Land "inheritance"

[JimGant]

Facts:

Married to a Thai. We built a house on "her" property. I've got the 30-year lease to remain on the property should she check-out first. We're in the process of rewriting her Will to accomodate the fact that she can no longer leave "all her earthly possessions" to me (which was the case years ago when it was written) due to Thai law on foreign land ownership. First marriage for both, no children.

Plan of Attack:

Will indicate in Will that should Thai law still preclude my inheriting the property, that my Thai niece will take title. (It would be nice if Thailand had Trust provisions for property, with the niece being Trustee; but this nice bit of law from Mother England apparently doesn't exist here.)

Questions:

1. Is there anything legally enforceable we could put in writing that could exert some kind of control over the niece by me (other than the lease) even though she'll own the land free and clear? My thinking is, what if 10 years as a widower, I'd like to sell the property and move on? We will have a written agreement with our niece over such things as, I'll pay all expenses, taxes, etc. related to the property. And the niece would probably honor any request I made, including selling the land. But something giving me legal power would be nice. (But I have no real hope any such written agreement would have contractual legality under Thai law -- just hoping---.)

2. How long can land title remain in a deceased's name, i.e., what are probate time-frames in Thailand? (If I could wait a couple years, maybe the law would change in that time.)

3. I can own the house. Anything to be gained by leaving the buildings to me? Can the buildings have separate deeds same/similiar to those existing for the land?

4. Whose the best lawyer in Chiang Mai to address this?

5. What questions should I have asked (and had answered)?

Many thanks in advance for any help you can provide.

[Kan Win]

http://www.phuketgazette.com/issuesanswers...ails.asp?id=587

Property and Wills

I’m a Thai woman married to a British man and we have a two-year-old son, who has Thai nationality.

If I should die, my will provides that my properties – five rai of land and three houses, which were acquired after my marriage – will be inherited by my son and my husband.

However, I’m worried about what would happen if my son and I should both die. How can I ensure that under Thai law my properties would be inherited by my husband?

Thursday, September 4, 2003 Sonia, Phuket Town.

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“You should make a will in which you name your husband as the executor of your will and list how you would like your assests to be inherited. You can provide that your husband can sell or rent out the properties and receive the revenue.

With a few exceptions, foreigners generally cannot own land. Hence, your husband probably will not be able to either.

However, by naming your husband as the executor of your will, in the event that you and your son should both die, your husband can apply to a court to be the appointed executor of your will, and this will be registered on the back of the land title deeds.

That will give him the right to lease, sell or do anything else with the land, as long as he complies the instructions in your will. ”

Thursday, September 4, 2003 Sam Fauma, International Law Office, Patong.

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Kan Win

That is what I found on this one.

Hope it helps you.

Good Luck

[Guest IT Manager]

PM me I can put you in touch with a lawyer may be able to help. Personally, I think you have left it a tiny bit late to be thinking this now, but thats just my impression.

[JimGant]

Personally, I think you have left it a tiny bit late to be thinking this now, but thats just my impression.

You might be right. I thought the 30-year lease thing would be sufficient. And the existing Will, albeit written in the US, should be valid here, at least according to legal feedback found earlier on this forum. And as Executor and inheritor of all, I felt ok about sorting out how to retitle the property. Anyway, for my enlightenment, and for those reading this who may not be so far along this road, what steps should have been taken earlier? Probably seeing a lawyer is one step, no doubt.

[dutch]

This is a great thread for me.

Sorry I cannot be of any help at the moment,but I will follow the information with the highest attention

[JimGant]

Kan, thanks for your Phuket input:

"However, by naming your husband as the executor of your will ... this will be registered on the back of the land title deeds. That will give him the right to lease, sell or do anything else with the land, as long as he complies the instructions in your will. ”

This is good info. It implies to me that as long as the deed residing in the land office has my name as Executor on the back, they (the land office authorities) will be happy that they have recourse to collect taxes, whatever. The question remains, tho', how long can I do this? If there is no set time to retitle land after an owner's demise, then this could be a way around having to retitle, for many years at least, with a Thai relative.

Another thought. Why even have my niece named in the wife's Will? As long as the Will says I have complete control on the disposition of the land, I can then decide, as Executor, just how to do so as events unfold. Besides, the niece could be out-of-favor at that time. One option that comes to mind is, as Executor, establishing that bogus land holding corporation, with Thai majority ownership, that farangs use in lieu of the 30-year lease option.

Anyway, thinking out loud on this forum is at least lining up bullet points to share with a lawyer ... better than going in cold and having the lawyer lay out all the options (they're usually not as smart as they think, at least those in the States).

[sbk]

Yes IT, I would like to know why you think he has left it a bit late? I mean, she's not dead yet!

My husband and I haven't done anything at all mainly 'cause we didn't know what to do. Wouldn't trust the lawyer we have here to draw up my shopping list much less a will! I have always told my husband he can't die first because then I would be left with nothing, but now it seems possible that there is something we could do. If I ever manage to get citizenship, obviously this would be a moot point, but until then a will that would not leave me out in the cold would be nice. If anyone has some info please add to the thread.

[TizMe]

And the existing Will, albeit written in the US, should be valid here, at least according to legal feedback found earlier on this forum.

Is this right? I always thought that 2 wills were needed, one in Thailand for your assets in Thailand and another in your country of origin.

[JimGant]

There was a thread about this on this forum awhile back. http://www.thaivisa.com/forum/index.php?sh...&hl=inheritance

Typical lawyer argument. But the argument that "having two wills" could revoke one or the other was enough for me. So it seems logical -- and very legal -- that rewriting our US Wills to account for Thai nuances is the way to go. One Will, nuances of two countries accounted for.

The following is from a well-known Thai law firm.

http://www.tillekeandgibbins.com

QUOTE: "The law recognises several methods for preparing the will. First, the will can be holograohic, that is, the donor writes it in his own hand with the date and his signature on it. No witnesses are required. UNQUOTE

So after we reaccomplish the wife's US Will with Thai nuances, have it blessed and witnessed in the US, then we'll have it written (actually, translated) into Thai.

But why pay a lawyer to do this? Thailand accepts holographic Wills (per the above paragraph), so why not just have the wife write in her own hand a translation of our US Will, complete with all the Thai applicable nuances. This is NOT, then, a second Will, but just a holgraphic translation of her existing US Will. The preamble will state that this is "my last Will and Testimony, and is a direct translation of the attached English language Will and Testimony, dated blah blah." As far as Thailand is concerned, the wife has done more than required: a holographic Will written in Thai (all that's required), but additionally, has provided an attached certified-in-the-US Will, signed and witnessed. Overkill.

Anyway, this would seem to cover all the bases, but maybe the following:

I'll be the Executor of my wife's estate in both the US and Thailand. However, should we both be in the car when the Mach 1+ Bus hits, both our Wills will make arrangements for an Executor and Executor Agent to cover both countries.

[maxbkkguy]

Hi guys !

I been informed by my local thai lawyer is that anything’s that is bought after the marry (legal registered in thailand) is belonged and shared between husband and wife. If assets are bought before marry (legal registered), it will belong to individual wife or husband side to keep.

My case :

I bought a landed house in Bangkok for 2 millions bahts. I have tried to make a leased contract with my thai wife at the land department but got rejected by the land official. Reason given is that the leased contract draw up between husband and wife is not recognized according to thai law just because we are both legal registered and married. Meaning to say, there are no such thing as wife lease the landed house or assets to husband.

When I heard this, i was astonished. I told him what about 30 yrs leased contract as stated by the thai law for foreigner. The officer informed me that it only imply to foreigner who are not related to the leaser or owner. We can do it before we legally register our marriage not after.

How true is this story?

In the end, i have asked my thai wife to make a 'will' and 'willed' our current property to my 3 thai children as the sole beneficial. Hopefully, our house will still remain in our family even one day my wife will to 'go' before me.

[JimGant]

Max,

Looks like you encountered a new interpretation of lease law.

Our land office knew we were married when we acomplished the lease, but that didn't make any difference with them. Ditto for some other friends of ours. Our marriage isn't registered in Thailand (wedding in States), but the land office wouldn't know that. But, again, they didn't care.

Looks like land offices, like immigration offices, can get creative with the law. Too bad you can't change your land office.

[cathyy]

I have heard of a simple way to at least be allowed to live in the house for the rest of your life if the Thai spouse dies. There is some paper you have registered at the land office which stipulates the life tenancy of the non-Thai spouse. It is cheap, like about 45 baht. It can ONLY stipulate the tenancy of an immediate family member. So even if the Thai relative inherits, the spouse still has sole possession of the house and land. I wish I could be more specific, but I only just heard about this on my recent trip to Thailand, and didn't get all the details as It does not apply to me and my husband - a farang couple. Maybe this can get you started, anyway...I heard it is not well-known about.

[JimGant]

Thanks Cathy. You might be refering to the concept of "usufruct." But, anyway, my lease allows me to stay on the property. My concern is who's going to be my landlord and how much control I have in the matter.

[maxbkkguy]

Looks like land offices, like immigration offices, can get creative with the law. Too bad you can't change your land office.

Either the officer who spoken to me that day has creative mind or I’m just being bad luck to have faced him that day.

I still remember that very day when i have prepared the revel ants papers and documents all ready to submit to land dept. I thought it will be smooth sailing and simple as it seems but unsuspected thing did really happen. This really pause me to think further before I’m going to buy more property under my current Thai wife name.

You know like investment in stocks, they always said don’t put everything into one basket , must diversify your investment. I’m planning to delay any future purchase of land till my older son reach 21yr first. Since I have 3 children whom are now all holders of dual citizenships in Thai and country of my origin.

It really makes good sense to divide those properties under many family members. At least if one day my thai wife ever kick me out of the house, I can still go live with my 3 other children.

BTW, that day the officer did further explain to me that as a 'common thai registered' couple, we are equally responsible for our very own family bank loans, personal debts , credit cards debts etc. And it irregardless whether the husband or wife who actually go and take out the loans from the bank.Both are equally responsible for it. You can draw up papers, signed by both and stamped for all they know, wehther it is legal binding by itself or not , nobody can guarantee you on this.

Those so called legal contracts we draw out with our spouse from our very own legal thai lawyers, does it really carry any weight in the eye of the thai law. We only knew the usefulness of these legal documents when we present our case in Thai court itself.

So far what we read and see here are only ‘prevention measures’ from our side. Have any foreigners here who have friends who actually go through the whole proceeds of inheriting assets from Thai spouse themselves. It will be really helpful to hear some real life time cases regarding these matters.

As we all knew that there are always many suggestions by our Thai lawyer’s side .Just remember ,our very own lawyer interpretation of law , doesn’t mean the same meaning from the thai judge side?

As for my own case, this land dept officer can misinterpret this '30 yrs leased thing' in the way is only fair to thai ppls and not foreigner . I 'm curious to know the outcome ruling from the thai judge ruling if any, regarding thai spouse family members fighting a inheritance with a foreigner standing on the other side. Who do you think the thai judge will side eventually?

Been informed also by my thai lawyer is that if my thai spouse was to pass away, if there is no written 'wills' draw out by her.

All the assets in her name will be divided into husband (include foreigner too) getting 50% share and the other 50% split between your in-law and no. of children if you have any.

Although foreigners are not allowed to own land in Thailand but they are still entitle to the cash collected from the sale proceeds of their thai wife assets.

Anyone know anything about this too?

[camel_jockey]

Hi Jim,(or anyone who wishes to reply)

A favour please, seeing as you seem to be going through a process that I too will soon be having to do, what would your top 10 questions be to a lawyer when the time comes to go and sort sort all this stuff.I'm aussie, the wife to be is Thai, she has a townhouse in BKK(mortgaged,which we plan to keep) and I have property in Aus, mine will be sold in the future to provide $$$ for house/land/ business in LOS.Any advice on how to protect my investment if things turn brown or the bus gets one or both of us first.No kids are invovled,YET!

[dr_Pat_Pong]

Have her lease the townhouse to you for 30 years with a right of renewal for another 30. You need a lawyer.

[JimGant]

Just be sure to ask the lawyer how he/she arrived at the rental figure (You have to provide the Land Office with the total rental value; they then take a percentage of this, which you then pay. It was either 2 or 5%, I forget which.)

I say this because our neighbors hired a lawyer to accomplish the 30-year lease. What they got in return for a 10,000 bt fee was the privilege of paying far too much to the Land Office, plus a translation of the lease into English.

How do we know? The wife, in preparing for our lease, went to the Land Office and nicely asked what was a fair rental value for our property. The figure they provided was way below what our neighbors' lawyer had come up with, and this for a similar property (they had given us copies of all their paperwork). In fact when the wife asked the Land Office guy is this was legal, he smiled and said we could pay more if we liked, but it wasn't necessary. The guy got a well-earned 'tip' from us when the lease was drawn up.

I doubt the lawyer got anything from the Land Office for this: the money paid is all recorded, so doubtful any of it slipped under the table. Just laziness, I imagine. No effort to do their own checking with the Land Office. This law office has probably been using the same rental values for years.

So. if you do get a lawyer, make sure you, wife, lawyer, and land office have a discussion on rental values. Also, remember Thai law degrees are undergraduate affairs. So get a lawyer with plenty of experience.

Oh, I'm not where I can get to our paperwork, or I would provide the rental values we received.

[maxbkkguy]

Do you wife want to register the marriage in Thailand.

If you bought the townhouse before she register the marriage in Thailand, the property will be belong to her and her family to keep. If one day she deceased, the townhouse will be passed on to her family members automatically.

If you have registered you marriage in Australia , you still need to inform the 'Amphur' of her marriage so she can change her surname to your surname. Once that is done, it will be recorded in her 'Amphur' and her Thai I.D card will bear your surname and she is regarded as 'Mrs.' .And whatever in the future she is going to do, she will has to need her husband/foreign husband consign before she can proceed further.

Don't be tricked by some Thai girls who always like to say that if she was to register her marriage/ inform 'Amphur' of her overseas marriage in Thailand, she will lose her right as a Thai citizen to buy any landed property.

The law has been changed somewhere in 1997 which already allowed any Thai lady, who marry foreigner to buy landed property so this is no longer a issue anymore.

I bought my landed house after we have informed the 'Amphur' of our overseas marriage. And then asked my thai wife to ‘willed’ it to our 3 thai children.

To re-register our marriage in Thailand is the least thing we can do to protect our interests in Thailand.

Those 30yrs plus 30 things, nobody can guarantee you will get to stay till lease expire. Until now i believe none of us have fully seen the end of the lease expire yet. Moreover, whoever is your future new landlord will has the right to overwrite the old lease contract you had with you thai wife .

If the family member were to fight to try to sell off the land, there nothing you can do. What you signed is with your current thai wife and may not be in force anymore if her parent took over as the new landlord.

The only way is to have the property put it under your thai children name if you have any. You can ask the land dept to put your child name in as the beneficial if your child is under 21 yrs old. If you wife was to decease, the land dept will ‘safe guard’ the property till your child reach 21 yrs and then pass it to them to stay/sell it .

Morally, I think you are always safer with your own blood and flesh than to trust your property under her parent, brothers, sisters and not forgetting relatives.

Please note: Been informed by land officer that if we were to put our property under our child name in as beneficial now. Nobody , not even the current landlord (my thai wife) can sell or mortgage off the house. If she really wanted to sell it, she will then need to get a ‘court ruling’ before she can sell the house. This is because the thai law has duty to protect the child interest till he/she reach 21yrs.

Hmm….it seems this option is the best solution so far I came across. For those who have no intention to sell off their property for the next 20-30 yrs. You can choose this option. This piece of thai law is so powerful that it even overwrite your thai wife right although she is the rightful owner.

As for my case, I may need my wife to take out a mortgage for the house in the near future for my children university studies , so I have decided to opt this option out of my decisions.

Good luck!!

[dr_Pat_Pong]

If you have registered you marriage in Australia , you still need to inform the 'Amphur' of her marriage so she can change her surname to your surname. Once that is done, it will be recorded in her 'Amphur' and her Thai I.D card will bear your surname and she is regarded as 'Mrs.' .And whatever in the future she is going to do, she will has to need her husband/foreign husband consign before she can proceed further.

Not so now. Lasy year Courts decided that a woman can retain her family name, or if she has changed it by virtue of marriage, she can, if she wishes, change it to her old family name.

[maxbkkguy]

Not so now. Lasy year Courts decided that a woman can retain her family name, or if she has changed it by virtue of marriage, she can, if she wishes, change it to her old family name.

Having your husband surname in your thai I.D is just a custom thing to do. The most important of all is that in the eye of the Thai law, you are her legal marriage husband. I knew many thai including most thai men, never bother to register their marriage in their 'amphur'.

Maybe because there are more to be gained by had been remaining single in the eye of the thai law so that they can still hop around for more mistresses and not accounted for anyone.

Usually those thai who do register their thai marriage are those from high sociality or thai ppls with many asessts. Another group of ppls will be from foreigner.

In facts, we as a foreigners have nothing to lose but more to gain from it. Only our thai wife will lose her status as been label' single' again.

This will also make your yearly stay visa and application for thai PR in the near future more easily.

[camel_jockey]

We are planning on registering the marriage in Aus first, we haven't made a decision on LOS yet, the wife does'nt really care if we do or not, it basically comes down to what ever will be best/work for us re visa's etc.She already has the townhouse, and we were thinking of sticking her parents in it because there house gets flooded every year and her sister is a pain in the proverbial!Also to use it for storage for some of our stuff.

Max can you please clarify,when you mentioned farangs being able to buy in LOS, are you talking about buying just the house or land as well, because everywhere I read we cannot buy land.

PP, any numbers for a good lawyer/s?

[maxbkkguy]

Max can you please clarify,when you mentioned farangs being able to buy in LOS, are you talking about buying just the house or land as well, because everywhere I read we cannot buy land.

I never did say farang can buy land in Thailand .What i meant is your legal registered thai wife, who are allowed to buy the land under her name in Thailand.

Under the old law, thai lady who report their overseas marriage, they are barred from buying any landed property. Ever since 1997 under new ruling, this law had been altered.

If you are coming to stay in Thailand, having a thai registered marriage is much more convenient than a foreign marriage cert. Just remember you have to send your overseas marriage cert for translation to a thai version , stamped and verify each time by thai foreign affairs in bkk. You need to show it to thai immigration officer each time just to renew your yearly spouse visa in Thailand.

The time and money spent can be frustrating indeed.

[JimGant]

Moreover, whoever is your future new landlord will has the right to overwrite the old lease contract you had with you thai wife .

This is 180 degrees out from what those of us with 30-year leases have been told by lawyers and Land Offices. Is the source of your info other than hearsay?

[JimGant]

CJ,

See this thread re marriage registration in Thailand.

http://www.thaivisa.com/forum/index.php?sh...gistration&st=0

I'm comfortable that we DO NOT need to register our marriage (performed in the US) in Thailand. But I stlll have my ears cocked for counter arguments.

[dr_Pat_Pong]

I'm in agreement with you Jim.

[Khutan]

I had the pleasure of talking to my Thai Lawer the other week and this matter cropped up because my wife has a large rice property off in Issan. It came to her after we were married.

He also said you don't have to have a lease, but she can grant you some sort of "Right of Use and Occupancy" This means that you have exclusive use of the land until you die and it is nearly worthless if someone trys to sell it.....

The other thing he advised I could do was to set up a company with nominees etc that owns the property and moth myself and my wife could control the land that way. Then if I die, she gets my share of the company, if she dies then we re-structure the company (Some how?)....

Strongly advise you talk to a lawyer and get some "Paid" advice. It doesn't cost alot but can save a big problem later.

Just a rew more ideas to throw in.

[JimGant]

Strongly advise you talk to a lawyer and get some "Paid" advice. It doesn't cost alot but can save a big problem later.

Good advice. I'm getting all my questions (and proposed answers) lined up, and this forum certainly has been helpful in doing so. And ###### has recommended to me a good lawyer to see here in CM, which I will follow up on. Many thank ITM.

[maxbkkguy]

This is 180 degrees out from what those of us with 30-year leases have been told by lawyers and Land Offices. Is the source of your info other than hearsay?

That land dept officer that i went to do the 30yrs lease thing, did just that 180 degree turn on me. This is Thailand so don’t forget, anything can happen here. How ones interpret the law is very subjective.

Now you tell me who right and wrong?? I'm just as confused as you are.

Like i said earlier on, none of us here have had a renewal after the first expire 30yrs contract or have a experience dealing with the 'new landlord' when the thai wife pass away.

The new landlord who came along , takeover the property and if never get a single cent from the deal. Do you think that he/she will simply sit around and do nothing to lay their hand on the money.

What you and i have done are simply just ‘preventive measures'. On how effective these measures are, nobody can guarantee also.

[maxbkkguy]

I'm comfortable that we DO NOT need to register our marriage (performed in the US) in Thailand. But I stlll have my ears cocked for counter arguments.

You DON'T have to register your marriage again if you have already done that overseas.

What i meant is to inform the 'Amphur' of her province regarding her overseas marriage if any, that’s all.

Maybe when i wrote the word ‘RE-REGISTER’ your marriage in Thailand; you thought i meant to register your marriage again.

My personal true experience on this matter.

The 'Amphur' officer will not issue you another thai marriage certificate. All they do is that, after verify your overseas marriage cert. is true and in order, they will issue 3 copies of A4 papers stating clearly When, How and Where , you and wife registered your overseas marriage . These 3 copies will be ‘original stamped’ and signed by 'amphur' officer themselves.

You can laminate it if you want to. From now on, this ‘new document’ will be your Thailand marriage cert. All the wordings are written in thai so it will make much easier when you do your yearly spouse visa in Thailand.

It also goes to show how commitment your thai wife willing to comply with it. You be surprised many thai ladies will try to ‘shun away’ from this matter.

If you personal think this is not necessary, you can don’t bother about it.

Good luck !!

[maxbkkguy]

Hi JimGant,

Below is the link that you have given to me earlier on.I think you may have missed to take note of this posting by forumer ka1234. He did the 'right thing' , that is to regsiter his marriage in Thailand AGAIN.

See how this 'amphur' officer interprete the law to him just as i have encountered with my land officer'. See how this officer turn him down the first time round.

I must repeat myself again. Don't believe too much what your thai lawyer said.Until you have personal experience it, nothing is certain here.

http://www.thaivisa.com/forum/index.php?sh...gistration&st=0

ka1234 Posted: Sat 2003-12-13, 05:36:50

Senior Member

Group: Validating

Posts: 109

Member No.: 5,402

Joined: 2003-11-01

My wife and I got married in my european home country. Here's what we had to do:

1) Got the marriage certificate translated and stamped by the translation agency.

2) Got the translation stamped by my embassy.

3) Went to the thai dept of foreign affairs and had it stamped.

4) Went to the amphur to have the marriage registered in Thailand.

5) The amphur refused. Probably wanted a bribe.

6) Back to the embassy. The embassy called someone at the dept of foreign affairs. Someone at the dept of foreign affairs called the amphur and told them to stop fooling around.

7) Went back to the amphur and got the Thai marriage certificate.