The Importance Of Preparing A Will In Thailand

[george]

The importance of preparing a will in Thailand

For many people, estate planning and the preparation of a last will and testament is a dreaded thought and something that is rather avoided. However, it is certainly advisable to settle such affairs and this holds true in particular if you have property in Thailand.

If you do not prepare a will, the law decides how the estate is distributed. Succession in Thailand is governed by Sections 1599 ff. of the Thai Civil and Commercial Code (“CCC”). Rules related to international issues are governed by Sections 37 ff. of the Thai Act on Conflict of Laws.

Statutory heirs are entitled to inherit according to the following order (Section 1629 CCC):

• Descendants
• Parents
• Brothers and sisters of full blood
• Brothers and sisters of half blood
• Grandfathers and grandmothers
• Uncles and aunts

The surviving spouse is also a statutory heir. His/her share of the inheritance depends on how many and which type of statutory heirs there are altogether.

Thai inheritance law does not recognise the idea of a statutory share. Any heir can be fully disinherited.

If there are no living relatives and no will, the estate devolves to the state.

Why a will is recommended

It is highly recommended to have a last will and testament naming all your assets, such as property, bank accounts, vehicle, and personal items as well as naming your heirs.

If there is no will, the statutory heirs have the burden of proof that they are next of kin.

They will in practice have to hire a Thai lawyer to represent them during the court probate proceedings in Thailand and perhaps even have to travel to Thailand. This is avoidable by preparing a will.

In a will, an administrator of the estate may also be appointed, such as a lawyer in Thailand.

Thailand now has enacted laws that govern issues related to the so-called “living will”, which means your instructions as to what to do if you are seriously injured and left in a vegetative state.

Such instructions may be included in your last will and testament.

Also, funeral arrangements may be set forth in your will.

If the deceased had a Thai spouse or partner who owns common assets in his/her own name, in particular if they have been paid for by the deceased, the spouse or partner also should have a will.

Formalities of a Thai will

In Thailand, the most common type of will is required to be in writing, dated at the time of making the will, and signed by the testator before at least two witnesses of the testator’s signature (Sections 1656 CCC). It does not have to be drafted in Thai language.

The body text of the will may be printed or handwritten. In addition to this common type of will, there are certain other types with different formalities, such as a public will, which are less relevant in practice.

We strongly recommend preparing a separate Thai will for assets in Thailand in addition to the will in your home country.

This is necessary because different jurisdictions usually require different formalities for wills.

Furthermore, having a will drafted in the home country to cover assets in Thailand may be problematic and burdensome to the family as documentation may need to be translated, notarised and approved by a government body.

Conflict of law

If assets include a house and/or a leasehold right in Thailand, Thai courts will be competent for the probate and Thai law will always govern the succession.

If assets include movable property in Thailand, including shares in a Thai company, Thai courts will be competent as well, however according to Thai conflict law the law of the domicile of the deceased at the time of his death will be applied.

A Thai will should be prepared and signed on Thai territory, as in this case it is ensured that the aforementioned Thai rules regarding the form of the will apply.

Probate in Thailand

In order to obtain a probate in Thailand, probate proceedings at the Thai courts will need to be initiated by the heirs. A probate will in most cases be required to administer the estate orderly, even if the deceased has provided for a last will.

If the deceased himself named an administrator in his will, the probate court will appoint this person.

One of the heirs, but also a third party, such as a lawyer, may act as administrator. Otherwise the court will seek to appoint one of the heirs as administrator of the estate.

The administrator will be appointed by the court if none of the heirs object.

The administrator is obligated to appear personally at the court hearing in Thailand.

If heirs consent to the appointment of the administrator in writing, they will usually not be required to appear during the hearing of the probate court in Thailand.

This means that in a normal probate procedure without complications, the heirs can avoid traveling to Thailand by using a professional administrator such as a lawyer.

Inheritance of Thai property

Please note that a leasehold right regarding property in principle ends upon the demise of the lessee.

However, standard land lease agreements usually state that the leasehold right should be passed on to the heirs by way of inheritance.

This issue needs to be dealt with at the time of preparing and entering into the land lease agreement, and it is advisable to have your legal adviser check any such agreements again as part of the inheritance arrangements.

A building owned by a foreigner may be passed on to the heirs according to general rules.

If shares in a Thai company are passed on by way of inheritance, e.g. in the case of shareholding in a Thai company that holds land, it should be noted that rather complicated legal issues with regards to corporate law may arise.

A will provides for clarity here and avoids legal disputes between heirs and/or shareholders.

Inheritance Tax

It might be interesting to note that inheritance tax is not levied in Thailand.

-- Fabian Doppler 2013-02-13

Fabian Doppler is a Senior Legal Advisor based in the Phuket Office of DFDL Legal & Tax Advisers. This article is intended for general guidance only. It should not be relied upon as legal advice. http://www.dfdl.com

[Mousehound]

Very interesting - thanks for this.

[Delight]

It does not have to be drafted in Thai language.

True –but better that it is written in Thai with English Language translation-or some other language as is convenient.

The court can only accept documents in Thai language and only recognizes certain official and expensive companies as official translators.

So Wills in non Thai will had cost and delay to the process

[belg]

i just wonder, as a farang, and i die, all my money is in thailand , does my wife have to pay taxes in my home country to get access to my accounts ? she is thai but also got my nationality (yes, in my home country you get it after just a few years, no need to speak/work/whatever... compare that to thailand where it is impossible to get citizenship at all)

[Postmaster]

Very Useful. Does a Will and Testament have to be 'Registered' with anyone ?

[Robbie Dye]

Nice one George, is there s standard form to use ? How does one link to an existing UK Will which covers UK assets?

[simple1]

Very Useful. Does a Will and Testament have to be 'Registered' with anyone ?

Yes, with your local Amphur. The Amphur retains the original & provide an official receipt, at least that was my experience with the Banglamung Amphur in Chon Buri

Edited February 14, 2013 by simple1

[ilyushin]

Any standard templates in Thai and English?

[hgma]

Good technical overview, george.

for the record...

My will is made up by myself translated..and signed at the Dutch embassy for certification whereafter legalized by MFA Thailand.

any professional judgement available on legality of this document as it concers heirs of wife (Lao) and kids (Dutch)???

Much appriciated upfront

again good subject!

HGMA

[camerata]

Nice one George, is there s standard form to use ? How does one link to an existing UK Will which covers UK assets?

I found the best way to do it was to have two wills, the foreign one covering all assets except those in Thailand, and the Thai will covering only Thailand. Just make sure you don't "revoke all previous wills," which is a standard phrase in wills everywhere.

Some people just register their will with the amphur, but I imagine that would have to be in Thai. On advice from my lawyer, I had mine written in English with a Thai translation. You tell the lawyer what you want, and he - or his staff - put it into the required legalese. The signing of the will has to be witnessed by two people (I've read they must be people like lawyers, teachers, accountants, civil servants, etc) and a copy of their passport detail page or ID card must be included with the will. You need to specify an executor in the will. The lawyer then keeps one signed copy of the will and you keep another.

[HUAHIN62]

I have gone through this recently. The best I could come up with is to have two wills. The Thailand will was handled by a local lawyer but excludes any assets in my country of birth. The second will in my country of birth excludes Thai assets. Each will have its own administrators. Due to Thailand not levying estate tax there are a benefit to exclude Thai assets from your home countries will. You can also look at having a combined will with your Thai wife incase of both passing away at the same time. Due to my distrust of lawyers I have included my son and brother as administrators.

[johnlandy]

In the majority of 'developed countries' (first world countries) all wills regardless of where they are made are recognized the world over but not so in Thailand.

"Of course the realm is neither developed nor first world"

Consistent with everything else here international norms (and laws) are at the discretion of a manipulative, and archaic system.

So what is new it's 'TiT' and will remain so for the next millenia

[super22k]

I was told by my Thai lawyer that they are only qualified to operate with Thai laws. Every country has its own laws.

I made out my will with a Thai lawyer which was witnessed in her office. I paid the fee and everything was above board. Next day she phoned me to inform me she had changed the name of her company,and changed her own personal name. I protested that the will will now be invalid. To which she replied,"what difference does it make"

Now I do not know if the will is valid or not. On checking,she has now moved her office. Beware.

[sometimewoodworker]

I was told by my Thai lawyer that they are only qualified to operate with Thai laws. Every country has its own laws.

I made out my will with a Thai lawyer which was witnessed in her office. I paid the fee and everything was above board. Next day she phoned me to inform me she had changed the name of her company,and changed her own personal name. I protested that the will will now be invalid. To which she replied,"what difference does it make"

Now I do not know if the will is valid or not. On checking,she has now moved her office. Beware.

She is correct. If your will was valid when drawn up and correctly witnessed then it doesn't matter what anyone does after. It's still valid. Only you can make it invalid and usually only by making a different and subsequent will.

[JeezeLooeze]

I have prepared two Wills, one for my assets in Thailand and one the assets in my country of birth. If you have fixed assets like I do in both countries (i.e land, house, condo etc) then two Wills for each country is required to have any jurisidiction over the fixed property located there. It also makes things easier for non-fixed assets too.

The solicitor in my home country charged me $60 for a simple Will. One farang solicitor here in Thailand was gonna charge 15,000 baht for a simple Thai Will in Thai language. In the end I downloaded a Thai language Will template (พินัยกรรม) from the internet for free, filled in the details and had two witnesses sign it. Done.

Edited February 14, 2013 by JeezeLooeze

[thaibeachlovers]

i just wonder, as a farang, and i die, all my money is in thailand , does my wife have to pay taxes in my home country to get access to my accounts ? she is thai but also got my nationality (yes, in my home country you get it after just a few years, no need to speak/work/whatever... compare that to thailand where it is impossible to get citizenship at all)

How would they know, unless you told them? IMO, what is in Thailand stays in Thailand.

BTW, apologies if someone else wrote it already, but no need to pay a lawyer in Thailand- all covered in a thread I started a couple years ago.

It is also a very good idea to appoint someone to have legal rights over you in the event that you become incapable of managing your affairs- this would be done in your home country if you have relatives or assets there.

My father became mentally unwell in Cyprus where he resided, but my sister had to try and sort his affairs from Ireland, including flying to Cyprus to get court orders there. All in all a very expensive and unneccessary situation. Had he appointed my sister legal "guardian" while still competent, there would have been very few problems. Costs a bit, and requires a lawyer, but worth it.

[jcnbkk]

I have prepared two Wills, one for my assets in Thailand and one the assets in my country of birth. If you have fixed assets like I do in both countries (i.e land, house, condo etc) then two Wills for each country is required to have any jurisidiction over the fixed property located there. It also makes things easier for non-fixed assets too.

The solicitor in my home country charged me $60 for a simple Will. One farang solicitor here in Thailand was gonna charge 15,000 baht for a simple Thai Will in Thai language. In the end I downloaded a Thai language Will template (พินัยกรรม) from the internet for free, filled in the details and had two witnesses sign it. Done.

JL, do you have a ling to the site you used. Thanks

[super22k]

I paid 15,000 bht to a Chiang Mai lawyer for my will. Is this normal or was I "fleeced"? It was a simple will. I do not own any property but I have money in bank accounts,building societies and financial schemes. When I told a friend about the 15,000 bht fee he replied,"I paid more than that" . Are there no official rules regarding these fees or can the lawyer just charge what they like?

[thaibeachlovers]

I paid 15,000 bht to a Chiang Mai lawyer for my will. Is this normal or was I "fleeced"? It was a simple will. I do not own any property but I have money in bank accounts,building societies and financial schemes. When I told a friend about the 15,000 bht fee he replied,"I paid more than that" . Are there no official rules regarding these fees or can the lawyer just charge what they like?

WOW. I paid 5,000 and thought that was excessive. That was in Pattaya. I paid less for other legal papers in Lamphun ( think it was 3,000 ).

All my will does is give my wife the money in my bank account, so property might cost more to cover.

[super22k]

From my experience in Thailand,it is safer to use a lawyer who is employed by a a long established company who employ many staff.It is best to avoid one man or one women firms who rent a little room for their business. If something goes wrong the big company is always around.The small company can dissappear and then what?

I was told there is some kind of organisation where you can complain if a lawyer gives you bad service. They, can even be suspended and struck off the register. Try Google search.

[Naroge]

I was told by my Thai lawyer that they are only qualified to operate with Thai laws. Every country has its own laws.

I made out my will with a Thai lawyer which was witnessed in her office. I paid the fee and everything was above board. Next day she phoned me to inform me she had changed the name of her company,and changed her own personal name. I protested that the will will now be invalid. To which she replied,"what difference does it make"

Now I do not know if the will is valid or not. On checking,she has now moved her office. Beware.

Of course the will is valid even if the witnesses change their names (person or company). For practical reasons though it could be good to keep track of such changes.

I believe that the only time a witness' signature my be checked is if anyone of the heirs question the legality of the will.

[Naroge]

From my experience in Thailand,it is safer to use a lawyer who is employed by a a long established company who employ many staff.It is best to avoid one man or one women firms who rent a little room for their business. If something goes wrong the big company is always around.The small company can dissappear and then what?

I was told there is some kind of organisation where you can complain if a lawyer gives you bad service. They, can even be suspended and struck off the register. Try Google search.

Good point indeed. When you engage a lawyer it is normally for something very important. It is therefore important that they are "around" if you need some follow up later. And the old saying "You get what you pay for" is certainly valid here as well. If you pay peanuts you get ..............

[Pormax]

Good advice given by the op.

I just hope that this will ring a few warning bells to a lot of expats here who do not yet have 'wills' done.

No matter how old you are now it is essential to make a will, not only to ensure whatever you leave goes to those you want, but to save a lot of trouble, cost and anguish to those you leave behind.

Not done it yet, then now is the time to do it.

[tomallison]

Very Useful. Does a Will and Testament have to be 'Registered' with anyone ?

Yes, with your local Amphur. The Amphur retains the original & provide an official receipt, at least that was my experience with the Banglamung Amphur in Chon Buri

I covered this 'local Amphur' subject, in some detail, in a previous Will topic. In short, my local Amphur were not interested in registering my Will, and I was thus unable to do so with them.

[Delight]

anyone care to upload a thai will template along with the english translation?

The attached 2 templates should be ok

[Jaochoo]

If I make out a Will in Thailand to cover all my Thai assets and I make out a separate Will in the U.K. to cover all remaining assets (all my worldly goods excluding Thailand), does anyone know the correct legal wording that needs to be included in each Will to ensure that they both remain valid (they won’t cancel each other out) and will be processed in their respective countries completely independently to each other.

Perhaps someone who has done something similar would be kind enough to clarify and confirm the correct wording.

Many thanks

[Delight]

If I make out a Will in Thailand to cover all my Thai assets and I make out a separate Will in the U.K. to cover all remaining assets (all my worldly goods excluding Thailand), does anyone know the correct legal wording that needs to be included in each Will to ensure that they both remain valid (they won’t cancel each other out) and will be processed in their respective countries completely independently to each other.

Perhaps someone who has done something similar would be kind enough to clarify and confirm the correct wording.

Many thanks

Do not use the phrase 'All my worldly goods'

Respectively state 'All my Thai assets' and ' All my U.K. assets'

If they are not combined they cannot be confused

[Ponbkk]

If I make out a Will in Thailand to cover all my Thai assets and I make out a separate Will in the U.K. to cover all remaining assets ...

You've done your job. make sure both legal reps and your respective heirs know of the existence of the respective wills. They'll be settled separately.Trying to add language like that to either might only complicate things.

Are assets outside both UK and Thailand? Your UK will might not cover those!

Unless, for example, I know that some Canadian provinces will honor American wills for the disposition of Canadian vacation property. I doubt that anything like that exists between Thailand and other countries.

Thank you for the very informative lead post to this thread!

Edited February 14, 2013 by Ponbkk

[Bpuumike]

Very Useful. Does a Will and Testament have to be 'Registered' with anyone ?

Yes, with your local Amphur. The Amphur retains the original & provide an official receipt, at least that was my experience with the Banglamung Amphur in Chon Buri

I covered this 'local Amphur' subject, in some detail, in a previous Will topic. In short, my local Amphur were not interested in registering my Will, and I was thus unable to do so with them.

My experience too.

Having Wills in 3 different jurisdictions (UK, Spain & Thailand) am wondering if it is advisable (or possible) to have original copies lodged at my Embassy (British) in BKK?

[Delight]

My view of the entire Will procedure is as follows:

1. Find a lawyer that you can trust.
   
2. Make 2 originals of the Will. (This is protection against the possibility of the loss of the only original)
   

The lawyer keeps one of the originals. Give the other to the principal benefactor.

3 Generate a list of important data.

a List of people to contact with the news.

b Codes PIN ‘s and passwords (if appropriate) to give access to some cash.

This data to be stored at the lawyers office with the Will

Give the principal benefactor the business card of the Lawyer