Farang's Rights To Property After Thai Wife's Death

[bendix]

Here's a hypothetical scenario.

Many farang buy a house/land through their wives. It's put in their wife's name and the guy presumably signs something to say he will not claim ownership of it at a later date.

What would happen to the property should she die before him, and assuming there are not children?

Does the farang husband have any rights or could he conceivably not only lose his wife, but his home too?

[Crossy]

My understanding is that if the husband has a lease or usufruct there SHOULD be no problem as both should be honoured by the new owner of the land.

The wife can also will the land to her husband who then has 12 months (?) to 'dispose' of the land since he cannot legally own it.

I have an usufruct and my lovely has willed 'our' land to me (I hope that's what the will says, it's in Thai).

The agreement should she die first (unlikely, her mum is 87 and still going strong) as I understand it is that I will 'sell' the land to her son (he already owns the adjoining plot) who will then honour the usufruct and inherit the land and house when I die. We have made no arrangements for the possibility of divorce.

We did it this way instead of the son getting the land direct, just in case the laws on farang ownership change in the next 30 years (was that a Gloucester Old Spot just flew past?).

How well this will work in practice, who knows, our (Thai) lawyer seems to think it's workable, and I trust 'our' son to keep his side of the deal. BTW we are not talking poor Isaan farmers here, Seksan has a profitable riverside restaurant in Pathum Thani.

[Arkady]

You need to be legally married and have your wife will the land to you. Otherwise it will go to her family. If you have set it up properly, you are technically allowed to own the land yourself with the permission of the minister, if less than 1 rai, but there are no known cases where this has been done. At any rate, you would be allowed to sell it to whom you wished e.g. your stepson.

[quiksilva]

Yes but hasn't bendix has thrown a curve ball? If the chap signed a paper at the land office, stating that he has no rights to the property would he still be able to inherit it?

It seems doubtful to me, but seeing as this has not been tested (to our knowledge) its a question as to which law would take precedence over the other but unfortunately that's a question I can't answer.

[Thai-Spy]

Yes but hasn't bendix has thrown a curve ball? If the chap signed a paper at the land office, stating that he has no rights to the property would he still be able to inherit it?

It seems doubtful to me, but seeing as this has not been tested (to our knowledge) its a question as to which law would take precedence over the other but unfortunately that's a question I can't answer.

The farang husband signs a paper which states that he understands he does not have the permanent right of ownership of the land when his wife dies, only a temporary right to it and must dispose of it within a specified time, and that he agrees to those terms. This puts him in a position roughly equivalent to that of the executor of the wife's estate so far as her land holdings are concerned.

[Crossy]

Yes but hasn't bendix has thrown a curve ball? If the chap signed a paper at the land office, stating that he has no rights to the property would he still be able to inherit it?

Hmmm, I don't recollect anything about death in the paper I signed, just that the money we (she) used to buy the land was hers. Of course it was in Thai, so it could have been the local take-away menu for all I know, I think we have a copy in our file, have to wait 'till I get back though (end March).

[Arkady]

I haven't signed one of these affidavits myself but my understanding is that you are declaring that the money used to purchase is your wife's (i.e. a free gift from you not a loan) and that the land will not form part of the sin somrot or communal marital property i.e. you are not part owner and have no claim on it in the event of divorce. I am sure the Lands Dept doesn't require you to to say you have no claim in the event of her death. In Thai law I believe that puts the land in the same category as any property she had before she married and she is free to will it to anyone she likes including her farang husband. However your right to inherit land from your wife could be invalidated if you are not legally married. If she has not left a legally acceptable will and you were legally married, you will have a claim but you will have to share the property with her family according the Thai formula for intestate estates. As I mention above the Land Code actually allows a foreign husband to own land up to one rai of residential land in these circumstances with permission from the minister. It would be interesting to see the reaction a deserving test case petioning for this e.g. a respectable farang with a decent job with young newly orphaned Thai children to bring up in the family home who will eventually inherit the property anyway. Would the interior minister just dismiss it with the usual official Thai xenophobia adding perhaps a suggestion that the farang widower is in fact a drug dealer or some other type of undesirable in the same way that the repulsive Purachai (a proud land owner in New Zealand) axed several hundred applications for citizenship and permanent residence when he was interior minister? Probably.

[quiksilva]

Interesting, thanks.

I haven't signed one of these affidavits myself but my understanding is that you are declaring that the money used to purchase is your wife's (i.e. a free gift from you not a loan) and that the land will not form part of the sin somrot or communal marital property i.e. you are not part owner and have no claim on it in the event of divorce.

and yes that's correct, this is what I signed when we brought our house and it made no mention of inheritance at all, just personal or matrimonial property, and I agree unless you are extremely well connected I think it will be very hard to get this 1 Rai inheritance .

[JacknDanny]

Here's a hypothetical scenario.

Many farang buy a house/land through their wives. It's put in their wife's name and the guy presumably signs something to say he will not claim ownership of it at a later date.

What would happen to the property should she die before him, and assuming there are not children?

Does the farang husband have any rights or could he conceivably not only lose his wife, but his home too?

Hmmm.,

Getting ideas bendix?

[bendix]

Hmmm.,

Getting ideas bendix?

i refuse to comment on the grounds that I might incriminate myself

No, but seriously, I think it's an important issue. So many farang / thai marriages (and associated house or land purchases) are predicated on an assumption that the farang will die first but that's not always the case. Having just got married and now considering a house purchase, it's something that is front of mind yet I've never seen it discussed. Not a nice subject I know, but my better half's mother died or natural causes in her thirties.

Edited March 15, 2007 by bendix

[Arkady]

Hmmm.,

Getting ideas bendix?

i refuse to comment on the grounds that I might incriminate myself

No, but seriously, I think it's an important issue. So many farang / thai marriages (and associated house or land purchases) are predicated on an assumption that the farang will die first but that's not always the case. Having just got married and now considering a house purchase, it's something that is front of mind yet I've never seen it discussed. Not a nice subject I know, but my better half's mother died or natural causes in her thirties.

If you are putting up all the money for a house in her name you really need to have it willed solely to you and have a usufruct agreement too, unless its just a small week-end place upcountry you don't too care much about. You can do it on a reciprocal basis making a will in her favour, covering at least your Thai assets and whatever else you want to will her (which should be through a foreign will). She will probably be happy with this, if you explain you don't want her to have to fight with your family if you go first and vice versa. A Thai will can actually be registered at the amphur and this is the securest way to do it, although a private will is also legal if properly witnessed. Either version can be changed.

For those who are holding out with company structures, it makes sense to have arrangements in place in the event of the demise of Thai shareholders.

[dsfbrit]

For those who are holding out with company structures, it makes sense to have arrangements in place in the event of the demise of Thai shareholders.

This is a scenario I had never considered. If one of the Thai nominee shareholders dies, then I will be storing a share transfer letter of a dead man in my safe. So if I need to use the letter in the future and put a date on it - it will not be of much real use will it.

Oh dear - another slight hole in a cunning plan

[LoveDaBlues]

Hmmm.,

Getting ideas bendix?

i refuse to comment on the grounds that I might incriminate myself

No, but seriously, I think it's an important issue. So many farang / thai marriages (and associated house or land purchases) are predicated on an assumption that the farang will die first but that's not always the case. Having just got married and now considering a house purchase, it's something that is front of mind yet I've never seen it discussed. Not a nice subject I know, but my better half's mother died or natural causes in her thirties.

Have the wifey sign a 30 year lease with an option to renew for 30. Set the amount of the lease at 1000 baht per month. YOU hold the chanote. If she dies first her heirs must honor the lease. Also, have a clause in the lease that if SHE breaks the lease (tells you to get lost) she must pay you 1 million baht on the spot. Note: the 1 million baht has NOTHING to do with the home/property; it is simply a fee she pays for breaking the lease.

[Nawtilus]

So by automatically going to the family if there is no will, does this mean family as in her kids would come first in line, then if no kids it would go to parents or siblings etc ?

Also wondered what would happen to the property if it was not sold in the 12 months alloted ?

And do you actually have to be legally married to have it 'willed' to you as the husband/partner ?

[Khun Bob]

Who informs the department of land that the land holder (your wife) has died ?

[LoveDaBlues]

Who informs the department of land that the land holder (your wife) has died ?

pretty obvious.......those that stand to gain

[wolfmanjack]

So by automatically going to the family if there is no will, does this mean family as in her kids would come first in line, then if no kids it would go to parents or siblings etc ?

Also wondered what would happen to the property if it was not sold in the 12 months alloted ?

And do you actually have to be legally married to have it 'willed' to you as the husband/partner ?

The codes book I have says the order of iheritance

1 descendants

2 parents

3 siblings of full blood

4 siblings half blood

5 granparents

6 uncles and aunts

then it goes on to say that if one of the parents of the descendant is still alive then he/she shares equally with the descendants

[Nawtilus]

Thanks.

[Godders]

wolfmanjack's list from the civil code is correct. However, if one make's a will, this takes precedence over the "natural succession" list. A Thai wife can leave a house and land to her falang husband, but in reality his chances of enjoying his inheritance (for all the reasons stated by other corrs) are probably nil. If the Minister of the Interior doesn't get you, her family probably wil!

[billd766]

My wife and I have each made a will leaving everything except the house and land to each other.

However in her will as well as being the father of my son I am also named as his guardian as he will become the owner of the land and property. Hopefully this will allow me to stay here until he is 18 or the legal age at that time.

I have no idea if this will work or not as I am 21 years older than my wife and our son will be 3 in August.

But I live in hope.

[distortedlink]

An English friend living in Thailand, lost his wife from cancer 5 years ago.

Only one week after her death, his wife`s loving caring family turned up, to take the land and car away.

My friend lost 6 rai of land, managed to keep his house and car due to a smart lawyer that cost him over half a million baht and a big pay off to his dead wife`s ever loving caring family.

On top of the grief of losing a wife, my friend had to deal with all the other crap of trying to save his life assets.

My advice is, get power of attorney on property or some sort of lease or legal agreement and if on a visa as married to a Thai wife, make sure the death is reported to immigration ASAP, otherwise the windower is seen as being in Thailand illegally, because Immigation has no compassion, only here legally or not.

[Khun Bob]

Seems like :

* have as little as possible in the wifes name, if anything is make sure it is leased to you

* have wills written appropriately

* when and if the wife dies have a young child, then will enable you to secure access and rights as before

Also

* If your wife is terminally ill, go out of thailand for care - if she dies abroad how will the thai authorities find out - you may then want to return and live a single quiet life - of course if your living close to family then this will be difficult to carry off - best to have a place not close to any family !

[Arkady]

So by automatically going to the family if there is no will, does this mean family as in her kids would come first in line, then if no kids it would go to parents or siblings etc ?

Also wondered what would happen to the property if it was not sold in the 12 months alloted ?

And do you actually have to be legally married to have it 'willed' to you as the husband/partner ?

The codes book I have says the order of iheritance

1 descendants

2 parents

3 siblings of full blood

4 siblings half blood

5 granparents

6 uncles and aunts

then it goes on to say that if one of the parents of the descendant is still alive then he/she shares equally with the descendants

I believe that a legally married spouse is also at the top of the list but, if there is no will the spouse has to share the estate with the descendants and parents according a formula. I think you would be entitled to a third or something like that. In the event, if you get into a legal squabble with them, you will probably end up with nothing. If not legally married you are entitled to nothing, if not named in the will. Even, if you are named in the will, you may have an uphill struggle, if not married. A Thai court may take the view that a unrelated foreigner somehow managed to force a Thai to sign a will that cheated her her family out their inheritance. Personally I would not consider this type of structure, if not willing to get legally married. Even if you are cohabiting, you would both also be in breach of the Land Code if you do not sign a declaration on buying the land that it is her money etc. Without this declaration the Lands Dept can classified the land as illegally owned by a foreigner. If you have set it up properly you can apply to the interior minister for permission to transfer the land into your own name and there is probably nothing to lose by trying this. I don't know whether they accept these applications or not. If they accept the application the 12 months to sell would presumably start from when the application is rejected, otherwise from the date of your wife's decease. The law ultimately allows the Lands Dept to sell the land at public auction. As for failing to notify the Lands Dept of the wife's decease, this may work for a long time, particularly if she died overseas and a Thai consulate was not notified, as long as none of her family have their eyes on the land. When you died, it would presumably revert to her heirs who would have an enormous amount of hassle pursuing the estate years later. If she has no heirs, it would ultimately revert to the state or perhaps be left empty as a haunted house for years, if no one claimed ownership.

The situation to be most wary of would be where the wife has children by a former husband. Who knows what they will turn into and who will wind them up for personal gain when they are older, even while your wife is still alive. The son of a former Thai girlfriend of mine once broke into my house and demanded money with a gun to pay off a debt that some one was apparently threatening to kill him for.

[Khun Bob]

Mmmmh - interesting comment - out of sight out of mind - both for the land and the wife ?

As for failing to notify the Lands Dept of the wife's decease, this may work for a long time, particularly if she died overseas and a Thai consulate was not notified, as long as none of her family have their eyes on the land. When you died, it would presumably revert to her heirs who would have an enormous amount of hassle pursuing the estate years later. If she has no heirs, it would ultimately revert to the state or perhaps be left empty as a haunted house for years, if no one claimed ownership.

Land in the southern most states is very cheap and not many buddhist thais want to go there. If you convert to Islam, speak malay and dont get involved then you should be ok. Nothing to stop you having fun outside of there, and even if the family know ou have land there, they wont be interested in it for the near future. The thai government even gives land away down there to very poor people - because they dont want it either...

[jetjock]

Mmmmh - interesting comment - out of sight out of mind - both for the land and the wife ?

As for failing to notify the Lands Dept of the wife's decease, this may work for a long time, particularly if she died overseas and a Thai consulate was not notified, as long as none of her family have their eyes on the land. When you died, it would presumably revert to her heirs who would have an enormous amount of hassle pursuing the estate years later. If she has no heirs, it would ultimately revert to the state or perhaps be left empty as a haunted house for years, if no one claimed ownership.

Land in the southern most states is very cheap and not many buddhist thais want to go there. If you convert to Islam, speak malay and dont get involved then you should be ok. Nothing to stop you having fun outside of there, and even if the family know ou have land there, they wont be interested in it for the near future. The thai government even gives land away down there to very poor people - because they dont want it either...

In all the hundreds of posts I have read on avoiding some of the pitfalls of farang ownership of property, I think Khun Bob's is definitely the most convincing. I think I might even give it a try if Allah be willing.

[Khun Bob]

You may well be taking the p1ss, but do not undersestimate the brotherhood of islam regardless of where you come from. The muslims are very open to people who embrace their religion and will extend to you priviledges tou simply would not expect al all !

Of course you can do as much or as little you want.

Conversion can be done overseas, to limit local damage - all you need is a letter from a mosque...

Please PM me if you would like to know about conversion outiside of malaysia...

One you are muslim you can choose some of the nicest malay girls and there are lots. The malay girls dont like malay men like thai girls dont like thai men, but malay girls are 10 times better than thai girls...

KB

Mmmmh - interesting comment - out of sight out of mind - both for the land and the wife ?

As for failing to notify the Lands Dept of the wife's decease, this may work for a long time, particularly if she died overseas and a Thai consulate was not notified, as long as none of her family have their eyes on the land. When you died, it would presumably revert to her heirs who would have an enormous amount of hassle pursuing the estate years later. If she has no heirs, it would ultimately revert to the state or perhaps be left empty as a haunted house for years, if no one claimed ownership.

Land in the southern most states is very cheap and not many buddhist thais want to go there. If you convert to Islam, speak malay and dont get involved then you should be ok. Nothing to stop you having fun outside of there, and even if the family know ou have land there, they wont be interested in it for the near future. The thai government even gives land away down there to very poor people - because they dont want it either...

In all the hundreds of posts I have read on avoiding some of the pitfalls of farang ownership of property, I think Khun Bob's is definitely the most convincing. I think I might even give it a try if Allah be willing.

[wolfmanjack]

So by automatically going to the family if there is no will, does this mean family as in her kids would come first in line, then if no kids it would go to parents or siblings etc ?

Also wondered what would happen to the property if it was not sold in the 12 months alloted ?

And do you actually have to be legally married to have it 'willed' to you as the husband/partner ?

The codes book I have says the order of iheritance

1 descendants

2 parents

3 siblings of full blood

4 siblings half blood

5 granparents

6 uncles and aunts

then it goes on to say that if one of the parents of the descendant is still alive then he/she shares equally with the descendants

I believe that a legally married spouse is also at the top of the list but, if there is no will the spouse has to share the estate with the descendants and parents according a formula. I think you would be entitled to a third or something like that. In the event, if you get into a legal squabble with them, you will probably end up with nothing. If not legally married you are entitled to nothing, if not named in the will. Even, if you are named in the will, you may have an uphill struggle, if not married. A Thai court may take the view that a unrelated foreigner somehow managed to force a Thai to sign a will that cheated her her family out their inheritance. Personally I would not consider this type of structure, if not willing to get legally married. Even if you are cohabiting, you would both also be in breach of the Land Code if you do not sign a declaration on buying the land that it is her money etc. Without this declaration the Lands Dept can classified the land as illegally owned by a foreigner. If you have set it up properly you can apply to the interior minister for permission to transfer the land into your own name and there is probably nothing to lose by trying this. I don't know whether they accept these applications or not. If they accept the application the 12 months to sell would presumably start from when the application is rejected, otherwise from the date of your wife's decease. The law ultimately allows the Lands Dept to sell the land at public auction. As for failing to notify the Lands Dept of the wife's decease, this may work for a long time, particularly if she died overseas and a Thai consulate was not notified, as long as none of her family have their eyes on the land. When you died, it would presumably revert to her heirs who would have an enormous amount of hassle pursuing the estate years later. If she has no heirs, it would ultimately revert to the state or perhaps be left empty as a haunted house for years, if no one claimed ownership.

The situation to be most wary of would be where the wife has children by a former husband. Who knows what they will turn into and who will wind them up for personal gain when they are older, even while your wife is still alive. The son of a former Thai girlfriend of mine once broke into my house and demanded money with a gun to pay off a debt that some one was apparently threatening to kill him for.

The spouse gets a share as follows

If there are children then the spouse gets an equal share. So the spouse is treated as another child.

If no children then but there are heirs in (2) parents (3) siblings of full blood then the spouse gets 50%.

4 siblings half blood

5 granparents

6 uncles and aunts

the spouse gets 2/3rds.

If no heir specified in section 1629 then the spouse gets 100%. It also provides for representatives of heirs. This states that the children of a deceased heir can represent that heir.

So if your wife is old enough to have grandchildren and her child was already dead then the grandchildren would inherit instead.

Imagine how many people could end up with their finger in the thai land pie. I tried to buy some land that was mixed up like this. There were something like 30 heirs. The spouse wanted to sell and got all of them to agree but 1. Spoiled the whole deal.

Personally I think this law is unfair to the spouse.

[Old Man River]

wolfmanjack's list from the civil code is correct. However, if one make's a will, this takes precedence over the "natural succession" list. A Thai wife can leave a house and land to her falang husband, but in reality his chances of enjoying his inheritance (for all the reasons stated by other corrs) are probably nil.

I had this discussion on TV with Dragonman about a year ago. At the end of the day, the only way to have peace of mind is to put a properly drawn up and recorded 30 year lease on the property.

Having said the above, it should be noted that Sections 93 and 87 of the Land Code state that the statutory heir can inherit and own up to one rai of land for residential purposes. I have had an attorney (Thai) look into this and I specifically questioned whether a farang would have a ghost of a chance to get ownership of the land. The attorney called up the Competent Authority at the Land Dept. in Bangkok. The Competent Authority stated that Section 93 states "The Minister shall.......", but said in practice no permission is required from the Minister. The Land Dept. makes the decision and according to the law the foreigner would be able to inherit up to one rai for residential purposes.

Having said this, please refer back to my first paragraph.

[Arkady]

Unlike Spain and France the Thai natural succession provisions can indeed legally be circumvented if the propety is property willed to a legally married spouse. But of course the family might challenge the will claiming the deceased was placed under unreasonable pressure. Definitely add a lease or usufruct to strengthen your position in this event, even if you trust your wife.

[Lazy Sod]

I'm surprised the outcome is not widely known by now. There must be 10,000's of Thai-Foreign marriages and many of the Thai's in these marriages will own land. Of course everyone dies and so this situation must be occuring all the time when the Thai spouse dies first. I've asked lawyers myself and none of them seem to know what happens.

Sunbelt? Other lawyers? Has anyone had any personal experience of this they'd like to share?

Edited March 21, 2007 by Lazy Sod