Will or Power of Attorney?

[NancyL]

Jip99 -- I have to agree with a previous poster on the issue of whether a joint bank account will automatically go to the surviving owner. Rather than trying to come up with fancy, low-cost "work arounds", the safest thing is just to have a proper Final Will.

If someone reports a case where a Joint Bank Account went to the survivor without a Final Will, it probably was because there was no one who popped up to contest the awarding of the balance to the joint owner. Had there been, then the joint owner wouldn't have had any protection without a Final Will.

[beau thai]

Unless there is something odd in the terms and conditions, the funds in a joint account belong to both parties in their entirety. One dies. The funds belong to the other. Not even part of the estate of the deceased.

Notwithstanding I have never been a fan of joint accounts. Too confusing as to who spent what. Unless a couple run 2 joint accounts- a sort of implicit his and hers. Or to be PC, His n His or Hers n Hers.

[TallGuyJohninBKK]

I believe the Somsak lawyer post linked above raised a good point: In Thailand, there are different kinds of joint accounts depending on how things are handled at the set-up of the account. Some can allow either-or signature. Some can require both signatures.

So what would that mean if one or the other party were to die?

If it was an either-or account, presumably the surviving party would simply be able withdraw/move the funds to their own account immediately after the passing of the other party, since only one signature would be required to take actions re the account.

If it was a both parties sign joint account, that raises a good question. I'm not so sure the bank would simply let the other surviving party withdraw the funds post-death -- unless it was done via a will and probate.

That's what the Somsak lawyer post seems to be advising above. And that's my read of things as well.

But where things could get very interesting would be in the case of a both must sign account, how would that be treated in the deceased's probate process, assuming they had a will. Would the will's direction only apply to a half share of the account deemed related to the deceased, or would the deceased be able to will all of a joint account to some other party, which seems inherently inappropriate?

Edited August 20, 2015 by TallGuyJohninBKK

[chiang mai]

I am in pretty much the same situation as the OP. Generally a power of attorney is for living people and ceases on the passing of the person is my understanding.

I used an online service in Thailand which I was pretty happy with (thailawonline) at about 5000Baht . I also got it checked by a couple of Thai business people who spoke good English to confirm it said what it was supposed to, mostly that the different language versions matched. There is English and Thai in the will, but the Thai version will take precedence in Thailand for memory.

My research indicated that trying to move any money or funds across borders will make the lawyers wealthy, and in the case of anything leaving Thailand the Thai government is looking for a cut. If anything actually arrives in Australia that bunch of government thieves will take a cut. So two wills, one for each country and as my main bank is in Singapore one of my daughters has access to that after my demise. My suggestion is they have a holiday or two in Singapore and empty the account and not bring it into Australia to be taxed, but it will not be my problem whatever they do.

Cheers

The style of mixing the wording in Thai and English is interesting.

Personally, I prefer the Will to be drawn up in English (the native tongue) for clear understanding and then have a Thai translation undertaken.

There is nothing wrong with the OP using his Australian Will in Thailand - it sounds perfectly clear. Again a Thai translation will be required - and a certified copy of the original. . Caveat - I would still use a separate Will for Thai assets if there is anything slightly complex.

It is absolutely clear that if the Thai will of a native English speaking person is not written in English, it is invalid, how else could the deceased have known with absolute certainty what he/she was attesting to!

[elgordo38]

I am rather flabbergasted to read prices of 100,000 bahts for cremation. I can get it done in my home country for about half of that. Do ordinary Thai's pay this much to go up in smoke so to speak? I have heard prices of 25,000 bahts or less. I am going to inquire at the temple next time my g/f goes. I am seriously considering donating my body to Chiang Mai medical university as they cremate the remains when finished and return them to the immediate family. Anyone had any experience in this? Something simple no frills.

Thanks

Edited August 20, 2015 by elgordo38

[MaeJoMTB]

You do know, Thai law in no way requires that a will be drafted by a law firm. You can draft a will yourself, obtain a Thai translation of it, and file it at your Amphur Office, and it has the same legal effect as a will drafted by attorneys.

50bht at the amphur office.

[chiang mai]

Not correct. A joint Bank Account holder is not by law the beneficiary. If there is a Will, the stated beneficiary is entitled to the deceased monies. It is very important to have a Thai Will if you have Thai assets, properties and financials. There are many complications if a Will is written in another jurisdiction as it may not apply.

I agree, a separate will is needed for each jurisdiction, there is no question about this. The existence of an overseas will in the absence of a Thai will, does not imply that the overseas will takes precedence over Thai hereditary law where Thai beneficiaries are involved.

[elgordo38]

I am in pretty much the same situation as the OP. Generally a power of attorney is for living people and ceases on the passing of the person is my understanding.

I used an online service in Thailand which I was pretty happy with (thailawonline) at about 5000Baht . I also got it checked by a couple of Thai business people who spoke good English to confirm it said what it was supposed to, mostly that the different language versions matched. There is English and Thai in the will, but the Thai version will take precedence in Thailand for memory.

My research indicated that trying to move any money or funds across borders will make the lawyers wealthy, and in the case of anything leaving Thailand the Thai government is looking for a cut. If anything actually arrives in Australia that bunch of government thieves will take a cut. So two wills, one for each country and as my main bank is in Singapore one of my daughters has access to that after my demise. My suggestion is they have a holiday or two in Singapore and empty the account and not bring it into Australia to be taxed, but it will not be my problem whatever they do.

Cheers

The style of mixing the wording in Thai and English is interesting.

Personally, I prefer the Will to be drawn up in English (the native tongue) for clear understanding and then have a Thai translation undertaken.

There is nothing wrong with the OP using his Australian Will in Thailand - it sounds perfectly clear. Again a Thai translation will be required - and a certified copy of the original. . Caveat - I would still use a separate Will for Thai assets if there is anything slightly complex.

It is absolutely clear that if the Thai will of a native English speaking person is not written in English, it is invalid, how else could the deceased have known with absolute certainty what he/she was attesting to!

I have filled out two form wills downloaded here. One is in Thai and the other in English. Ask the Lawyer stated that these wills were perfectly legal here.

[MaeJoMTB]

It is absolutely clear that if the Thai will of a native English speaking person is not written in English, it is invalid, how else could the deceased have known with absolute certainty what he/she was attesting to!

Some native English speaking people can also speak, read and write Thai.

(and Spanish, and French and German)

Edited August 20, 2015 by MaeJoMTB

[chiang mai]

It is absolutely clear that if the Thai will of a native English speaking person is not written in English, it is invalid, how else could the deceased have known with absolute certainty what he/she was attesting to!

Some native English speaking people can also speak, read and write Thai.

I can speak some French, German and Mandarin, that does not mean in law that I can assign my rights in a document written in any of those languages.

[TallGuyJohninBKK]

It is absolutely clear that if the Thai will of a native English speaking person is not written in English, it is invalid, how else could the deceased have known with absolute certainty what he/she was attesting to!

Some native English speaking people can also speak, read and write Thai.

(and Spanish, and French and German)

AFAIK, for a Thai will ever to filed with a Thai court in the event of the person's passing, the version that the court is going to deal with is the Thai language version, however it ended up being prepared.

I'd imagine, a farang in Thailand could have a bilingual will, as someone mentioned above. There are versions out there where each pgh alternates between Thai and English for the same content. But I'd also imagine, a person could start with an English version, have it translated into Thai, and then sign the Thai language version.

One way or the other, it's the Thai language version of a farang's will in Thailand that any Thai court is going to consider as the controlling document, not the English language version.

[chiang mai]

Yes of course, the Thai courts will only deal with documents written in Thai.

The issue is: the validity of the will document signed by the non-native deceased can only be confirmed if it was written and signed whilst it was written in his/her native language, if it was not so, the will of the deceased can be easily challenged and defeated. The fact that such a document was translated after the fact is of course SOP here..

[TallGuyJohninBKK]

The issue is: the validity of the will document signed by the non-native deceased can only be confirmed if it was written and signed whilst it was written in his/her native language, if it was not so, the will of the deceased can be easily challenged and defeated.

As noted above, the argument you're making presumes that no farangs can read or write Thai, when obviously some/many can. So to argue that a farang's will "can only be confirmed" if it was written in his/her native language seems illogical.

But more broadly, I don't believe I've ever read anything to suggest that a person can't write an initial will in English, have it translated into Thai while they're alive, and then sign the Thai version as their official will. I don't believe that kind of a will process would automatically risk being challenged and defeated.

[chiang mai]

The issue is: the validity of the will document signed by the non-native deceased can only be confirmed if it was written and signed whilst it was written in his/her native language, if it was not so, the will of the deceased can be easily challenged and defeated.

As noted above, the argument you're making presumes that no farangs can read or write Thai, when obviously some/many can. So to argue that a farang's will "can only be confirmed" if it was written in his/her native language seems illogical.

But more broadly, I don't believe I've ever read anything to suggest that a person can't write an initial will in English, have it translated into Thai while they're alive, and then sign the Thai version as their official will. I don't believe that kind of a will process would automatically risk being challenged and defeated.

Yes they can execute the last para you wrote beginning with, "But more broadly..". What they cannot safely do however is to write a will at the Amphur or via a lawyer, based solely on verbal instruction in English that produces a written will in Thai. Simply, the perceived proficiency of a foreigner in another language is always believed to be subjective and has no basis in law, if you doubt or wish to debate this point, please check with kuhn Sumalee or a Thai lawyer of equal standing since your repeated challenges of me on this point are counterproductive!

[TallGuyJohninBKK]

What they cannot safely do however is to write a will at the Amphur or via a lawyer, based solely on verbal instruction in English that produces a written will in Thai.

Who was talking about "verbal instruction in English" leading to a written Thai will? I certainly wasn't.

I was talking about a farang who can write in Thai language being able to write a Thai language will.

Or, writing a will in English and then having it translated into Thai as the official will.

[NancyL]

I am rather flabbergasted to read prices of 100,000 bahts for cremation. I can get it done in my home country for about half of that. Do ordinary Thai's pay this much to go up in smoke so to speak? I have heard prices of 25,000 bahts or less. I am going to inquire at the temple next time my g/f goes. I am seriously considering donating my body to Chiang Mai medical university as they cremate the remains when finished and return them to the immediate family. Anyone had any experience in this? Something simple no frills.

Thanks

Cremation can be done at a temple for much, much less. It's all the "frills" that bring the price up to 100,000 baht -- days of chanting monks, special structures around the caskets, flowers, more days of chanting monks with gifts and food being given to them.

Yes, your body can be donated to CMU at Suan Dok hospital where it is usually used in anatomy classes, not for organ donation. So, whether or not it is accepted depends upon how you died. For example, they usually won't accept someone who died of a disease that ravaged their body or in an accident. Also, it depends upon their needs at the time. Usually they say they won't accept donor over age 80, but I've known them to do that if they are short of cadavers for the upcoming semester.

[chiang mai]

What they cannot safely do however is to write a will at the Amphur or via a lawyer, based solely on verbal instruction in English that produces a written will in Thai.

Who was talking about "verbal instruction in English" leading to a written Thai will? I certainly wasn't.

I was talking about a farang who can write in Thai language being able to write a Thai language will.

Or, writing a will in English and then having it translated into Thai as the official will.

John, please find somebody else to argue with, or not!

[bazza40]

I am rather flabbergasted to read prices of 100,000 bahts for cremation. I can get it done in my home country for about half of that. Do ordinary Thai's pay this much to go up in smoke so to speak? I have heard prices of 25,000 bahts or less. I am going to inquire at the temple next time my g/f goes. I am seriously considering donating my body to Chiang Mai medical university as they cremate the remains when finished and return them to the immediate family. Anyone had any experience in this? Something simple no frills.

Thanks

Cremation can be done at a temple for much, much less. It's all the "frills" that bring the price up to 100,000 baht -- days of chanting monks, special structures around the caskets, flowers, more days of chanting monks with gifts and food being given to them.

Yes, your body can be donated to CMU at Suan Dok hospital where it is usually used in anatomy classes, not for organ donation. So, whether or not it is accepted depends upon how you died. For example, they usually won't accept someone who died of a disease that ravaged their body or in an accident. Also, it depends upon their needs at the time. Usually they say they won't accept donor over age 80, but I've known them to do that if they are short of cadavers for the upcoming semester.

Personally, I don't give a rat's ass whether my body is cremated in Thailand or Australia - depends on where I am when I cark it. I do, however, derive some amusement from the concept of a Thai funeral, when my will states Bach's "Prelude - St. Anne" is to be played at the funeral service.

I expect some bafflement if it happens here.

[opalred]

i totaly agree with bazza these stupid wills all the do is give money to lawyers

if you want your life to mean something

give your money away as you get older and enjoy the happyness you can see and enjoy with them

or live last days with a smile on face or get a lawyer so he can spend your money on a new lambagina ?

[opalred]

i do have to add my sister is a top lawyer in hub of sydney for 49 trs

house worth 20mil plus where did she get here money

divoces and wills the more they fight the more she gets

she told me once if they keep fighting over the wills she gets most of it

[elgordo38]

Has anyone gone through the probate process? How long approximately did it take?

[Mapguy]

Yes of course, the Thai courts will only deal with documents written in Thai.

The issue is: the validity of the will document signed by the non-native deceased can only be confirmed if it was written and signed whilst it was written in his/her native language, if it was not so, the will of the deceased can be easily challenged and defeated. The fact that such a document was translated after the fact is of course SOP here..

I believe it can be stated in the will which language takes precedence; however, a translation has to be presented.

Have a question about that? I frankly don't recall where I got that. If you doubt it, get a competent lawyer to explain it.

Otherwise, someone around here has pointed out the obvious point that illterate people also sign wills!

Yes, to continue, there are a lot of lawyer jokes, but not all lawyers are devious or incompetent. That is totally silly to say. There's Opaired and his story about his rich lawyer sister. Yes, of course, if people want to hassle in court, they can, but that doesn't mean his sister is a crook or incompetent. I wouldn't care to make a living contending with divorce cases, and I know lawyers who feel the same way.

So, back to Thailand...

[Mapguy]

My Thai wife, a lawyer, died after 9 days of illness at the age of 57 without a will. There is a house in Bangkok, a house in Pattaya and a car in her name, plus 7 or 8 bank accounts. Her brother is the executor and I paid 21,000 baht for an attorney. The latest is that the case will be finalized by the end of August in accordance with my wishes,

A will would have resulted in everything being resolved months ago. Meanwhile I have in excess of 15 million in Thai bank accounts which i will leave to my Thai family as we had no children. I do not have a will and will not get the draft I have ready translated and recorded until my wife's assets have been settled. If I die without a will I do not see how the Thai family can collect any of the money as they are not "blood" relatives to me.. I have a son in the USA who would likely be the sole heir. I keep telling them that time is of the essence but I'm not sure it can speed up the "slowly grinding wheels".

I'm not an attorney, but I have read Thai family law.

And, if I understand it right, a surviving husband has significant rights of inheritance under Thai law for a deceased Thai spouse's marital property/assets (meaning assets acquired during the marriage, as opposed to pre-marriage assets), even in a case where the deceased had no will. Those rights are statutory under the law.

The way I read the statute, it's kind of similar to if the couple were to have gotten divorced. In the absence of a will, the surviving husband is entitled to his own 50% share of marital property, and then half of the deceased spouse's 50% share, which would seem to equal about 75% of marital property, with the remainder to be distributed to children or other relations under provisions of the law.

http://www.bia.co.th/032.html

PS2891.jpg

A careful will will point out that so-and-so is to get whatever is indicated in the will (or perhaps even be disinherited, particularly in the case of close relatives). If someone dies intestate, then the law is clear about the order of inheritance.

[elgordo38]

We seem to be in a suppositions battle here. Is there anyone who has used a certain process successfully and can give us blow by blow information as to what happened? lets have a healthy discussion. We have discussed the Amphur will, some touched on hand written ones(me) and others have mentioned how rich lawyers are getting in the process sooo lets look at the first two above first. Can anyone give us true testimonies on how they or someone they know went through the process of using the Amphur route or the hand written route. Surely some of you must know of someone that has passed and how their estate was handled, probate time involved, was the will challenged, which works best Thai or English versions. Are lawyer drafted wills more successful than other methods. If anyone knows of a real good reasonable lawyer PM me. My will is simple bank account and condo contents. Just looking for something that works and some peace of mind.

[chiang mai]

Yes of course, the Thai courts will only deal with documents written in Thai.

The issue is: the validity of the will document signed by the non-native deceased can only be confirmed if it was written and signed whilst it was written in his/her native language, if it was not so, the will of the deceased can be easily challenged and defeated. The fact that such a document was translated after the fact is of course SOP here..

I believe it can be stated in the will which language takes precedence; however, a translation has to be presented.

Have a question about that? I frankly don't recall where I got that. If you doubt it, get a competent lawyer to explain it.

Otherwise, someone around here has pointed out the obvious point that illterate people also sign wills!

Yes, to continue, there are a lot of lawyer jokes, but not all lawyers are devious or incompetent. That is totally silly to say. There's Opaired and his story about his rich lawyer sister. Yes, of course, if people want to hassle in court, they can, but that doesn't mean his sister is a crook or incompetent. I wouldn't care to make a living contending with divorce cases, and I know lawyers who feel the same way.

So, back to Thailand...

Of course the will has to be translated into Thai for probate purposes but that doesn't mean it should be written in Thai at the outset, on the contrary, any decent lawyer will advise that it should be written in your native language regardless of your familiarity with other languages. And yes, language precedence can be stated although this aspect only comes into play where an ambiguity arises that results from translation. In that event the language precedence clause might say something along the lines of, " in the event of ambiguity resulting from translation, the English language version takes precedence".

The language "challenge" in law results from the presumption that non-native speakers of a language cannot be proficient in it, even if in reality the opposite is true, it represents a real risk and an opportunity for disgruntled ex-spouses, offspring and partners to create mischief and seek financial reward.

[TallGuyJohninBKK]

We seem to be in a suppositions battle here. Is there anyone who has used a certain process successfully and can give us blow by blow information as to what happened? lets have a healthy discussion. We have discussed the Amphur will, some touched on hand written ones(me) and others have mentioned how rich lawyers are getting in the process sooo lets look at the first two above first. Can anyone give us true testimonies on how they or someone they know went through the process of using the Amphur route or the hand written route. Surely some of you must know of someone that has passed and how their estate was handled, probate time involved, was the will challenged, which works best Thai or English versions. Are lawyer drafted wills more successful than other methods. If anyone knows of a real good reasonable lawyer PM me. My will is simple bank account and condo contents. Just looking for something that works and some peace of mind.

The problem is the old adage, dead men tell no tales.

If you go thru the various prior main threads on Thai wills, there are posts by various members recounting how they were successfully able to file amphur wills. There also were a few, if I recall, where the amphur this or that member went to claimed they couldn't accept an amphur will from a farang, which simply is not legally correct.

But at least from my memory, their are precious few reliable, detailed accounts here on TV of what has actually transpired with amphur wills or hand written wills in the wake of someone passing, or any Thai will for that matter. It always seems to be those of us looking ahead and trying to plan for the future who are discussing the topic vs. those posting on how things actually turned out after the fact.

[facthailand]

Uniform world convention is that one's will must be made in each venue where one's assets are held.

I am fully in support of 'creative' wills, written by oneself and even parsed into Thai by (terrible) Google Translate, not required a lawyer.

These will still show one's intentions clearly. If one has assets abroad, a will should also be filed there to the relevant govt body.

[millwall_fan]

After being directed here from another thread by TGJIB, it seems that what I need is what you guys describe as an 'Ampur Will' My wife has been doing as bit of research and we can add a couple of pointers that may help others contemplating one of these wills. Firstly we live in Bangkok where there are of course, no Ampurs. The equivalent competent authority here is the 'Kairt' (I've no idea how to correctly render this into Roman script). And one document that is required and I don't think has been mentioned above is a doctors certificate testifying that the person drawing up the will is of sound mind (oh well, I guess I'll have to slip the quack a few Baht!!). And our Kairt (Phaya Thai) will provide 2 witnesses for 50 Baht each.

Looks like all systems go, thanks, once again to Thai Visa!!!

[Jip99]

Yes of course, the Thai courts will only deal with documents written in Thai.

The issue is: the validity of the will document signed by the non-native deceased can only be confirmed if it was written and signed whilst it was written in his/her native language, if it was not so, the will of the deceased can be easily challenged and defeated. The fact that such a document was translated after the fact is of course SOP here..

I believe it can be stated in the will which language takes precedence; however, a translation has to be presented.

Have a question about that? I frankly don't recall where I got that. If you doubt it, get a competent lawyer to explain it.

Otherwise, someone around here has pointed out the obvious point that illterate people also sign wills!

Yes, to continue, there are a lot of lawyer jokes, but not all lawyers are devious or incompetent. That is totally silly to say. There's Opaired and his story about his rich lawyer sister. Yes, of course, if people want to hassle in court, they can, but that doesn't mean his sister is a crook or incompetent. I wouldn't care to make a living contending with divorce cases, and I know lawyers who feel the same way.

So, back to Thailand...

Of course the will has to be translated into Thai for probate purposes but that doesn't mean it should be written in Thai at the outset, on the contrary, any decent lawyer will advise that it should be written in your native language regardless of your familiarity with other languages. And yes, language precedence can be stated although this aspect only comes into play where an ambiguity arises that results from translation. In that event the language precedence clause might say something along the lines of, " in the event of ambiguity resulting from translation, the English language version takes precedence".

The language "challenge" in law results from the presumption that non-native speakers of a language cannot be proficient in it, even if in reality the opposite is true, it represents a real risk and an opportunity for disgruntled ex-spouses, offspring and partners to create mischief and seek financial reward.

Agree 100%.

I suggest that, in practice, any language ambiguity will lean towards Thai. One hopes that (if it really matters) the Thai translation was accurate. This, of course, is an issue with the amphur Wills - they are written in Thai and unless you are fluent you may not know what was actually written.

I have yet to see any advantage in amphur Wills. Probate will still be required if the sums involved warrant it.

[chiang mai]

Of course the will has to be translated into Thai for probate purposes but that doesn't mean it should be written in Thai at the outset, on the contrary, any decent lawyer will advise that it should be written in your native language regardless of your familiarity with other languages. And yes, language precedence can be stated although this aspect only comes into play where an ambiguity arises that results from translation. In that event the language precedence clause might say something along the lines of, " in the event of ambiguity resulting from translation, the English language version takes precedence".

The language "challenge" in law results from the presumption that non-native speakers of a language cannot be proficient in it, even if in reality the opposite is true, it represents a real risk and an opportunity for disgruntled ex-spouses, offspring and partners to create mischief and seek financial reward.

Agree 100%.

I suggest that, in practice, any language ambiguity will lean towards Thai. One hopes that (if it really matters) the Thai translation was accurate. This, of course, is an issue with the amphur Wills - they are written in Thai and unless you are fluent you may not know what was actually written.

I have yet to see any advantage in amphur Wills. Probate will still be required if the sums involved warrant it.

"This, of course, is an issue with the amphur Wills - they are written in Thai and unless you are fluent you may not know what was actually written".

That in itself should make the will unenforceable.