Question On Wills And Inheritance

[PMK]

Hi,

We are raising a six year old niece as our daugther. Adoption would not be practical at this time The wife has a number of real estate assets and we want to be sure that the bulk of them go to her in the event of my wife's early death. There is no Thai we can trust as executor or to manage the estate although there is a farang that visits here regularly that I do trust.

Any suggestions?

Peter

[GuestHouse]

While you are raising your neice as your daughter unless you do adopt her she remains the legal child of her birth parents and it is they who would gain control of any assets she receives should you and your wife leave these to her. (I suspect that even if adopted her birth parents would be keen to reverse the adoption if your wife died leaving your neice a large amount of capital).

You mention a Farang who you trust, but I think this too makes more difficulties than it clears, a farang can certainly act as an executor to a will in Thailand, I have done so myself, but it becomes problematical when dealing with real estate.

Another difficulty is Thailand has no trust law, so your wife can't even leave wealth in trust for your neice.

I can't see a clear way around these two problems, so I'd suggest that you take legal advice from a reputable law firm (We use Tillek and Gibbons) for all our work - Certainly do not choose a local lawyer who might have 'local connections' that could well work against your best intrests.

Also what ever you do NEVER EVER sign over power of attorney in Thailand - you will get robbed.

If you really want provide a secure income/capital then you might want to consider doing a deal along the lines of any wealth you have back home being willed in trust to your neice and your wife willing a comparrable amount to you.

If your wife dies you get to keep the wealth that your wife left you and you can then choose to help your neice through education etc.

You might also have a will in which you yourself manage your wife's estate up and until your neice reaches the age of 21.

But believe me, I had to deal with the Thai family of a friend of mine who died. Acting as his executor both in Thailand and the UK I ensured the lawyers distributed his estate as per his wishes, but then had his wife's family come after me accusing me of having stolen the money that had been put in trust for his daughter. It is not an experience I'd rush into again, nor one that I'd ask anyone else to take on without them being aware of the problems that can arrise.

[naka]

Wise words (as usual) from GuestHouse.

Naka.

[Boyblue]

Wise words (as usual) from GuestHouse.

Naka.

Hi PMK i am a UK Will Writer and Estate Planner and work in the UK and Thailand.

you would be wise to take note of the comments made by Guest House.

Before i could give you any advice i have a couple of questions which would impact on the advice i would give they are:-

1. is your neice Thai?

2. are her parents alive?

3. where are your wife's real estate assets?

4. why would it be impractical for adoption? (although leaving a gift to your neice is legal without adoption, but the problem is as Guest House has already intimated, it her parents are alive)

depending on the answer to these questions the advice i would give would vary greatly. but in a nutshell you would probably be best advised to give your estates to each other so the survivior of you could look after your neice and then pass to her on second death, but depending on the answers to the above questions this part of the will is the tricky thing.

as suggested by Guest House, never give Power of Attorney to anyone in Thailand, if you did when your bought property, so that your lawyer could work on your behalf that is no problem as long as you asked for the attorney document after the work was completed and you (personally) destroyed it.

I have seen many properties and bank account balances dissapear between the death of a "Farang" and the next of kin getting of the plane!....

EPW

[absolutelyBangkok]

As said, let your wife write her will.

Name a good Thai friend as custodian until the niece gets 18.

That custodian does not have to be a family member.

Let the will be signed by four witnesses.

Everything that has to stand in front of a court in Thailand has to be signed by witnesses.

Then go to your local village/city administration and let the sealed will be stamped by the authorities.

You should be safe, the family couldn't do anything against such a will.

Or they'd to spend a lot of money for a very good lawyer.

[GuestHouse]

You should be safe, the family couldn't do anything against such a will.

Or they'd to spend a lot of money for a very good lawyer.

Alternatively they might spend a lot less 'under the table' or very much more likely proclaim 'look this Farang is taking our Thai daughter's money'.

Indeed if you get to court then fully signed up legal documents are going to almost certainly win the day - but its the getting to court before the assets are hived off that is the problem.

A well meaning official or bank clerk responding to that cry of 'look this farang is taking our Thai daughter's money' (or worse still our Thai land) and the next thing bank accounts have been emptied, land title's have changed hands and the court hasn't even opened your application yet.

Do not ever underestimate how bitter the battle gets where money and wills is concerned - adding a bit or Thai v Farang and its like throwing petrol on a fire.

I know, I've been there.

[tijnebijn]

Sorry to intervene , but I do not understand the term ' power of attorney ',

can someone describe that a bit furher please .............

[GuestHouse]

"Power of Attourney" is when you give someone, usually your lawyer, the power to sign legally binding documents/contracts on your behalf.

Examples are, you may want to buy a house and need the lawyer to do the document trasfer's for you, in which case you sign over a power of attourney to the lawyer.

There are two classes of Power of Attourney and two ways by which it is given.

Class one 'Limited and Specific' in which the person receiving the power has the right to perform specific duties on your behalf, these are listed in the power of attourney.

Class two 'General Power of Attourney' in which the person receiving the power of attourney has the right to perform wide ranging duties on your behalf.

The point to note is that in both cases the documents contract/signed are binding on the person who gave over power of attourney - the person who acts under power of attourney acts to all intents and purposes as the person who has given him/her that power.

And there in lies the problem - If you give over your power of attourney, say to manage a piece of real estate, then the person who has power of attourney may have (according to the power you have agreed) do more or less what he/she wants with the property.

In the west breaches of such trust are not un heard of, but a lawyer who does so would almost certainly go to jail, be struck off and never work as a lawyer again.

In Thailand breaches of such trust are common and the lawyer who does so almost certainly gets away scot free (well plus the plunder).

The two ways of giving power of attourney are by voluntary signing a Power of Attourney document (a contract) which should specify the limits of power - It is that document that is presented when someone signs on your behalf hence the suggestion that if you ever use a power of attourney you receive it back in your hand and destry it yourself.

The other way is when a court makes an order to take upon itself the power of attourney for someone the court deems cannot act for themselves. Examples are children below the age of majority and people suffering from mental health problems.

An very relevant example is old people suffering dementure - and while such accusations are often used in a derogatory sense against older poeple, I believe the management of assets in old age is going to become an increasingly important and difficult problem for expatriates in Thailand.

(This is not a dig - but an observation). There are very many old guys married in Thailand to women who have low or mediocre educational backgrounds and/or who come from backgrounds where they remain easy prey to unscruplous government officials, lawers, bank staff etc.

A percentage of these guys are going to suffer dementure as they age and without careful consideration of asset management, both they and their dependends (they themselves becoming the dependent) are going to be easy picking for the crooks around Thailand.

Leaving large amounts of cash or readily convertable property to a Thai spouse, or child in Thailand could create a huge problem after the Farang's death. For many it will and hence my suggestion that Farangs give careful consideration to asset management in their old age and after their death.

I certainly think people ought to be looking at using trust laws in their own country to look after themselves and their dependents as old age and death aproaches.

When we consider the age gap between many Thai/Farang relationships and children born late in life to Farang fathers then I think this issue is hugely important and never gets enough discussion.

I'd like to see a 'sticky thread' on the subject.

[tijnebijn]

Thank you very much for this very detailed , and obvious very advanced

and experienced knowledge that you share with us geusthouse !

I and many other members appreciate your efforts to make us understand

these quite difficult and complicated matters very much .

Would not be a bad idea though, for your suggestion to have a sticky thread

on this subject , it is very important indeed.

I for instance would like to know what the best way is ( me and GF are similar aged )

to make sure that our assets which are in her name , are still available free to

live into for me until I pass away , just in case , but with all these snakes

around not sure what to arrange and if it is smart wise to do so .

I thought everything automatically will go to the children , but after 18 right ?

But it will take a considerable time for them to reach that age ( youngest is 5 , and steph child is 15 ).

Not that I am overly concerned( we are still young) , we expatriates just have to learn knowhow .

Interesting thread this is !

[chicowoodduck]

Hi,

We are raising a six year old niece as our daugther. Adoption would not be practical at this time The wife has a number of real estate assets and we want to be sure that the bulk of them go to her in the event of my wife's early death. There is no Thai we can trust as executor or to manage the estate although there is a farang that visits here regularly that I do trust.

Any suggestions?

Peter

Your wife can create her own will by writing out what she wants done with her assests on her death in her OWN handwriting. She should also date and sign the will. You cannot write it for her. If possible, have her get the document notarized. It can be written out on a cocktail napkin, as long as she writes it ans she signs it! Just keep in mind that there has to be "testamentary intent," which means the will should state explicitly that it's a will (Last Will and Testament) and that your wife's assets (organizational list of all personal and financial data - bank location, numbers for all insurance policies, agents, mortgage holder, property holdings, etc.) should be distributed on her death the way it's called for in the document. With that said, your wife may be best biting the bullet and hiring a lawyer (possible Thaivisa search?) to prepare a trust or a will for her, together with a power of attorney and a health care directive, if not, there are numerous web sites that allow you to download examples of self developed wills.

[GuestHouse]

With that said, your wife may be best biting the bullet and hiring a lawyer (possible Thaivisa search?) to prepare a trust or a will for her, together with a power of attorney and a health care directive, if not, there are numerous web sites that allow you to download examples of self developed wills.

As I hav stated above, there is no Trust Law in Thailand so Trusts in Thailand are not an option.

And again NEVER SIGN OVER POWER OF ATTOURNEY in Thailand.... NEVER.

Or if you do don't come looking for sympathy in this corner when the inevitable happens.

[PMK]

Wise words (as usual) from GuestHouse.

Naka.

Hi PMK i am a UK Will Writer and Estate Planner and work in the UK and Thailand.

you would be wise to take note of the comments made by Guest House.

Before i could give you any advice i have a couple of questions which would impact on the advice i would give they are:-

1. is your neice Thai?

2. are her parents alive?

3. where are your wife's real estate assets?

4. why would it be impractical for adoption? (although leaving a gift to your neice is legal without adoption, but the problem is as Guest House has already intimated, it her parents are alive)

depending on the answer to these questions the advice i would give would vary greatly. but in a nutshell you would probably be best advised to give your estates to each other so the survivior of you could look after your neice and then pass to her on second death, but depending on the answers to the above questions this part of the will is the tricky thing.

Thank you all:

1) Yes, Thai.

2) Yes, and not married.

3) Thailand

4) Long story - mostly because it is so difficult with a farang adopting father with virtually no income.

Peter

[tijnebijn]

With that said, your wife may be best biting the bullet and hiring a lawyer (possible Thaivisa search?) to prepare a trust or a will for her, together with a power of attorney and a health care directive, if not, there are numerous web sites that allow you to download examples of self developed wills.

As I have stated above, there is no Trust Law in Thailand so Trusts in Thailand are not an option.

And again NEVER SIGN OVER POWER OF ATTOURNEY in Thailand.... NEVER.

Or if you do don't come looking for sympathy in this corner when the inevitable happens.

Think that should be very clear now !

I have discussed it with my wife , and (happily) she understands and says

only morons would sign such a document ...... So how naive one can be ........

Better advise then Guesthouse gave there is not , be careful what you sign folks !

[Loaded]

Apparently I signed a power of attorney with a solicitor who's doing work for me in a civil case. I was told he needs this to supboena docs/witnesses and appear in court without me being there every time. The wife and her family trust him and he has an honest reputation in Chiang Mai (Ok I know he's a solicitor) and it appears this type of thing is quite common in my type of case. Although I have few assests here Guesthouse has made me think. How would I best defend myself now against the solicitor's misuse of this document? IE can I cancel it?

PS I guess I am naive as this is the first time I have been in this sort of situation here or the UK.

Edited October 27, 2007 by Loaded

[GuestHouse]

Ask for the document back with a written and signed transmittal.

Then make a copy of the document (clearly annotated several times that it is a copy) destroy the original document but keep the copy together with the transmittal.