Home ownership on death of wife

[Tofer]

4 hours ago, Dogmatix said:

 

Although the post is rather unclear it does raise some interesting points.  The first one is what appears to be a reference to Section 93 of the still current 1954 Land Code. 

 

"Section 93 The Minister shall permit the inheritance of land by an alien who is the lawful heir, but such acquisition when added to that which s already held may not exceed the amount which may be held under Section 87."

 

At a superficial glance this might seem the perfect solution.  However, if you look at Section 87 which is referenced in the clause and sets out the maximum amount of land that foreigners may hold for various purposes, you will see that this is all contingent on international treaties.  Unfortunately the last of these treaties expired in the early 1970s. Therefore, there is no longer any way that a foreigner can inherit land and there would be no point in wasting time and money applying to the minister for permission for something he is not empowered to grant.

 

What you can and should do and it is also alluded to here, is to have the Thai spouse draw up a will that that clearly leaves the property, or rather the proceeds form selling it, to you to the exclusion of her statutory heirs.  In this case, title in the property does not  pass to the foreign heir and it does not matter if it is more than 1 rai, since the treaties that specified that limit are now defunct.  What happens, if you do this right, is that the title in the property passes to the estate of the deceased and the estate of a deceased Thai person is a Thai legal entity, so no problem with land ownership, regardless of the nationality of the heirs.   In the case of a foreign heir or heirs, the estate has, as you say, 12 months to dispose of the property to a Thai person or entity. 

     

It might be worth establishing a usufruct, if your land office will do it.  If you can plan ahead it is better to do a usufruct before marriage because any contract between man and wife can rendered null and void later, according the Civil & Commercial Code.  The value of a usufruct agreement might be that it could help dissuade statutory heirs from attempting to take possession of the property.  It is unlikely that the Land Dept would agree to a transfer, if there is an outstanding usufruct agreement without the permission of the usufructee to dissolve the agreement.  In my experience of trying to transfer land with a usufruct agreeement intact, the land office refused to do it and insisted on its cancellation first, even though there is nothing in the Land Code that prevents this.

If you want to remain living in the property, you will have to find a Thai nominee to transfer it to.  Since you will probably have had to dissolve your usufruct, if you had one, before the transfer, you can then attempt to set up a new one with the new owner.   

Can you please clarify one point from your statement / advice.  

 

If a will is written to pass the proceeds of the sale of the property to a foreign husband, will that still apply / be enforceable if the property does not sell within the required 12 month time limit allowed for the sale before transfer of title to a Thai is necessary.

 

In other words, can the Thai who is nominated for transfer of ownership be forced to sell the property and hand over the proceeds to the original foreign beneficiary of the will?

 

Thanks.

[Arkady]

4 hours ago, Tofer said:

Can you please clarify one point from your statement / advice.  

 

If a will is written to pass the proceeds of the sale of the property to a foreign husband, will that still apply / be enforceable if the property does not sell within the required 12 month time limit allowed for the sale before transfer of title to a Thai is necessary.

 

In other words, can the Thai who is nominated for transfer of ownership be forced to sell the property and hand over the proceeds to the original foreign beneficiary of the will?

 

Thanks.

 

I don't have any personal experience of this but my understanding is that the only sanction available to the Land Dept under the Land Code is to hand the land over to the Legal Execution Dept to sell at public auction.  That is the same process for land that a foreigner is found to have acquired land through a Thai nominee.  This sanction is rarely applied, even in the case of foreigners who willfully violate the Land Code, so I doubt it would be applied with excessive harshness in the case a reasonable delay in selling a deceased spouse's property.  Thus I doubt that anything would happen, if the property were sold a few months after the 12 months deadline, particularly, if I am right in thinking that the only sanction available to the Land Dept would be to sell the property anyway.  I also imagine that the legal procedure for handing over property to the Legal Execution Dept takes a very long time.   The intent seems to be prevent the foreign spouse of a deceased Thai property owner from leaving the property in the estate indefinitely, so that he or she can effectively own the property as executor of the estate.   If you should find yourself in this unfortunate situation, I would advise talking to a decent lawyer and/or to the Land Dept directly to find out if there is any flexibility and whether it would be necessary to apply for an extension in advance.      

[BEVUP]

12 hours ago, Tofer said:

Can you please clarify one point from your statement / advice.  

 

If a will is written to pass the proceeds of the sale of the property to a foreign husband, will that still apply / be enforceable if the property does not sell within the required 12 month time limit allowed for the sale before transfer of title to a Thai is necessary.

 

In other words, can the Thai who is nominated for transfer of ownership be forced to sell the property and hand over the proceeds to the original foreign beneficiary of the will?

 

Thanks.

Due to the list of inheritance It is straight forward

House in Wife & sons name * If anything happens to me = no worries

                                                  *                                        Wife = That the land shall be passed (transferred ) straight to my                                                                                                         son

Will get a Falang lawyer to sought all out & stave of any no gooders 

* Well believe you me the land dept has no problem in transferring land with a Usufrut on it as we know their is no law preventing this & doesn't need the the approval of the Usufrutee

You would only need to drop a Usufrut if you are only after the cash of said property if you end up inheriting it

 

                                                              FROM EXPERIENCE

[Tofer]

12 hours ago, Arkady said:

 

I don't have any personal experience of this but my understanding is that the only sanction available to the Land Dept under the Land Code is to hand the land over to the Legal Execution Dept to sell at public auction.  That is the same process for land that a foreigner is found to have acquired land through a Thai nominee.  This sanction is rarely applied, even in the case of foreigners who willfully violate the Land Code, so I doubt it would be applied with excessive harshness in the case a reasonable delay in selling a deceased spouse's property.  Thus I doubt that anything would happen, if the property were sold a few months after the 12 months deadline, particularly, if I am right in thinking that the only sanction available to the Land Dept would be to sell the property anyway.  I also imagine that the legal procedure for handing over property to the Legal Execution Dept takes a very long time.   The intent seems to be prevent the foreign spouse of a deceased Thai property owner from leaving the property in the estate indefinitely, so that he or she can effectively own the property as executor of the estate.   If you should find yourself in this unfortunate situation, I would advise talking to a decent lawyer and/or to the Land Dept directly to find out if there is any flexibility and whether it would be necessary to apply for an extension in advance.      

Thanks, that's very reassuring. I would however have no qualms about transferring the title into my wife's (our) adopted Son's name to be able to continue living there with a usufruct till my days end. It would just be nice to think our other 3 British nephews could share in the legacy as we have split our assets 4 ways in the UK will plus a few considerations around the rest of the family members.

 

I hope to never be in that position, being blessed with a near perfect wife. I would truly hate to be single again at my age (61).

[Tofer]

5 hours ago, BEVUP said:

Due to the list of inheritance It is straight forward

House in Wife & sons name * If anything happens to me = no worries

                                                  *                                        Wife = That the land shall be passed (transferred ) straight to my                                                                                                         son

Will get a Falang lawyer to sought all out & stave of any no gooders 

* Well believe you me the land dept has no problem in transferring land with a Usufrut on it as we know their is no law preventing this & doesn't need the the approval of the Usufrutee

You would only need to drop a Usufrut if you are only after the cash of said property if you end up inheriting it

 

                                                              FROM EXPERIENCE

Thanks for the benefit of your experience, hopefully not personally.

 

I agree a usufruct is definitely the way to go to protect your residency.

 

I just wonder what would happen when I and my wife die and my wife's adopted Son (Nephew) takes the title and our will stipulates a quarter share between him and 3 British nephews. 

[Arkady]

5 hours ago, BEVUP said:

Due to the list of inheritance It is straight forward

House in Wife & sons name * If anything happens to me = no worries

                                                  *                                        Wife = That the land shall be passed (transferred ) straight to my                                                                                                         son

Will get a Falang lawyer to sought all out & stave of any no gooders 

* Well believe you me the land dept has no problem in transferring land with a Usufrut on it as we know their is no law preventing this & doesn't need the the approval of the Usufrutee

You would only need to drop a Usufrut if you are only after the cash of said property if you end up inheriting it

 

                                                              FROM EXPERIENCE

 

The way things work in Thai bureaucracy individual land offices, like district offices, seem to have or take for themselves a look of discretion in how to interpret regulations and appealing against their decisions is not easy.  Some of them even refuse to do usufructs for foreigners and there is little you can about that.  I had a usufruct on my land and house that was in my wife's name and I wanted to add my name as a joint owner after I got my ID card.  Since I had paid the lawyer good money to get the usufruct and was only going to become a joint owner, following negotiations with Mrs Arkady, I asked to leave the usufruct in place and Mrs Arkady had no objection to that.  The land officer refused on the grounds that they would not transfer land with an outstanding usufruct on it.  I took it up to the next level of supervision and got the same answer.  No one suggested the problem was that I would be joint owner and usufructee, although I could see they might think that irregular.  The objection seemed  to be simply that they didn't want to transfer land with an outstanding usufruct, even though, as you point out, there is no law or regulation preventing that and a number of precedents where it has been done.  Perhaps they believe and/or have had experience that transferring land were incumbent usufructs can lead to problems.  It is not hard to see this happening, as why would a new owner in normal circumstances not want to try to cause problems for the usufructee to try to force him or her to leave and give up their rights, specially if the usufructee is a farang?  Thus they might simply be trying to protect the rights of usufructees.  Anyway I didn't push this any further than the supervisor level, since I got to be joint owner which is a higher claim than usufructee.  Going any further or demanding full ownership would have created bad will with Mrs Arkady and in the case of full ownership would have doubled my tax bill. 

 

That was my experience.  Your mileage with Thai bureaucrats may differ.  If you want to know the current practice in your land office, you can always go and ask them or send a lawyer or other representative to do that.  They are surprisingly open to such enquiries.  That wouldn't prevent policy from changing with a new chief but no one can look into the future. 

 

As an aside, transfers from spouse to spouse theoretically incur only a nominal tax charge and I had prepared this nominal amount when we went to the land office.  To my disgust the officials said they could not extend the concessionary rate to me because I was not a Thai citizen at the time of the purchase.  I had to return the next day with a larger wad of cash.  I thought this was very strange but later we did a similar transaction in another land office with a piece of raw land I had invested in and wanted to become a joint owner of and got exactly the same response. 

[Tofer]

6 minutes ago, Arkady said:

 

The way things work in Thai bureaucracy individual land offices, like district offices, seem to have or take for themselves a look of discretion in how to interpret regulations and appealing against their decisions is not easy.  Some of them even refuse to do usufructs for foreigners and there is little you can about that.  I had a usufruct on my land and house that was in my wife's name and I wanted to add my name as a joint owner after I got my ID card.  Since I had paid the lawyer good money to get the usufruct and was only going to become a joint owner, following negotiations with Mrs Arkady, I asked to leave the usufruct in place and Mrs Arkady had no objection to that.  The land officer refused on the grounds that they would not transfer land with an outstanding usufruct on it.  I took it up to the next level of supervision and got the same answer.  No one suggested the problem was that I would be joint owner and usufructee, although I could see they might think that irregular.  The objection seemed  to be simply that they didn't want to transfer land with an outstanding usufruct, even though, as you point out, there is no law or regulation preventing that and a number of precedents where it has been done.  Perhaps they believe and/or have had experience that transferring land were incumbent usufructs can lead to problems.  It is not hard to see this happening, as why would a new owner in normal circumstances not want to try to cause problems for the usufructee to try to force him or her to leave and give up their rights, specially if the usufructee is a farang?  Thus they might simply be trying to protect the rights of usufructees.  Anyway I didn't push this any further than the supervisor level, since I got to be joint owner which is a higher claim than usufructee.  Going any further or demanding full ownership would have created bad will with Mrs Arkady and in the case of full ownership would have doubled my tax bill.  That was my experience.  Your mileage with Thai bureaucrats may differ.

 

Transfers from spouse to spouse theoretically incur only a nominal tax charge and I had prepared this nominal amount when we went to the land office.  To my disgust the officials said they could not extend the concessionary rate to me because I was not a Thai citizen at the time of the purchase.  I had to return the next day with a larger wad of cash.  I thought this was very strange but later we did a similar transaction in another land office with a piece of raw land I had invested in and wanted to become a joint owner of and got exactly the same response. 

Now you've got me really confused - not difficult some may say!

 

How can a foreigner become a joint owner of land if they are not allowed to own land?

 

Did you do that on the strength of a simple pink ID?, or have you obtained full residency status?

[Arkady]

1 hour ago, Tofer said:

Thanks, that's very reassuring. I would however have no qualms about transferring the title into my wife's (our) adopted Son's name to be able to continue living there with a usufruct till my days end. It would just be nice to think our other 3 British nephews could share in the legacy as we have split our assets 4 ways in the UK will plus a few considerations around the rest of the family members.

 

I hope to never be in that position, being blessed with a near perfect wife. I would truly hate to be single again at my age (61).

 

You can mandate in your wills that the property is to be sold and the proceeds to be shared between the four designated heirs.  However, you will need to appoint an executor you can have absolute confidence will put this into effect according to your wishes and that the will be not be successfully contested by your Thai heir or any statutory heirs, or that the executor will simply ignore your foreign heirs.  Things being what they are in Thailand this might be difficult and it would be difficult and expensive for your three British heirs to contest it in the Thai courts, if things didn't go according to your plan.  If you have sufficient assets in the UK or elsewhere outside Thailand, it would be a neater solution to leave the Thai property to your Thai heir and leave non-Thai assets to your British heirs    

[inThailand]

Why don't you go the safe and sure fire way? Get a registered lease with a sublease clause from your wife. When she passes there is nothing to do, no attorney costs and no fees or taxes. You can then pass it on through the sublease clause.

[Arkady]

6 minutes ago, Tofer said:

Now you've got me really confused - not difficult some may say!

 

How can a foreigner become a joint owner of land if they are not allowed to own land?

 

Did you do that on the strength of a simple pink ID?, or have you obtained full residency status?

 

I have a proper light blue ID card.  I went through all the trials and tribulations over many years to get first permanent residence and then Thai citizenship.  Nowadays it is a lot easier, if you have a Thai wife, because, since 2008, you don't have to get permanent residence first or even be competent in the Thai language.  The key thing though is that you have to be working in Thailand with a work permit and paying tax on a salary of at least B40k a month, if you have a Thai wife (B80k if you don't have one).   That is because the Nationality Act specifies that an occupation in Thailand is needed.    Anyone interested can find tons of information here  

.

[Arkady]

9 minutes ago, inThailand said:

Why don't you go the safe and sure fire way? Get a registered lease with a sublease clause from your wife. When she passes there is nothing to do, no attorney costs and no fees or taxes. You can then pass it on through the sublease clause.

I am not sure this will work.  The Land Code only recognises leases of no more than 30 years which means there has been no need to develop any detailed leasehold law, unlike the UK where there are 999 year leases which have created a fine legal infrastructure.  In Thailand an incumbent lease is not necessarily binding on a new owner because he can argue that under the Civil and Commercial Code he is not a party to the agreement.  Usufruct is better because it there is precedent in the Supreme Court (not that precedents are always binding in Thai courts) upholding the rights of someone who subleased land for 30 years from a lifetime usufructee who died.  The court upheld the rights of the lessee to enjoy the balance of the 30 year lease (it is discussed on the excellent Samuiforsale website) but I can't tell you whether the lessee did enjoy that free from harassment or threats.

 

One of the important legal points that needs to be understood is that in disputes over ownership or leases the courts will normally only take into account the bare bones of what is registered at the Land Dept which is not much, normally just that the property is encumbered with a mortgage, lease or usufruct to another party who is listed on the title deed.  Fine details are usually in the contracts between the parties which are not registered by the Land Dept.  This doesn't mean that the contracts are worthless but it means that a party who believes that he has suffered from a breach of the contract has to seek remedy for damages in the civil court.  In these cases the civil court will not usually be able to force the Land Dept to reinstate a lease or sub-lease but will award damages based on their view of the economic damage caused, which is often much less than what the plaintiff requested.  The courts can also award legal costs but this is done according to their scales which are usually only a fraction of lawyers' fees incurred.  

 

In any event subleases on a Thai property, even if they were respected by the owner, would be of little use to people living overseas.             

[Tofer]

4 hours ago, Arkady said:

 

I have a proper light blue ID card.  I went through all the trials and tribulations over many years to get first permanent residence and then Thai citizenship.  Nowadays it is a lot easier, if you have a Thai wife, because, since 2008, you don't have to get permanent residence first or even be competent in the Thai language.  The key thing though is that you have to be working in Thailand with a work permit and paying tax on a salary of at least B40k a month, if you have a Thai wife (B80k if you don't have one).   That is because the Nationality Act specifies that an occupation in Thailand is needed.    Anyone interested can find tons of information here  

.

Well done Arkady, I am very jealous of your Thai status. Unfortunately I don't have any occupation here, and am unlikely to get one, at my age, other than on a volunteer basis perhaps helping out in the local schools with English.

 

Out of interest do applicants still need to sing the national anthem?

[Tofer]

5 hours ago, Arkady said:

 

You can mandate in your wills that the property is to be sold and the proceeds to be shared between the four designated heirs.  However, you will need to appoint an executor you can have absolute confidence will put this into effect according to your wishes and that the will be not be successfully contested by your Thai heir or any statutory heirs, or that the executor will simply ignore your foreign heirs.  Things being what they are in Thailand this might be difficult and it would be difficult and expensive for your three British heirs to contest it in the Thai courts, if things didn't go according to your plan.  If you have sufficient assets in the UK or elsewhere outside Thailand, it would be a neater solution to leave the Thai property to your Thai heir and leave non-Thai assets to your British heirs    

Thanks again for your advice.

 

That had occurred to me also, but our Thai assets are fast overtaking our UK assets as appreciation is much better here. Koh Lanta is on a similar trajectory to that experienced in Phuket over the last 20 years, plus we are still developing our property here. If all goes according to plan I think our UK assets will pale into insignificance in the not too distant future. A nice dilemma to have, but still a dilemma! Our adopted Son is a good lad and continues his relationships / communication with his cousins in UK, so fingers crossed I suppose.

 

When all said and done, I'll be ashes and they can all stand on their own 2 feet I suppose. Nobody ever gave me anything, except good manners, a conscience and a decent education, which is all any of us should really hope for.

 

 

[Arkady]

22 minutes ago, Tofer said:

Well done Arkady, I am very jealous of your Thai status. Unfortunately I don't have any occupation here, and am unlikely to get one, at my age, other than on a volunteer basis perhaps helping out in the local schools with English.

 

Out of interest do applicants still need to sing the national anthem?

 

You still need to sing the National and Royal Anthems if you apply on the basis of permanent residence but not, if you apply on the basis of having a Thai spouse.  I have a Thai wife but had to sing anyway because we had not registered our marriage for the requisite three years for me to qualify from the exemption.  It was quite an experience singing unaccompanied into a mic in front of 30 senior civil servants.  Getting the Royal Anthem right was a lot harder than the National Anthem.     

[Arkady]

2 minutes ago, Tofer said:

Thanks again for your advice.

 

That had occurred to me also, but our Thai assets are fast overtaking our UK assets as appreciation is much better here. Koh Lanta is on a similar trajectory to that experienced in Phuket over the last 20 years, plus we are still developing our property here. If all goes according to plan I think our UK assets will pale into insignificance in the not too distant future. A nice dilemma to have, but still a dilemma! Our adopted Son is a good lad and continues his relationships / communication with his cousins in UK, so fingers crossed I suppose.

 

When all said and done, I'll be ashes and they can all stand on their own 2 feet I suppose. Nobody ever gave me anything, except good manners, a conscience and a decent education, which is all any of us should really hope for.

 

 

 

I agree.  Providing children with a decent education and attitude, so they can earn their own living is the best you can do for them.  I have seen quite a few farangs and Thais whose lives were practically ruined because of expectations that their parents would help them either while still alive or through inheritance. They didn't exert themselves to the fullest and often their expectations were disappointed due to long illnesses by parents and other unforeseen events.

 

Good to hear that your investment in Lanta is doing well.

[Tofer]

30 minutes ago, Arkady said:

 

You still need to sing the National and Royal Anthems if you apply on the basis of permanent residence but not, if you apply on the basis of having a Thai spouse.  I have a Thai wife but had to sing anyway because we had not registered our marriage for the requisite three years for me to qualify from the exemption.  It was quite an experience singing unaccompanied into a mic in front of 30 senior civil servants.  Getting the Royal Anthem right was a lot harder than the National Anthem.     

Hats off to you for enduring and succeeding with that.

 

It would be fantastic not to have to deal with immigration ever again and feel secure in your residence here, but I think it's a none starter for me.

[Tofer]

31 minutes ago, Arkady said:

 

I agree.  Providing children with a decent education and attitude, so they can earn their own living is the best you can do for them.  I have seen quite a few farangs and Thais whose lives were practically ruined because of expectations that their parents would help them either while still alive or through inheritance. They didn't exert themselves to the fullest and often their expectations were disappointed due to long illnesses by parents and other unforeseen events.

 

Good to hear that your investment in Lanta is doing well.

Absolutely right, a good upbringing is all children should expect, and our nephews have certainly been very fortunate in that respect, so should be able to make their own fortunes hopefully.

 

Thanks, we've been very lucky in Lanta albeit quite late. I came to Krabi about 30 years ago to check out the islands but never saw Lanta, what a blow. Happily when we finally discovered the place prices were still very affordable, positively cheap compared to Phuket, and totally unspoilt. Fingers crossed it doesn't change too radically.

 

[BEVUP]

19 hours ago, Tofer said:

Thanks for the benefit of your experience, hopefully not personally.

 

I agree a usufruct is definitely the way to go to protect your residency.

 

I just wonder what would happen when I and my wife die and my wife's adopted Son (Nephew) takes the title and our will stipulates a quarter share between him and 3 British nephews. 

Usufut protects your right to be a squatter not your house you paid for

& I guess as for your British Nephews = Falangs can't own land in Thailand

[Tofer]

40 minutes ago, BEVUP said:

Usufut protects your right to be a squatter not your house you paid for

& I guess as for your British Nephews = Falangs can't own land in Thailand

That's just the way it is I suppose.

 

[Arkady]

2 hours ago, BEVUP said:

Usufut protects your right to be a squatter not your house you paid for

& I guess as for your British Nephews = Falangs can't own land in Thailand

 

You mean foreigners can't own land in Thailand.  I am a farang and I legally own over 90 rai!