Protecting my right to live in our house should my wife die.

[Crossy]

OK, after a recent health scare with Madam (she's well on the mend now but it was close) I got to thinking "what if she does pre-decease me?".

 

I trust my Thai family to the moon and back, but greed and a 15M Baht house can be a powerful "persuader".

 

We have a mortgage which should get paid off if she dies, but what then? My understanding is that whilst the mortgage is in place leases and usufructs cannot be made (I can be corrected on this of course) and of course if Madam is no longer with us she can't set anything up.

 

I just want to protect my right to live in our home until I pop my clogs, what the family do then I'm not going to be worrying about. Although I could be lining up some lightning bolts (or earthquakes if I end up on the down escalator).

 

What are others doing (if anything)?

 

Thoughts, suggestions, ideas?

 

 

[CharlieH]

As I understand it, she has to make a will, the property will go to you and you have 1 year to sell it or do whatever with it.

My recommendation would be to get it from the "horses mouth" and speak with a "Thanai" and get things in place sooner rather than later ????

[saengd]

I would have thought that your wife's will should show that you are the beneficiary and that would take care of everything. You would then have one year in which to sell the property but that could be to an accommodating Thai person which would allow you to continue living there if you wish.

 

EDIT> Looks like CharlieH and I posted at the same time and have the same answer.

Edited March 15, 2020 by saengd

[saengd]

BTW, the sale during that year would be the time to write an usufruct or a superficies.

[Crossy]

And this is why we have a forum, the will route hadn't even begun to speculate about the merest possibly of crossing my mind.

 

I have one, so why shouldn't Madam? Duh!

[Chazar]

I  have a usufruct here which lets me live here  until I die. Done for virtually  nothing at the local land  office after my Wife  called  another  office to tell them what it was and how to do it.

Its  useless in a divorce but thats NOT what its  for

[thainet]

Just now, CharlieH said:

As I understand it, she has to make a will, the property will go to you and you have 1 year to sell it or do whatever with it.

My recommendation would be to get it from the "horses mouth" and speak with a "Thanai" and get things in place sooner rather than later ????

That is correct. A WILL naming you as the beneficiary is legal, but as a foreigner you cannot legally own it, therefore at this time the court will give you a reasonable time (one year at this time, unless anyone has any updated info) to sell the property and legally transfer it to the new owner (or family member or child).

 

Another way is to transfer the property into a company while she is still alive. Depending on how the company is structured with preference/non preference shares, you can have control of the company. If that interests you (or anyone else) then I recommend you contact a proper legal firm that can set this up for you.

 

[saengd]

I'm pretty sure it is illegal for a company to own a house where the sole purpose of the company is to do only that. I'm also pretty certain that it is also illegal for non-Thai's to have control of a Thai company, the share-ownership must be a majority of Thai people. None of which is to say those things can't be done, it's just that they are against the spirit of the law, if not the practice of it also.

[IvorBiggun2]

24 minutes ago, CharlieH said:

the property will go to you and you have 1 year to sell it or do whatever

He will inherit the land for 12 months. He gets to live in the house as a matter of course. Either he sells the land or arranges a lease with family members. I'd go for the lease.

[thainet]

11 minutes ago, saengd said:

I'm pretty sure it is illegal for a company to own a house where the sole purpose of the company is to do only that. I'm also pretty certain that it is also illegal for non-Thai's to have control of a Thai company, the share-ownership must be a majority of Thai people. None of which is to say those things can't be done, it's just that they are against the spirit of the law, if not the practice of it also.

From your post, yes you are right that it is illegal for foreigner to have more than 49% of a Thai company.

But the way a company is set up using the preference/non preference share way is not illegal. It is more complicated than what foreigners normally set up, which is why I suggested people talk to a proper legal firm.

I have 2 companies set up this way (one for more than 30 years) and I have complete control on the voting rights.

 

People get mixed up between share allocation and voting rights. so they should research these points.

Edited March 15, 2020 by thainet
addition

[evadgib]

An oft overlooked obstacle for posters on married extns rather that retd extns is that Immigration only allow 7 days after the wife dies before the husband has to leave/change visa unless this has changed recently?

[carlyai]

Hi Crossy, glad she is on the mend. Worrying.

Not sure if I've done it right, but Mrs and I made out our wills with Isaan Lawyers. We also made up the Uf... thinggy (can never remember the spelling.) saying I could live in the house until I die.

We took all this to the local Amphur and with much consultation of old books and a small bit of Mrs magic :), they wrote on the land document. 'That I can live here until I die.'

So, we shall see.

I know family things can go pear -shaped when someone dies and family can make things difficult if they desire, so I made sure that all our house access, through the compound has access ways drawn in on the land map, so no one in the future can fence me out. I'm pretty sure that doesn't apply to your block. 

Anyway good news about your Mrs. ????

 

 

[Dumbastheycome]

I have pondered  the  same question as the OP. I am aware of the initial practical purpose of my wife having a Will and the limitation of being required to on sell. What I have never been able to establish is if such a Will is legally able to contain enforceable  conditions or  caveats . such as: If  the Will specifies a Thai as inheritor with the  caveat that that is conditional on the surviving (non Thai citizen) spouse being  provided a full unconditional lease of 30 years or until such  time as that spouse is deceased or officially abandons said lease.

I have also tried to find any information that clarifies whether or not a Thai spouse as  "owner" is  legally entitled to grant a lease to their own spouse. I have also been led to  believe that a property lease dies with the current owner regardless.

The most obvious  downside is that in the event of a Thai spouse's  death that 12 months limitation on time to sell would provide a situation of duress for reasonable  price negotiations.

From both experience and observation when it comes to matters of inheritance there is almost always complications  despite  the "family love" !

It strikes me as strange that now a  divorce settlement involving a non Thai spouse can be a 50/50 legally enforced settlement  whereas in terms of inheritance there is much less parity.

However a lodged Will by the Thai spouse is a fundimental must that most Thai's do not recognize.

 

[Chalong circle]

Just wonder if you can rent from your wife long term. And have the contract registered at land office.

[thainet]

6 minutes ago, Chalong circle said:

Just wonder if you can rent from your wife long term. And have the contract registered at land office.

Bit hard to rent from a deceased person.

[Lacessit]

Just now, thainet said:

Bit hard to rent from a deceased person.

He can rent from the family. It all depends on what his wife's will says. She can will the property to the family, with the stipulation he can stay there until he dies or leaves.

[BritManToo]

2 hours ago, Crossy said:

I just want to protect my right to live in our home until I pop my clogs, what the family do then I'm not going to be worrying about. Although I could be lining up some lightning bolts (or earthquakes if I end up on the down escalator).

As a married couple, with the property being purchased by mortgage during the marriage it's already 50% yours.

With no will you would automatically inherit 1/2 of her share on death.

 

So you'd be 75% owner by doing nothing.

Thailand has no time limit on probate, if you're executor, just do nothing and leave the house in her name.

Edited March 15, 2020 by BritManToo

[Jip99]

6 minutes ago, Lacessit said:

He can rent from the family. It all depends on what his wife's will says. She can will the property to the family, with the stipulation he can stay there until he dies or leaves.

 

 

Whilst that is true, I would still feel vulnerable with the family having control.

 

Far better, IMO, is the usufruct. The rights continue after the death of the donor and achieve the 'lifetime use' objective.

 

I also arranged the usufruct route with Isaan Lawyers. My missus wants her nephew to benefit on her death but has not made a Will yet; like many Thais she does not understand the rules of intestacy.

[cornishcarlos]

I think the best way, is as BritmanToo says, just don't do probate.. Have her write up a will, naming you as executor and then do nothing... Visa depending, you can stay as long as you are able to fend off the vultures ????

If my wife dies before me, I won't be hanging around anyway... The family can have everything...

Edited March 15, 2020 by cornishcarlos

[Lacessit]

25 minutes ago, BritManToo said:

As a married couple, with the property being purchased by mortgage during the marriage it's already 50% yours.

With no will you would automatically inherit 1/2 of her share on death.

 

So you'd be 75% owner by doing nothing.

Thailand has no time limit on probate, if you're executor, just do nothing and leave the house in her name.

I'm confused, because how can the OP be an executor if there is no will?

[saengd]

Just one more thing that may be of use and that is my wife and I socialized her will with her family, we told them in advance what was going to happen in the event my wife passed away before me. We did that so there would be no surprises later, the SIL is designated Executrix.

[Chalong circle]

From what i understand, she is alive, and recovering from ilness which is very good news. I just do not know if you can rent from your spouse. From the family, no problem.

[KhaoYai]

3 hours ago, thainet said:

But the way a company is set up using the preference/non preference share way is not illegal.

It is if the sole reason for setting up the company is simply to own land.  Yes, I know that a lot of foreigners think they own their property that way but if sh8t hits the fan, they could forfeit the property.

 

The Thai land law not only prevents a foreigner from owning land, it specifically states that methods of deliberate circumvention on that law are illegal.

 

To own property, the company should a). Actually be trading and b). Have a reason to own land.

 

Now, I'm not going to make a direct suggestion but I can't see much wrong with a property investment company owning land that they then rented out with a proper lease agreement. I also know of no law that prevents a director of a company leasing a house from that company.........see where I'm going?  But, see a lawyer.

[saengd]

8 minutes ago, sanuk711 said:

I don't think this is correct Vicornoir----although I have no doubt that is what the land office told you. You just can not make legal agreements with your wife under Thai law.--- well you can make them,   but she can brake them--while your married or within a year of the divorce. Under Thai law  (section section 1469  & section 1466). )

 

Agreements between husband and wife in Thailand

Under Thai marriage laws any agreement between husband and wife entered into during the marriage can be voided by either of them at any time during the marriage or within one year from the final divorce. For this reason only a prenuptial agreement between husband and wife is under Thai law a valid contract if made pre-marriage and registered in the marriage register at the time of marriage, but it is a void contract if made post-nuptial  

 

 

 

 

+1

[CharlieH]

The topic is being derailed by continued "userfruct" discussion which is off topic to the OP as a mortgage is in place and so they have been removed.

[Bruce Aussie Chiang Mai]

5 hours ago, CharlieH said:

As I understand it, she has to make a will, the property will go to you and you have 1 year to sell it or do whatever with it.

My recommendation would be to get it from the "horses mouth" and speak with a "Thanai" and get things in place sooner rather than later ????

Agree get a will in place for both of you. Not hard or expensive, you are right good be nice family now but a few baht can turn people into vultures. Note I not being critical of Thais either it's the same world over.

 

Good luck.

[Chazar]

4 hours ago, evadgib said:

An oft overlooked obstacle for posters on married extns rather that retd extns is that Immigration only allow 7 days after the wife dies before the husband has to leave/change visa unless this has changed recently?

compassion  knows  no  bounds

[samran]

If you are working here and have got three years of work permits and tax returns, then apply for Thai citizenship based on marriage to a Thai citizen.

 

Then you can do what you want.

[Isaanbiker]

She should make her last will, done with a lawyer, considering all essential points.

 

 Having a witness, a friend of yours, is also useful. But please make sure that nobody has taken any credit on the house. 

 

I'm not saying that your wife did, but it happened before.

 

 One poster mentioned to give you the right to live in "your house" for one year? 

 

No, you should have the right to live there until the end of your days. In the end, it's your house, paid from your money. 

 

And don't forget a good life insurance for her. Or more than one. 

 

I don't see a problem unless your wife is gambling when you're busy deleting posts......

 

 I hope that you and your wife are as healthy as anybody can be, and you'll both live another 50/100 years.

 

     

Edited March 15, 2020 by Isaanbiker
Coughing a lot. Checking fever. Hicks.

[SAINT THOMAS]

I have 3 land deeds 1 in Surin and 2 in the village were our house is, my wife has no Thai children from a previous marriage to an American, 2 sons born in america or it would go to the children.

 

I have a policy at the government office for 200,000 baht think it is in case she died ahead of me in my name. 

 

I had such problems with my wife family over the years Since 2002, when I went to do a 30 year lease with the Judge in Prasat he instead put me on the back of the Deed to the land and gave a yellow book on the property with the house on it, the other property which I bought last year is right behind the house which I just filled in with dirt, fenced off and planted all fruit trees on about 2 Rai. 

 

I don't know if I would even have to give or sell the land and house with my name on the back of the deed? I will worry about that when and if the time comes or if she died before me.

 

I have to much invested in the house and lands in the village to sell it and who would buy it or have the money to buy it anyway 9 - 10 Million Baht? except the Surin land which is located in an area of all apartment buildings that I have 2.2 million baht invested in all paid with cash, so I don't owe anything on any of the properties or house.

 

My wife is 5 years older then me so I will give it all to someone I trust and that is not many if any and do a 30 year lease at the very same time of transfer, it would also have to be someone I would want the properties and house to go to when I died, that is the most important thing to me, I will hold on to the land deeds so they don't borrow on them also.

 

Money and Thais is a very dangerous combination.

 

My buddy did a 30 year lease with his girlfriend who died in an accident a few years ago, he paid cash for the house and cash for a car, the daughter won't give him the car and doesn't want him in the house, so what would someone do then?