Question About Will For Land

[ELLHNAS]

I am planning to buy a land under a chanote or nor sor sam kor title. The plan is to do the usual thing which is either a 30 year lease or usufruct whichever is available in my local land office (Hua Hin). I realise that even this is not full proof in case of a divorce or in the unfortunate event that my wife passes away. I am not so concerned of a divorce since I consider it very inlikely but I do want to cover myself even more if she passes away before me. I believe the family can come in at this moment and lay claims on the property. Is it possible for my wife to name me as the sole heir of the property? I know that a foreigner cannot own land but I think this is one of the few cases that it is possible. I believe that a foreigner can inherit land in this way but has one year to sell it. If the property is not sold in one year, the land office or whichever department takes over and sells it and gives the proceedings to the owner minus fees. Could someone please confirm if this is correct and possible?

[Mario2008]

Yes, you can inherit land but must sell it in 1 year.

[Crossy]

Hopefully someone will find the relevant detailed law. I understand that you can inherit up to 1 Rai subject to it being sold or transferred to a Thai within 1 year, or possibly being allowed to keep it with permission of the relevant government body (not heard of that ever actually happening though).

BUT I read somewhere on Thaivisa that this only applies if there is NO Will, one of the few times where not having a Will is actually advantageous. Anyone else remember this, or am I imagining it?

[CDNinKS]

If there is no will the property goes to the wifes' Mother/Father first, then a few other assorted relatives. Unfortunately the farang spouse is quite a way down the list.

Get a will drawn up. Your wife can legally will the land to you and you have between 6 months (min) to 12 months (max) to dispose of the land.

[stgrhe]

The most important document is, as others have mentioned, a will, and this should preferably be in conjunction with duly registered usufruct.

Since you are legally married to your wife usufruct is by far superior in your case as it is much cheaper than a lease. However, if you are concerned about the lack of inheritance right you should instead go for a superficies.

The land office is Hua Hin will accept all three alternatives but they expect a brown envelope to change hands for a usufruct and a superficies. It is a very corrupt office.

[CDNinKS]

The land office is Hua Hin will accept all three alternatives but they expect a brown envelope to change hands for a usufruct

10,000 in my case was the magic number....that was 2 years ago.

It is a very corrupt office.

That's for sure....

[stgrhe]

The most important document is, as others have mentioned, a will, and this should preferably be in conjunction with duly registered usufruct.

Since you are legally married to your wife usufruct is by far superior in your case as it is much cheaper than a lease. However, if you are concerned about the lack of inheritance right you should instead go for a superficies.

The land office is Hua Hin will accept all three alternatives but they expect a brown envelope to change hands for a usufruct and a superficies. It is a very corrupt office.

[LivinLOS]

Since you are legally married to your wife usufruct is by far superior in your case as it is much cheaper than a lease.

Is it superior only because its cheaper ?? Or is it stronger in husband / wife agreements..

[stgrhe]

Since you are legally married to your wife usufruct is by far superior in your case as it is much cheaper than a lease.

Is it superior only because its cheaper ?? Or is it stronger in husband / wife agreements..

Both a usufruct and a superficies can be registered for life while a lease has a maximum term of 30 years. A lease is also expensive since there taxes involved and the yearly costs for the lease itself although the latter is like paying to oneself. However, the land owner, i.e. the wife, would be obliged to pay 12.5% tax on the yearly income from the lease or a value set by the land office, whichever is the highest.

[mrbojangles]

What are the options if you have a child ? My daughter is 3 and has both UK and Thai nationality.

Are there any options to have it left to her in the will?

[Mario2008]

Yes, a child can inherit without any problems. It is advisaible to make a will, as if there is no will she will have to contest with others for a peice of the cake.

A minor is protected by Thai law, in that the guardians cannot sell property such as houses and land without prior approval of the court.

[mrbojangles]

Thanks Mario. Didn't know if there would be an issue due to age but that seems fairly simple. Would the chanote actually be changed into her name at that time or would it be held in limbo until she comes of age (whatever that age is).

[ELLHNAS]

Thank you all for your replies. To summarize for me (legally married to a Thai wife) the safest option would be for her to make a Will assigning me as the sole heir and at the same time register with the land office either a usufruct or superficies thing. Is that correct?

I am not very familiar with superficies. How does that work and what is the Thai word for that? I know the Thai word for usufruct is "sitikepkin" or something like that. Is superficies more expensive then a usufruct and why is it better? Sorry for all the questions but I have to close this deal within two weeks. Thanks for your help.

[LivinLOS]

Since you are legally married to your wife usufruct is by far superior in your case as it is much cheaper than a lease.

Is it superior only because its cheaper ?? Or is it stronger in husband / wife agreements..

Both a usufruct and a superficies can be registered for life while a lease has a maximum term of 30 years. A lease is also expensive since there taxes involved and the yearly costs for the lease itself although the latter is like paying to oneself. However, the land owner, i.e. the wife, would be obliged to pay 12.5% tax on the yearly income from the lease or a value set by the land office, whichever is the highest.

OK those I knew..

I thought you were implying that a usufruct was 'stronger' in the case of it being dissolved / annulled by a wife due to the weakness of husband wife agreements.

[Mario2008]

Thanks Mario. Didn't know if there would be an issue due to age but that seems fairly simple. Would the chanote actually be changed into her name at that time or would it be held in limbo until she comes of age (whatever that age is).

It will be in her name, but untill she is an adult the guardians will act on her behalf. Certain actions, such as selling and renting out, require the prior approval of the court. They guard that any action is in the best inetrest of the child and not of the guardian itself.

[Sophon]

To summarize for me (legally married to a Thai wife) the safest option would be for her to make a Will assigning me as the sole heir and at the same time register with the land office either a usufruct or superficies thing.

Since you have already stated that you trust your wife, I don't really understand the point of registering a usufruct. The will will ensure that you inherit the land, which you as stated will have to sell within a timeframe of no more than one year. However, I it seems very unlikely to me that you will be able to sell the land to anyone as long as there is a usufruct registered on the deed. So you will probably have to cancel the usufruct anyway after your wife dies.

The usufruct may give you some protection in case of divorce, but the accepted wisdom seems to be that any agreement between husband and wife can be cancelled at any time by either party if that agreement favours one partner over the other. I believe a usufruct would fall into that category.

Sophon

[stgrhe]

To summarize for me (legally married to a Thai wife) the safest option would be for her to make a Will assigning me as the sole heir and at the same time register with the land office either a usufruct or superficies thing.

Since you have already stated that you trust your wife, I don't really understand the point of registering a usufruct. The will will ensure that you inherit the land, which you as stated will have to sell within a timeframe of no more than one year. However, I it seems very unlikely to me that you will be able to sell the land to anyone as long as there is a usufruct registered on the deed. So you will probably have to cancel the usufruct anyway after your wife dies.

The usufruct may give you some protection in case of divorce, but the accepted wisdom seems to be that any agreement between husband and wife can be cancelled at any time by either party if that agreement favours one partner over the other. I believe a usufruct would fall into that category.

Sophon

Sophon, I think you miss to point with a usufruct or a superficies. It is correct that a will will be enough to transfer the land to the husband in the unfortunate event of an early passing of the Thai wife. However, the husband must then sell the land within a period that must not exceed one year.

If a usufruct or a superficies has been registered for life in favour of the husband, the husband could still continue to live on the land until he passes away even though the land would be sold to a third party.

[Sophon]

To summarize for me (legally married to a Thai wife) the safest option would be for her to make a Will assigning me as the sole heir and at the same time register with the land office either a usufruct or superficies thing.

Since you have already stated that you trust your wife, I don't really understand the point of registering a usufruct. The will will ensure that you inherit the land, which you as stated will have to sell within a timeframe of no more than one year. However, I it seems very unlikely to me that you will be able to sell the land to anyone as long as there is a usufruct registered on the deed. So you will probably have to cancel the usufruct anyway after your wife dies.

The usufruct may give you some protection in case of divorce, but the accepted wisdom seems to be that any agreement between husband and wife can be cancelled at any time by either party if that agreement favours one partner over the other. I believe a usufruct would fall into that category.

Sophon

Sophon, I think you miss to point with a usufruct or a superficies. It is correct that a will will be enough to transfer the land to the husband in the unfortunate event of an early passing of the Thai wife. However, the husband must then sell the land within a period that must not exceed one year.

If a usufruct or a superficies has been registered for life in favour of the husband, the husband could still continue to live on the land until he passes away even though the land would be sold to a third party.

No, I know what a usufruct is. My point is that noone will buy the land (at least not for anything close to market value) if there is a usufruct on the land allowing the OP to live there until he dies. Would you buy the land under such conditions?

So in order for him to sell the land as he is forced to do, he will first have to cancel the usufruct.

Sophon

Edit! Just a thought.

I know that if you are not able to sel the land within the 12 month timeframe, the land will be force sold. I don't know if they can force you to cancel a usufruct under such circumstances, or if they would just sell it for whatever money they could get (which would be very low since the new owner wouldn't have use of the property). If they just sell it, I guess the usufruct could be handy assuming the value of living in the house is of more value to the OP than the money for the property.

Sophon

Edited August 31, 2011 by Sophon

[ELLHNAS]

To summarize for me (legally married to a Thai wife) the safest option would be for her to make a Will assigning me as the sole heir and at the same time register with the land office either a usufruct or superficies thing.

Since you have already stated that you trust your wife, I don't really understand the point of registering a usufruct. The will will ensure that you inherit the land, which you as stated will have to sell within a timeframe of no more than one year. However, I it seems very unlikely to me that you will be able to sell the land to anyone as long as there is a usufruct registered on the deed. So you will probably have to cancel the usufruct anyway after your wife dies.

The usufruct may give you some protection in case of divorce, but the accepted wisdom seems to be that any agreement between husband and wife can be cancelled at any time by either party if that agreement favours one partner over the other. I believe a usufruct would fall into that category.

Sophon

Sophon, I think you miss to point with a usufruct or a superficies. It is correct that a will will be enough to transfer the land to the husband in the unfortunate event of an early passing of the Thai wife. However, the husband must then sell the land within a period that must not exceed one year.

If a usufruct or a superficies has been registered for life in favour of the husband, the husband could still continue to live on the land until he passes away even though the land would be sold to a third party.

I think the point that Sophon was trying to make was that since the land MUST be sold in case of death of the Thai wife, no one will buy a land with a usufruct so it will have to be canceled. Since it is like that is it maybe better to name as heirs her family? That would mean that they can take hold of the land only in the case of my death. Although I feel uncomfortable doing that, it is the same as placing a bounty on my head

[Sophon]

I think the point that Sophon was trying to make was that since the land MUST be sold in case of death of the Thai wife, no one will buy a land with a usufruct so it will have to be canceled. Since it is like that is it maybe better to name as heirs her family? That would mean that they can take hold of the land only in the case of my death. Although I feel uncomfortable doing that, it is the same as placing a bounty on my head

I guess you could still register the usufruct and have your wife will the property to you. That would give you the choice of selling the property to a third party (after cancelling the usufruct), or alternatively keeping the usufruct and selling the property to your wife's relatives for a nominal amount.

That might, however, result in higher transfer costs than if it were willed directly to the relatives.

Sophon

[donx]

If the land is willed to a foreigner that holds the usufruct, it seems to me that it would be very easy to cancel the usufruct if the foreigner is interested in selling the land at market value. However, if the intension of the foreigner is to keep living on the property, then leaving the usufruct in place and selling the land for a nominal amount seems to be a good approach. In fact, my Thai wife will buy anyone's land with a usufruct if the price is very low. It would be an investment for our children. If the current market value is 1 million baht, she'd be willing to buy it for 10,000 baht.

My point is that it won't be hard to sell the land for a small amount. The usufruct ensures that the foreigner can live there until he/she passes away.Besides, I'm not convince that the land has to be sold. As far as I am aware, the only requirement is that the land needs to be in a Thai's name within a year. The land can be given away.

[Tanaka]

Ellhnas, be aware that usufruct and superficies are two different things. A usufruct entitles you to use and to benefit from a piece of land however large. A superficies is for buildings only and entitles you to own your house on the land. It must be taken out before a house is finished. If no time-limit is stipulated on the Chanot, they are for your life. Kathalavenis?