can , would someone please layout the 'rules' here for land succession rights ?

[YetAnother]

my scenario: i imagine common here, land,house in wife's name;

if she passes, accident or otherwise, where am i ?

heard , tangentially , sometime ago from a possibly credible source, that since i cannot own the land , it goes up for auction at some calendar limit;

possible i could head this off somehow ?  perhaps have her transfer the titles to {someone, trusted relative, child** ((we dont have any children)) }

thoughts ?, thanks

 

** looks like they would be under the legal sway of their parents, right ?

[ballbreaker]

You become a statutory heir just like the rest of her family and court will distribute according to law if there is no will.

 

Section 1629. There are only six classes of statutory heir;and subject to the provisions of Section

1630 paragraph 2, each class is entitled to inherit in the following order:

1) descendants;

2) parents;

3) brothers and sisters of full blood;

4) brothers and sisters of half blood;

5) grandparents;

6) uncles and aunts.

The surviving spouse is also a statutory heir, subject to the special provisions of Section 1635.

 

Section 1635. The surviving spouse is entitled to the inheritance of the deceased in the class and according to the division as hereunder provided:

(1) if there is an heir according to Section 1629 (1) surviving or having representatives as the case may be, such surviving spouse is entitled to the same share as an heir in the degree of children;

(2) if there is an heir according to Section 1629 (3) and such heir is surviving or has representatives, or if in default of an heir according to Section 1629 (1), there is an heir according to Section 1629 (2) as the case may be, such surviving spouse is entitled to one half of the inheritance;

(3) if there is an heir according to Section 1629 (4) or (6) and such heir is surviving or has representatives, or if there is an heir accordin g to Section 1629 (5) as the case may be, such surviving spouse is entitled to two-thirds of the inheritance;

(4) if there is no heir as specified in Section 1629, such surviving spouse is entitled to the whole inheritance.

 

I strongly suggest wife and you make wills so both of you decide who gets what in case of death not the court.

 

If you inherit the house and land then you will have 1 year to sell or transfer into Thai name.

 

If you desire to live in house/land then get a usufruct before her death and no matter who inherits house/land you still control the property even though you don't own.

 

 

 

 

[YetAnother]

58 minutes ago, ballbreaker said:

You become a statutory heir just like the rest of her family and court will distribute according to law if there is no will.

 

Section 1629. There are only six classes of statutory heir;and subject to the provisions of Section

1630 paragraph 2, each class is entitled to inherit in the following order:

1) descendants;

2) parents;

3) brothers and sisters of full blood;

4) brothers and sisters of half blood;

5) grandparents;

6) uncles and aunts.

The surviving spouse is also a statutory heir, subject to the special provisions of Section 1635.

 

Section 1635. The surviving spouse is entitled to the inheritance of the deceased in the class and according to the division as hereunder provided:

(1) if there is an heir according to Section 1629 (1) surviving or having representatives as the case may be, such surviving spouse is entitled to the same share as an heir in the degree of children;

(2) if there is an heir according to Section 1629 (3) and such heir is surviving or has representatives, or if in default of an heir according to Section 1629 (1), there is an heir according to Section 1629 (2) as the case may be, such surviving spouse is entitled to one half of the inheritance;

(3) if there is an heir according to Section 1629 (4) or (6) and such heir is surviving or has representatives, or if there is an heir accordin g to Section 1629 (5) as the case may be, such surviving spouse is entitled to two-thirds of the inheritance;

(4) if there is no heir as specified in Section 1629, such surviving spouse is entitled to the whole inheritance.

 

I strongly suggest wife and you make wills so both of you decide who gets what in case of death not the court.

 

If you inherit the house and land then you will have 1 year to sell or transfer into Thai name.

 

If you desire to live in house/land then get a usufruct before her death and no matter who inherits house/land you still control the property even though you don't own.

 

 

 

 

thanks for the prompt and complete , concise reply;

 

as a follow-on question: as regards the wills and usufruct,  completing those is simply a matter to be completed at the Amphoe ? or must we get overpaid legal representation involved ?-

[AlbionThailand]

Had the same issue except that I have a Thai son.

We had an attorney draw up a will so that in the event of my wife's death, the real estate in her name - (and other assets such as jewlery, bank balances, etc) pass to our son.  I also signed a waiver as an attachment saying that I was in agreement with her wishes as expressed in the will and waived my rights to any inheritence. 

Lacking a will, I would end up being a 50:50 owner with my son and would have to sell my 50% within 1 year and hard to sell 50% of houses!.

Not sure the advantages but my wife also appointed me as the guardian so that I can make decisions regarding assets until my son reaches legal age.

 

 

[tutsiwarrior]

2 hours ago, YetAnother said:

thanks for the prompt and complete , concise reply;

 

as a follow-on question: as regards the wills and usufruct,  completing those is simply a matter to be completed at the Amphoe ? or must we get overpaid legal representation involved ?-

 

don't know about a will but the usufruct is handled by the local land office...your name is entered on the chanote (property title deed)...

 

the usufruct can go either way, some folks report no problem, just pay the fee and OK...in my case I was away at work and engaged a lawyer and good that I did as the land office official objected mumbling something about foreigners controlling thai land, etc., at which point the lawyer stepped in and sorted his ass out...the lawyer was expensive but worth it...

 

 

[huawei]

32 minutes ago, AlbionThailand said:

Had the same issue except that I have a Thai son.

We had an attorney draw up a will so that in the event of my wife's death, the real estate in her name - (and other assets such as jewlery, bank balances, etc) pass to our son.  I also signed a waiver as an attachment saying that I was in agreement with her wishes as expressed in the will and waived my rights to any inheritence. 

Lacking a will, I would end up being a 50:50 owner with my son and would have to sell my 50% within 1 year and hard to sell 50% of houses!.

Not sure the advantages but my wife also appointed me as the guardian so that I can make decisions regarding assets until my son reaches legal age.

 

 

You could have gifted the 50% to your son..but the waiver comment is a really good idea.

 

the main concern is that that you are administrator of your wife’s will, therefore in control of the estate.

 

Again the guardian is a good one. So much crap happens in an untimely death, such as visa situation etc..as much clarity/ preparation beforehand all helps.

 

 

[perconrad]

5 hours ago, ballbreaker said:

You become a statutory heir just like the rest of her family and court will distribute according to law if there is no will.

 

Section 1629. There are only six classes of statutory heir;and subject to the provisions of Section

1630 paragraph 2, each class is entitled to inherit in the following order:

1) descendants;

2) parents;

3) brothers and sisters of full blood;

4) brothers and sisters of half blood;

5) grandparents;

6) uncles and aunts.

The surviving spouse is also a statutory heir, subject to the special provisions of Section 1635.

 

Section 1635. The surviving spouse is entitled to the inheritance of the deceased in the class and according to the division as hereunder provided:

(1) if there is an heir according to Section 1629 (1) surviving or having representatives as the case may be, such surviving spouse is entitled to the same share as an heir in the degree of children;

(2) if there is an heir according to Section 1629 (3) and such heir is surviving or has representatives, or if in default of an heir according to Section 1629 (1), there is an heir according to Section 1629 (2) as the case may be, such surviving spouse is entitled to one half of the inheritance;

(3) if there is an heir according to Section 1629 (4) or (6) and such heir is surviving or has representatives, or if there is an heir accordin g to Section 1629 (5) as the case may be, such surviving spouse is entitled to two-thirds of the inheritance;

(4) if there is no heir as specified in Section 1629, such surviving spouse is entitled to the whole inheritance.

 

I strongly suggest wife and you make wills so both of you decide who gets what in case of death not the court.

 

If you inherit the house and land then you will have 1 year to sell or transfer into Thai name.

 

If you desire to live in house/land then get a usufruct before her death and no matter who inherits house/land you still control the property even though you don't own.

 

 

 

 

Do (1) mean that if there are 2 children then the surviving spouse and the children each get 1/3 share of the inheritance?

[harrry]

18 minutes ago, perconrad said:

Do (1) mean that if there are 2 children then the surviving spouse and the children each get 1/3 share of the inheritance?

no

spouse 50 rest divided

they have to wait for spouse to die and same rules.

 

[sometimewoodworker]

6 hours ago, YetAnother said:

thanks for the prompt and complete , concise reply;

 

as a follow-on question: as regards the wills and usufruct,  completing those is simply a matter to be completed at the Amphoe ? or must we get overpaid legal representation involved ?-

The will certainly can be a simple matter to complete at the Amphoe.

 

the Usufruct very much depends on the officials in the Land office it can be as simple using a standard form. In my case it was possible though not easy. In some places and at some times it is impossible.

[khunPer]

On 8/1/2018 at 1:27 PM, YetAnother said:

my scenario: i imagine common here, land,house in wife's name;

if she passes, accident or otherwise, where am i ?

Your wife should make a will in Thailand – also advisable for you to do for your Thai belongings – in which she gives you the property (land). 

 

On the land you can declare a Usufruct at the Land Office, giving you the right to use the land for either 30-years, or for the lengths of your life. Furthermore, if you're building a house on the land, you can declare a Superficies, which gives you right to build a house on the land; a foreigner can own a house, but not the land under it. When applying for building permission, make sure that it's issued in your name only, and that all architect drawings, and building constructor contract, and all bills, and money transfers or receipts are issued in your name, as they are your proof of ownership.

 

In case of your wife's death, you'll have 12 month to sell or transfer the land; however the Usufruct agreement will still be valid, even the land change owner; i.e. you can stay in the house you own, even the land is transferred to someone else, for example a relative of your wife (might be difficult to sell a land with a Usufruct servitude, and you probably don't want to be worth more dead, than alive).

 

A Usufruct agreement might not secure you in case of a divorce, as contracts between husband and wife in some cases can be declared void.

 

You can read more about Usufruct and Superficies here.

 

My lawyer mentioned, that when "investing" in land and/or house, one can make a loan agreement of for example the full "invested" amount, and have that loan declared as a mortgage servitude on the land at the Land Office. Then the land cannot be sold, or transferred, without the loan has been fully paid, including eventual interest.

?

 

 

[Robert24]

Your wife should make a will in Thailand – also advisable for you to do for your Thai belongings – in which she gives you the property (land). 
 
On the land you can declare a Usufruct at the Land Office, giving you the right to use the land for either 30-years, or for the lengths of your life. Furthermore, if you're building a house on the land, you can declare a Superficies, which gives you right to build a house on the land; a foreigner can own a house, but not the land under it. When applying for building permission, make sure that it's issued in your name only, and that all architect drawings, and building constructor contract, and all bills, and money transfers or receipts are issued in your name, as they are your proof of ownership.
 
In case of your wife's death, you'll have 12 month to sell or transfer the land; however the Usufruct agreement will still be valid, even the land change owner; i.e. you can stay in the house you own, even the land is transferred to someone else, for example a relative of your wife (might be difficult to sell a land with a Usufruct servitude, and you probably don't want to be worth more dead, than alive).
 
A Usufruct agreement might not secure you in case of a divorce, as contracts between husband and wife in some cases can be declared void.
 
You can read more about Usufruct and Superficies here.
 
My lawyer mentioned, that when "investing" in land and/or house, one can make a loan agreement of for example the full "invested" amount, and have that loan declared as a mortgage servitude on the land at the Land Office. Then the land cannot be sold, or transferred, without the loan has been fully paid, including eventual interest.
[emoji846]
 
 

Does the loan really work? Can a foreigner register a mortgage similar to Thai citizen at the land office?

Sent from my SM-J701F using Thailand Forum - Thaivisa mobile app

[khunPer]

1 hour ago, Robert24 said:

Does the loan really work? Can a foreigner register a mortgage similar to Thai citizen at the land office?

Sent from my SM-J701F using Thailand Forum - Thaivisa mobile app

To my knowledge yes, but I never registered any myself; however the lawyer I mentioned were experienced in foreigners and property, i.e. the law firm's main business. But I know that if a foreigner hold a land deed as security for a loan to a Thai declared in a standard loan form, a court will rule in favor of the foreigner.

 

I mentioned it, as some foreigners may wish to secure their property "investment", and that could be one way to do it.

[Robert24]

To my knowledge yes, but I never registered any myself; however the lawyer I mentioned were experienced in foreigners and property, i.e. the law firm's main business. But I know that if a foreigner hold a land deed as security for a loan to a Thai declared in a standard loan form, a court will rule in favor of the foreigner.
 
I mentioned it, as some foreigners may wish to secure their property "investment", and that could be one way to do it.

As far as I know, a foreigner is not allowed to give a loan in Thailand, nor register a mortgage on a chanote. Maybe there is a way around it through a company, ie a nominee construct or SPV whatever you may call it.

Sent from my SM-J701F using Thailand Forum - Thaivisa mobile app

[khunPer]

28 minutes ago, Robert24 said:

As far as I know, a foreigner is not allowed to give a loan in Thailand, nor register a mortgage on a chanote. Maybe there is a way around it through a company, ie a nominee construct or SPV whatever you may call it.

Sent from my SM-J701F using Thailand Forum - Thaivisa mobile app

Thanks for your comment. A Thai court however accepts a loan from a foreigner with  land as security – I talk from experience – and I also have some faith in my real estate lawyer that suggested to declare a personal mortgage; do you have any links for you statement..?

[Max11man]

If your legally married Thai wife is the owner of the land, neither a loan, usufruct nor superficies gives you any rights of usage or returnn of capital in the event of a divorce. 

 

section 1469:

Any agreement concluded between husband and wife during marriage may be voided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith are not affected thereby.

\http://library.siam-legal.com/thai-law/civil-and-commercial-code-marriage-section-1465-1493/

[ThaidDown]

10 minutes ago, Max11man said:

If your legally married Thai wife is the owner of the land, neither a loan, usufruct nor superficies gives you any rights of usage or returnn of capital in the event of a divorce. 

 

section 1469:

Any agreement concluded between husband and wife during marriage may be voided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith are not affected thereby.

\http://library.siam-legal.com/thai-law/civil-and-commercial-code-marriage-section-1465-1493/

Note Some lawyers, and more importantly some judges do not consider an usufruct  to be a contract between husband and wife but rather a 'real right' conferred by one person on another.

 

At least up to a few years ago this point had not been tested in the supreme court so precedent was not fixed.  (It could have been in the interim) . If anyone needs to use this point then local knowledge of a lawyer as to the views of the judge where the case is heard is important. (Happened previously when wife and I were assisting a friend, the solicitors uncle was on the bench so the correct judge was 'selected')