How Can I Secure For My Partner If I Die?

[chubcake]

Hi,

I am very new here and i would like to have an advise from people who know of experience in my case.

Background is, me (Thai) and my (French) partner are living together in Bangkok for almost 15 years now.

Our relationship is good and we plan to keep it as long as we can.

We both working and having solid career and income, not much to call rich but not enough for comfortable retirement. My partner is soon retire and we trying to live in BKK as we are now.

We bough a single house on a tiny piece of land, last year.

It in my name both Loan and House, since Thailand do not allow foreigner to own properties.

And because of above reason, i afraid what would happen if i suddenly die by any reason.

How could i secure the right to live and own the house for my Partner?

I plan to apply for Loan insurance so my Partner will don't have to worry about paying loan but i want him to have the right to live or sales the house(+land) then keep the money.

Is there any legal action i can prepare for him at this point?

Does the WILL could apply for foreigner in above case?

By the way, we both PACS together under French law but i know it doesn't recognize here in anyway.

I been worry about so much but don't know where to ask.

Could you please help me and advise?

Thank you.

[isanbirder]

I've been told that the only way under Thai law is a 'mutual will'. This must be drawn up by a lawyer.

[TommoPhysicist]

Sell her a Usufrunct for the rest of her life on the property, registered on the chanote at the land office.

(cost of Usafruct at land office about 30bht)

You can back out if you divorce, but the new land owner (your family?) can't force her out if you die.

The will is pointless as she can't own the land, and would be forced to sell in the event of your death.

Edited September 9, 2012 by TommoPhysicist

[ProThaiExpat]

A Thai will recorded at the city hall will do the trick. When you leave the house and land to your partner, he will have a "reasonable time", six months to a year, in which to find another Thai to hold title but a new usurfuct in his name would be required.

I don't believe a usurfuct will be effective after the person giving the usurfuct, you, had died The property passes to your next of kin under Thai law, I suspect.

To be absolutely sure, create the usurfuct now and record it at the land office and make sure it is lodged on the back of the chanote. Then go to city hall and execute a will in his name for the land and the house and give it to him so if the will is honored, and it should be, he will have title to it if the usurfuct you have recorded now is not effective upon your death.

That is what I have done. Of course you can spend you money on a reputable lawyer to have him tell you whether a usurfuct will survive your death.

In the West, since the term of the estate, the usurfuct, that burdens the property, is the life of your partner, it would survive the death of the grantor, you. Not sure about Thailand.

[chubcake]

Thank very much for all advise.

It is seem to me that usurfuct and the registered WILL are not 100% secure the right for my Partner.

However, i will do both as you guys advise.

Now i need to look for sample of both.

For the WILL, is there any format at the city hall?

Meanwhile i need to think for back up plan.

Appreciate every advise.

Thank you.

[AyG]

A usufruct for the property is secure for your partner. The usufruct can be specified for the life of your partner, giving your partner an absolute right to live in the property as long as he shall live. Since, as a same sex couple, you can't be considered married in Thailand, then there can be no divorce to allow for cancellation of the usufruct. This means that even if you split up, your partner will still have the right to continue living in the property.

If your partner would want to sell the property within one year of your death, then a will leaving the house and land to him would work. (By law he would have to sell the land within 12 months.) Otherwise, you should leave the land to someone you trust and hope that in the event of your partner's selling up after more than a year the trusted person will give him the sale proceeds.

[AyG]

Incidentally, there's a sample will at http://www.thailandlawonline.com/Inheritance/sample-documents-thailand-last-will.html

However, it would probably be a good idea to use the services of a competent lawyer unless your affairs are very simple.

The sample will is in English, and your partner would need to get an official Thai translation in the event of your death. This step could be skipped if the will is written in Thai.

[chubcake]

Thank guys,

Actually i do wonder. My house is under long term loan. How can i do usurfuct since the Chanote is holding by the Bank.

On top of that, i now question the Loan insurance as well.

Even the insurance will pay the less of loan, who the bank will transfer the ownership to, since i already dead.

Any advise?

Thank you

[AyG]

I don't know the answer to the chanote issue. However, one legal website contains the sentence "First, a usufructuary is required to maintain the property in suitable condition by answering for minor repairs, taxes and fees including interests in outstanding mortgages" which suggests that it is possible. However, from the bank's point of view, a usufruct greatly reduces the value of the property leaving them at risk if you default on the mortgage. I suspect you'll have problems.

The property will be passed in accordance with what you specify in your will (or, in the absence of a will, to close living relatives in accordance with Thai law - not your partner - you really need a will).

I don't fully understand part of what you write, but I presume the beneficiary of the loan insurance policy is the bank, so the insurance money will be paid directly to the bank. If the insurance money doesn't cover the full amount of the mortgage outstanding your partner (or whoever else you specify as getting the property in your will) would need to pay the difference.

[LeCharivari]

A usufruct for the property is secure for your partner. The usufruct can be specified for the life of your partner, giving your partner an absolute right to live in the property as long as he shall live. Since, as a same sex couple, you can't be considered married in Thailand, then there can be no divorce to allow for cancellation of the usufruct. This means that even if you split up, your partner will still have the right to continue living in the property.

If your partner would want to sell the property within one year of your death, then a will leaving the house and land to him would work. (By law he would have to sell the land within 12 months.)

Correct on all counts; usufructs and wills are 100% secure, as long as the usufruct is registered and the will valid.

The only problem is likely to be the registration of the usufruct as the bank may not want the value of the property to be de-valued (as AyG said)as it will be by registering the usufruct, and they would be quite within their rights to refuse - depending on how much the mortgage is for they may have to refuse and not be allowed to lower the value of the property by that much if its value then becomes worth less than the mortgage.

You can only ask the bank and see if they agree or not.

The will issue is very simple - you each make out a will, in your native languages, leaving each other all your respective assets. Your partner's will should be in French, not Thai, or in French as well as Thai, unless you can prove (after his death) beyond any doubt that he could read and write fluent Thai and he therefore knew 100% what he was signing; wills made out in Thai on behalf of a foreigner have been contested and rejected by Thai courts. A lawyer should only charge around 1,000 baht each for a simple will.

[CM4Me]

On legal advice from a 'Thai Lawyer' this is what we did

Both of us made a Thai will leaving everything to each other. Our Lawyer then had both wills registered and lodged with City Hall (a very simple process).

Our Thai Lawyer advised us that I, being a farang, will have a "reasonable time", up to a year, in which either to sell the property or to find another (trusted) Thai in whose name the title could be transfered to (on the previso that a Usufruct is registered at the time of changing of title owner).

I also agree with 'LeCharivari' when he refers to the will of a farang being written in both Thai and the native language of the farang, so that there can be no contest in regards that the farang didn't fully understand Thai language

I doubt very much whether your bank will now allow you to add a Usufruct to the Chanote, seeing that its currently in mortgage to them.

Best advice - go and see a competent Thai lawyer

[chubcake]

Just back from work.

Thank you for all advise.

I will search for the Lawyer. Any suggestion?

To AyG,

Refer to your comment:

I don't fully understand part of what you write, but I presume the beneficiary of the loan insurance policy is the bank, so the insurance money will be paid directly to the bank. If the insurance money doesn't cover the full amount of the mortgage outstanding your partner (or whoever else you specify as getting the property in your will) would need to pay the difference.

Yes the loan insurance shall pay to the Bank. I searching for Insurance which will cover the whole remaining mortgage.

But what i am not sure if the BANK will transfer their ownership to whom?

Even my Partner with Usurfuct but he have no right to own land.

Understood as all above members mention that under usurfuct by me, my Partner shall have 1 year for new house owner and giving him the new usurfuct.

Guys, what if i do right this...

1) Giving Usurfuct to my Partner. (I need to talke with the Bank)

2) Making a WILL, giving every right of OWNERSHIP to my Partner, then register at Cityhall.

3) Making another the WILL, giving order to my own sister (they know each other very well), then register at Cityhall.

Content shall be like: She shall assist my Partner by take over the ownership (after i die) then grant another Usurfuct for my Partner. At the same time, she shall assist my Partner upon his request to sell the house and pass 90% of sales price after cost to my Partner. My sister shall keep 10% of sale price after cost. Each income tax shall apply individually.

Do you think it is secure enough?

(Based on the fact that i trust my sister)

Thank to you all again.

PS: I will search for Lawyer now.

[AyG]

(1) The bank does not own the property, it is simply holding the chanote as security to make sure that the property can't be sold or remortgaged until the mortgage is paid off. The property is yours, and in the event of your death it will be passed on to whoever you specify in your will (or to close relatives - not your partner - if there is no will).

(2) You can't make two wills. Only the last one will be valid. You need to decide whether to leave the property to your partner (who will then have to sell it within a year after your death), or to your sister.

(3) Technically, there's no need to register the will. A holographic will (i.e. written by hand) doesn't need to be registered or witnessed. However, in your situation, registering does sound like a good idea.

(4) A usufruct would be for the life of your partner - not you. There would be no need for another usufruct after your death - even though the property changes owner.

(5) I am not a legal expert, but I rather doubt that you can include stipulations in your will about what your sister should do in the event that your partner wants the house sold. After all, the house will belong to your sister, not to your partner, and I would think that only she could decide whether or not the house is sold, and when. Legally, she could sell it with your partner still living there. The usufruct would remain in place, so your partner could continue to live there, but there would be a new owner.

I hope this clarifies things a bit. However, you really do need to take professional legal advice - and I suggest you do this before talking to your bank about usufruct.

[chubcake]

Guys, thank for all advise.

Highly appreciated.

Cheers!

[LeCharivari]

I rather doubt that you can include stipulations in your will about what your sister should do in the event that your partner wants the house sold. After all, the house will belong to your sister, not to your partner, and I would think that only she could decide whether or not the house is sold, and when. Legally, she could sell it with your partner still living there. The usufruct would remain in place, so your partner could continue to live there, but there would be a new owner.

Correct again on all counts, AyG. You can't tell someone what to do with what you leave them, unless you do so as part of a Trust - not practical at all here.

Pointless leaving the house to your sister. If you want your partner to be able to sell the house, leave him the house. If you want your sister to help him, ask her. Keep it simple.

[chubcake]

Thank you for all advise.

I am now searching for a lawyer for this matter.

Thank to warm community here.

Cheers!

[LeCharivari]

Sometimes "warm", sometimes boiling over (!) but a few of us are in a very similar situation to the two of you.