i.e. your late wife] are survived by your spouse and your parents, the spouse receives fifty percent of the assets and your parents receive fifty percent.

The lifetime Usufruct should remain in place, according to what is normally said.

 

I think you need to consult a lawyer to clear everything the best way for your, and your late wife's wishes.

[sometimewoodworker]

5 hours ago, tutsiwarrior said:

so, in the event that my MiL and myself share the property 50 - 50% I would bequeath my 50% interest to the daughter to respect my wife's wishes...

  

if it's true that the MiL inherits 50% of the property then this alleviates my concern regarding the daughter's future husband attempting to get control in the event of a divorce...another question for a lawyer...

 

 

If you have complete trust in MIL yes.

 

If you do give your 50% to your wife's niece (daughter) it would probably make things easier if you do it before she gets married, as in that case it will be listed as her property on the marriage documents, so making ownership crystal clear.

[GOLDBUGGY]

20 hours ago, pontious said:

If you have a will leaving everything to each other { no children } is there any need for a usufruct?  Is the foreigner still able to live and sell within 1 year?

Of course he can still sell the property within a year. But what if he continues to want and live there? Which changes things quite a bit. 

 

With a Usufruct, no matter how many times this property changed hands, the Usufruct still must be honoured. So if he has a Usufruct in place now for life, he can continue to live there for life. He can then thus pass this proprty onto the daughter. 

 

If he chooses to live there, and he does not have a Usufruct in place now, he can elect to get one with his daughter, and then pass the property on to her, as his wifes wishes. This gives him the right to live there for life, and the property ownership to the daughter, who can then sell after his death.  

[sometimewoodworker]

4 hours ago, BritManToo said:

7 hours ago, sometimewoodworker said:

You are confusing the ownership of house and land. A foreigner can own the house. 

A foreiner can be the temporary owner of land in this one circumstance.

A foreigner can not have thier name on the title deed of a Chanote.

 

the OP is completely correct in that he has not more than 1 year to give or sell the land he now is the owner of with or without the house.

Wrong on almost all points.

 

Foreigner can't own a house once house and land registered as a single entity.

Not actually happened in last 25 years, they refuse to sign the documents handing over the land to a foreigner.

With no will, 50% for the spouse, 50% divided between relatives

1 year rule was never enforced, anywhere, it's just a threat.

Well no.

If the non Thai can show that all the money used to build the house was his he definitely can own the house and do anything he likes with it, including demolishing it if he wishes. This has happened and no legal action to stop it was possible.

 

As I said the non Thai cannot be registered with the land office on the title deed as the owner, however he can sell or give the property or part interest in the property (if sold the proceeds are his). However as Thai law says that the surviving spouse inherits 50% and there is nothing excluding land from the law the surviving spouse becomes a 50% owner of the land. In this situation the fact that a non Thai cannot have thier name on the title deed is not relevant they are still the owner or part owner.

 

As I mentioned land ownership and property ownership are not the same.

 

Many people rent land and build on it. Because they are renting the land does not stop them owning the house they build on it.

[tutsiwarrior]

 

7 minutes ago, sometimewoodworker said:

If you have complete trust in MIL yes.

 

If you do give your 50% to your wife's niece (daughter) it would probably make things easier if you do it before she gets married, as in that case it will be listed as her property on the marriage documents, so making ownership crystal clear.

 

yeah...if I was the sole beneficiary maybe I woulda waited for awhile to observe the daughter and her fiance before handing over the property to see if there was any funny business but I trust the MiL as we are pals...and if anything with her 50% she would be more ferocious than myself in holding off any attempt to usurp family property rights and my wife's wishes...after the probate business is finished then we'll head down to the land office and take care of the transfer of my 50% to the daughter for which the land office staff should be adequate...the wedding is not until October...

 

since my wife died everyone in the household has settled down with the new regime that recognises my status as usufructuary and that I'm not going anywhere...there's plenty of room and everyone's comfortable and thus far the daughter's fiance looks to be a decent type, he was around a few months before my wife's death and helps around the house and etc...and I'm sure that the MiL, the daughter's grandma is watching the dude closer than I am...

 

 

[sometimewoodworker]

3 hours ago, Parsve said:

As far as I know, you have the rights for one year, but if you want the house and garden to be solely your wife’s daughters. You have to give it to her and she had to set up a prenuptial before she gets married that it belongs to her. In most countries, prenuptial is written when you are in a marriage, but here in Thailand, it has to be done before, otherwise, the share is 50/50 between the spouses.

Prenuptials are not automatically required, as under Thai law all assets acquired before marriage remain the property of the person who they belong to.

 

It also seems that you don't understand that all prenuptials have to be agreed before marriage. If you do it after marriage  it becomes a postnuptial 

[musiclover]

6 hours ago, Muhendis said:

It's worth mentioning that if the property does not get transferred/sold to a Thai national within one year then the government will auction it and give you the proceeds which won't be very much.

SImply untrue!!!!!! From personal experience 

[musiclover]

6 hours ago, Muhendis said:

It's worth mentioning that if the property does not get transferred/sold to a Thai national within one year then the government will auction it and give you the proceeds which won't be very much.

Not  true at all....in fact rubbish!!!

[musiclover]

1 hour ago, tutsiwarrior said:

 

 

yeah...if I was the sole beneficiary maybe I woulda waited for awhile to observe the daughter and her fiance before handing over the property to see if there was any funny business but I trust the MiL as we are pals...and if anything with her 50% she would be more ferocious than myself in holding off any attempt to usurp family property rights and my wife's wishes...after the probate business is finished then we'll head down to the land office and take care of the transfer of my 50% to the daughter for which the land office staff should be adequate...the wedding is not until October...

 

since my wife died everyone in the household has settled down with the new regime that recognises my status as usufructuary and that I'm not going anywhere...there's plenty of room and everyone's comfortable and thus far the daughter's fiance looks to be a decent type, he was around a few months before my wife's death and helps around the house and etc...and I'm sure that the MiL, the daughter's grandma is watching the dude closer than I am...

 

 

You are being badly misinformed by some of the comments here

As surviving spouse (with no will) you're automatically entitled to 50%of assets PLUS another equal share with other beneficiaries !!!

 

So with 2other entitled family members, for example, you will be entitled to 66 1/3%

 

You should have established yourself as executor and thus have control

You will not have to sell the house within 1 year....the time limit is elastic but of course you will have to do something in time

 

You can sell the house to a Company  (and pay off other beneficiaries with cash based on the value of asset and their entitled share)

 

Beware other family members who can and do get greedy

 

Why have you allowed an outsider to be executor????? You as legal spouse should have this responsibility!!

 

I know nothing about usufruct.......only have knowledge of rights of spouse (you) if house was in wife's name..

 

Get a lawyer asap....and try to change executor to you.....

[huawei]

Hi

 

i have been through this. The house I lived in was gifted to our daughter, eventually, as was my wife’s wishes. I compensated the surviving parent to transfer his % to my daughter, small amount given in appreciation.

 

you have 1 year not from death but from when probate as granted to you ( I presume at court you will be established as the administrator).

 

familiarise yourself with intestate rules ( no will). There is a define list of people who will inherit. You, any children plus the parents. You solely cannot gift the house as it will not be yours to gift in its entirety. I had a good lawyer. 

 

The other members may may not wish to gift to the daughter, if there are others. Her daughter will inherit part of the house automatically according to intestate law.

 

my advice is go slow..don’t think the 1 year rule is cast iron...I agree with music lover you don’t have to sell. 

 

i however moved after a few year no need to stay there...you may feel the same..

 

get a lawyer..post on here what his advice is.....

 

god luck. 

[huawei]

Now that I have read through this thread, some ( Almost all )of the advice on here is completely wrong...why do people post when they don’t know the true facts.

 

music lover is spot on...you own 661/3, the daughter and mil the rest in equal shares if they are the only others.

 

[dickjones2018]

I guess you paid for the land & house as your wife was dirt poor and still you might lose all to a family member that paid nothing and can gamble it away in a few years... take usufruct  on it, than give the land , not the house, to the daughter

[sometimewoodworker]

1 hour ago, musiclover said:

As surviving spouse (with no will) you're automatically entitled to 50%of assets PLUS another equal share with other beneficiaries !!!

 

So with 2other entitled family members, for example, you will be entitled to 66 1/3%

Regrettably untrue.

In the current situation; surviving spouse and surviving mother of his wife 

 

Quote

2) If the decedent left his spouse and parents, the spouse is entitled to 50% and the parents to the other 50%;

You don't get 2 bites of the cherry with surviving children (none) or parents 1

 

In your scenario it would be 75/25 and that is not correct, it is 50/50

 

 

[huawei]

^^ I am sure I got 66 1/3 rd of the property..

[tutsiwarrior]

40 minutes ago, dickjones2018 said:

I guess you paid for the land & house as your wife was dirt poor and still you might lose all to a family member that paid nothing and can gamble it away in a few years... take usufruct  on it, than give the land , not the house, to the daughter

 

 I already have a usufruct, pal...and your presumptions regarding my circumstances with my wife and her family are absurd and insulting...

 

 

[musiclover]

And me.......

[musiclover]

42 minutes ago, musiclover said:

And me.......

66 1/3 goes to spouse if 2 other beneficiaries...

[Andrew Dwyer]

My condolences on your loss Tutsi.

A very interesting thread, albeit sad, which has brought up a wide range of answers.

Hopefully Tutsi resolves it to some satisfaction and if possible posts the outcome as this subject is important to many on TVF , myself included.

[huawei]

The solution is to make sure you have both have a will.

[kuma]

44 minutes ago, tutsiwarrior said:

 

 I already have a usufruct, pal...and your presumptions regarding my circumstances with my wife and her family are absurd and insulting...

 

 

Firstly, condolences regarding your loss. Hard enough of a time on its own, without all these hassles.

 

I have just read this whole thread with great interest as I am now in the process of buying property, or rather funding the purchase of property that will be my GFs. I will backstop my rights with a Usufruct, Superficies or Right of habitation - TBD after discussion with lawyer (as an aside, lots of laws in Thailand are changing rapidly - many laws that were relevant last time I bought property have changed to some extent, so you are dealing with a moving target to some extent, many posters here may have good intent but their experience is dated and perhaps no longer relevant)

 

As is often the case on TVf, there is good information - but a lot of rock to pound thru to get at it.

 

I have used a local lawyer for all my official dealings in Thailand, including buying and selling property. I would highly recommend that as others have mentioned. I also am suspect (by default) of the helpful local officials, etc. There are too many risks involved.

 

I vote for getting a fair lawyer (I always prefer they not have a local connection - my lawyer is outer Bkk so works well for me) to help you navigate all this and protect your rights as well as secure the wishes of your spouse, as this issue has more than a few twists already.

 

All the best - PM if you still looking for referrals - but this individual is Bkk based (travels but that increases costs)

[swissie]

Not surprisingly, when a "Property" related issue hits this sub-forum, immediately you have 77 experts voicing 77 different opinions.

But there are 4 things that we can all build on:

1) The laws concerning Farangs in combination with "property" are a mess. (Using diplomatic, toned down language).
2) A "Usufruct" alone gives no right to any sort of ownership of a landed property.
USUFRUCT means: The right to make use of something.....nothing more!
3) Yes, get a lawyer. But not your Neighborhood Lawyer, him never having dealt with issues of Farangs and their Property in Thailand before.
4) AND ABOVE IT ALL: The way these issues will be handled can vary from Amphoe to Amphoe, from Land Office to Land Office.
Cheers.

PS: There is at least one major very competent contributor concerning this sub-forum, that contributes less and less here. Probably him realising, that any all-encompassing advice covering Thailand as a whole, IS SIMPLY NOT POSSIBLE concerning these matters. (see paraghaph 4).

[Monomial]

4 hours ago, huawei said:

^^ I am sure I got 66 1/3 rd of the property..

 

I suspect you guys are talking about 2 different things. If the property is considered sin somros, or a marital asset, then if the spouse dies, you own your 50% just as you always have, and the 50% owned by the spouse is split according to inheritance rules. On the other hand, if the property is considered sin suan tua of the deceased, then the entire 100% would simply be divided among the statutory heirs.

 

As homes with Thai couples are generally sin somros, it is common for anyone to assume the same is true in the case of a foreigner unless one of the heirs decides to contest this.  In that case, the judge should try and decide where the money came from to purchase the asset. Note that the paper you signed at the land department is not necessarily the end of the story. If you can show the money came from marital assets, such as a mortgage paid with salary from working while married, then it is still sin somros no matter what you signed at the land office. If the land was a gift from her mother or inherited though, you are only going to get the statutory split.

 

 

[Muhendis]

13 hours ago, musiclover said:

SImply untrue!!!!!! From personal experience 

I suggest you read this musiclover and perhaps review and tell us about your "personal experience".

www.samuiforsale.com/knowledge/inheritance-laws-thailand.html

Foreign land ownership by succession

Section 93 of the Land Code Act: "A foreigner who acquires land by inheritance as statutory heir can have an ownership in such land upon a permission of the Minister of Interior. However, the total plots of land shall not be exceeding of those specified in Section 87".

Any foreigner who is married to a Thai national is under section 1629 Civil and Commercial Code a statutory heir (i.e heirs who are so entitled by Thai law) and it seems that he can apply for permission of ownership of inherited land from his Thai spouse pursuant to section 93 of the Land Code Act. But ownership will not be given to the foreign spouse. The over fifty year old Section 93 of the Land Code Act is written for inheritance of land by foreigners under a treaty (section 86 of the Land Code Act) and does not apply to foreigners acquiring land by inheritance from a Thai spouse. There is currently no treaty with any country allowing any foreigners to own land therefore no Minister of Interior will or can give permission to any foreigner to own land in Thailand. Note that it is only since 1999 that Thai nationals married to a foreigner are legally allowed to acquire land (read up).

The answer to the question 'can a foreigner inherit land in Thailand' is yes, as a statutory heir, but he cannot register ownership of the land because he will not be given permission. Under present law he must dispose of the land within a reasonable period (meaning up to 1 year) to a Thai national. If the foreigner fails to dispose of the land the Director-General of the Land Department is authorized to dispose of the land and retain a fee of 5% of the sale price before any deductions or taxes.

[greenchair]

On 7/28/2018 at 8:36 PM, ELVIS123456 said:

Thanks for clarifying Blackcab.  

But I still thinks he needs to see a lawyer ASAP so that he knows his rights and what to do.

That he even thinks that he 'owns' the property for a year (and some others too) shows how little he actually knows/understands.

 

You have absolutely no idea mate. Shut up.

Your statement :  "If Thai law is same as most other countries,........."  is ridiculous. T

Thai law aint the same at all.  Foreigners cannot own property with land - period.

 

He owns the house on the land. 

[bristolgeoff]

Interesting to find out the result.all I know is a farang can not own land.must be a thai.a divorce I believe it is 50/50  to settle the house sale now.that is to be fair to the farang if you were married before.hope it works out for you in the end.