Inheritance of jointly owned chanote on the death of a partner intestate

[najomtiensun]

I've been asked to get some clarity on this matter before consulting a lawyer to advise further. 

 

Pearson A was married to Person B and died 2016 intestate. Person A had a previous marriage dissolved and has 3 surviving children. Person B is alive and with 3 children.  Person A altered the chanote legally at the land office whilst living to add his wife's name. 

 

Person B now wants to contact the land office and get the chanote changed to have her name as the sole owner. 

 

My question is do Person A's children have any rights to this land and secondly will they be contacted by the land office/court during this process ?

 

Many thanks for any help you can provide with this matter. 

[ezzra]

it seems that unless one of TVF is lawyer or a learned person in thees mattes, the correct answer should come from a lawyer who specialize in wills and probates so to be on the safe side and get the correct legally backed advise...

[Peterw42]

I think you may need to consult a lawyer.

I think It will come down to whether the property is considered person A's pre-marital asset (inherited by children) or a marital asset (inherited by spouse).

 

[najomtiensun]

Many thanks for those replies we are keying up a lawyer- just interested in views before we proceed. The land on which he had a sort of shanty house was built and financed after his first divorce. His children never lived on the land and he spent quite a time there with his second wife during which time he bought the land , Person B was married to him for nearly 20 years. 

 

I understand if she  Person B died intestate then his children may have some claim. No one is living on the land at the moment. 

[Delight]

When the original wife of person A died nothing changed. Presumably the 3 children were too young to issue a claim.

Person A then marries person B.

It is agreed the husband and wife

 have equal shares in the land.

Now that person A has died then his assets(50% of the the land) will be split as follows.This assumes that probate is organised .

1. descendants ie his 3 sons

2. parents

3. brothers and sisters of full blood

4. brothers and sisters of half blood

5. grandparents

6. uncles and aunts

7. The surviving spouse is a statutory heir, subject to the special provisions of Section 1635 Civil and Commercial Code.

The children of person B cannot have any claim

 

Therefore the wife will either 25% or 50 % of the estate .

My knowledge of item Section 1635 Civil and Commercial Code-  is incomplete.

A Thai official will decide. This Thai official will only get involved when requested to do so. The action will occur following  some action by  the local Amphur  who will issue death certificate. I see no need for a lawyer. Thais do not use lawyers  unless absolutely necessary.

The stages from death certificate to a judgement will exist.  No doubt the Amphur can advise.

I cannot see that person B will get the lot.

Also-when person B dies her share will no doubt go to her 3 offspring.

Her motive to  own`the lot is understandable.

If at the end of the day it ends up being jointly owned by all 6 offspring -then dealing with that could be interesting.

[najomtiensun]

6 minutes ago, Delight said:

When the original wife of person A died nothing changed. Presumably the 3 children were too young to issue a claim.

Person A then marries person B.

It is agreed the husband and wife

 have equal shares in the land.

Now that person A has died then his assets(50% of the the land) will be split as follows.This assumes that probate is organised .

1. descendants ie his 3 sons

2. parents

3. brothers and sisters of full blood

4. brothers and sisters of half blood

5. grandparents

6. uncles and aunts

7. The surviving spouse is a statutory heir, subject to the special provisions of Section 1635 Civil and Commercial Code.

The children of person B cannot have any claim

 

Therefore the wife will either 25% or 50 % of the estate .

My knowledge of item Section 1635 Civil and Commercial Code-  is incomplete.

A Thai official will decide. This Thai official will only get involved when requested to do so. The action will occur following  some action by  the local Amphur  who will issue death certificate. I see no need for a lawyer. Thais do not use lawyers  unless absolutely necessary.

The stages from death certificate to a judgement will exist.  No doubt the Amphur can advise.

I cannot see that person B will get the lot.

Also-when person B dies her share will no doubt go to her 3 offspring.

Her motive to  own`the lot is understandable.

If at the end of the day it ends up being jointly owned by all 6 offspring -then dealing with that could be interesting.

Thanks for that comprehensive answer. You seem very knowledgeable. Do you consider that the chanote which has both names and was acquired wholly during the marriage to be a material difference ? As the surviving wife is seeking to change the name wholly to herself and through that acquire total control of the land and any proceeds from the sale. 

[Delight]

1 hour ago, najomtiensun said:

Thanks for that comprehensive answer. You seem very knowledgeable. Do you consider that the chanote which has both names and was acquired wholly during the marriage to be a material difference ? As the surviving wife is seeking to change the name wholly to herself and through that acquire total control of the land and any proceeds from the sale. 

 She only owned 50%  at best. Acquired during the marriage.

In UK -for example- the land would go to her  automatically. In Thailand it is all about blood relatives. You will notice from the 'pecking order' list that I submitted potential beneficiaries 1 thru 6 are all blood relatives. Number 7 -i.e. the ex spouse is almost an after thought.

 

She will retain her 50% and get between 25% and 50% from the estate of the deceased. Either way she will have controlling interest in the land.

 

I cannot see any money coming into the picture until the land  is sold.  When will that occur-only she can make that decision.

 

Her aim to acquire the entire land  and deny the 3 sons their inheritance -must be illegal.

Bribery is popular in Thailand.

 

She could always try and buy it from them. 

She will state that the land will never be sold. So -3 sons -take your money and run.

 

You have few friends  when it comes to money!

 

 

 

 

[najomtiensun]

Many thanks for that most insightful reply.  That has made it very clear and pointed out a way forward. Like most poor they all need the land to be sold so it looks like she will have to sell at a fire sale price probably and give the children what is due to them. 

 

Just a thought though what if the land was sold to a relative for a cheap price - would that be the determinant for what his sons would inherit ?

[Delight]

5 hours ago, najomtiensun said:

Many thanks for that most insightful reply.  That has made it very clear and pointed out a way forward. Like most poor they all need the land to be sold so it looks like she will have to sell at a fire sale price probably and give the children what is due to them. 

 

Just a thought though what if the land was sold to a relative for a cheap price - would that be the determinant for what his sons would inherit ?

 Right now -assuming that probate has not started/finished -then the land cannot be sold.

The land office will need to see the dead husband or the probate judgement.

 

I sense that you have an interest in protecting the  3 sons.

(I could be very wrong on that one)

Somebody needs to visit the Amphur and get the process started.

 

The sons will each get a proportion of the sale price.

 

You have not specified the ages of the 3 boys.

 

Somebody -ideally in the family- needs to help them.

[khunPer]

On 2/28/2021 at 2:53 AM, najomtiensun said:

My question is do Person A's children have any rights to this land...

When not having a last will the order after Thai law, according to the book "Thai Law for foreigners" is that half of the estate goes to the spouse, and half of the estate to children (if any).

 

As the land is already shared between two owners, A's share of the land is 50%, of which half goes to the spouse, and the other half divided between A's three children; i.e. the children are sharing 25% of the value of the property.

 

You need to consult a lawyer for correct answer and further procedures.

[najomtiensun]

16 hours ago, khunPer said:

When not having a last will the order after Thai law, according to the book "Thai Law for foreigners" is that half of the estate goes to the spouse, and half of the estate to children (if any).

 

As the land is already shared between two owners, A's share of the land is 50%, of which half goes to the spouse, and the other half divided between A's three children; i.e. the children are sharing 25% of the value of the property.

 

You need to consult a lawyer for correct answer and further procedures.

Thanks for that we are indeed taking that route of seeking legal advice. 

 

For info he was estranged from his children who apparently are layabouts and drug users and never took any interest in his wellbeing. From I understand they are entitled to their share of the sales price not the appraised price as determined by the land office for tax on the sale. 

 

The value over 20 years ago was very low I think in the order of 400000 for just a bit more than a rai which is located near a busy regional airport. We believe the appraised land value price would be close to 5 - 7  million which would attract a sales tax of at least 250k. 

 

One route my wife is considering as an interested honest broker in the affair is offering to buy the land from her sister for an amount say 1 million , pay the land tax and the resultant children shares and down the line when times are better try and sell for closer to the market price  recoup her costs and disburse a larger amount to her family members at that point. It should be added the family need the money desperately , are fairly destitute and the land is their only asset to help get them through this Covid time. 

 

[khunPer]

1 hour ago, najomtiensun said:

The value over 20 years ago was very low I think in the order of 400000 for just a bit more than a rai which is located near a busy regional airport. We believe the appraised land value price would be close to 5 - 7  million which would attract a sales tax of at least 250k. 

 

One route my wife is considering as an interested honest broker in the affair is offering to buy the land from her sister for an amount say 1 million , pay the land tax and the resultant children shares and down the line when times are better try and sell for closer to the market price  recoup her costs and disburse a larger amount to her family members at that point.

Just a point of view: I would not try a route with a internal sales of 1/5th or less of the real value, it could later hit hard back if someone get suspicious. 

 

Land office's appraised price for tax purposes might in some cases be far out compared to actual sales prices, and the text for land sales tax talks about appraised value or sales price, whichever is highest. There is a tax-calculator HERE.

[najomtiensun]

6 hours ago, khunPer said:

Just a point of view: I would not try a route with a internal sales of 1/5th or less of the real value, it could later hit hard back if someone get suspicious. 

 

Land office's appraised price for tax purposes might in some cases be far out compared to actual sales prices, and the text for land sales tax talks about appraised value or sales price, whichever is highest. There is a tax-calculator HERE.

Thanks we are considering backing away from this hornet's nest family wise though as far as I know you can sell land to a friend or family for any value you choose and as far as I know the dependents are entitled at that point to the share of the sale price at that point. The land offices assessment is completely independent and as far as they are concerned if the appraised value is higher and the resultant fair market value tax is levied appropriately and paid then they have no issue whether an intra family transaction is conducted at below market value. (I would have thought !).