A Will is a legal document where you express your decision as to who will inherit your wealth and what part of it will go to whom after you have deceased. If you do not draft up a Will, the law decides who gets what and the rules can be found in clause 1599 and following of the Commercial and Civil Code of Thailand (CCCT).
No matter how little or how much property you may own, you want to be sure that it is distributed to the right people after your death. In Thailand as in most countries, “When a person dies, their Estate devolves on the heirs.” (Section 1599 of the Civil and Commercial Code, “CCC”) In Thailand, if a person dies without a Will, it is down to the state to decide who will benefit from the estate of the deceased. (Statutory heirs) (Section 1603 CCC).
There are six classes of statutory heirs in Thailand, each class is entitled to inherit in the following order: (section 1629 of the Civil and Commercial Code “CCC”)
The surviving spouse is also a statutory heir (Section 1635 CCC). It must be a legal and registered marriage.
It would be very comforting to know that at the time your loved ones are mourning your death, you will have done everything in your power to avoid problems. A Will lets you choose your heirs (“legatees”) and clearly outlines your last wishes. If you do not make a Will, the law in Thailand will instead determine who inherits your property. A proper Will is a guarantee that your wishes will be respected. It will also make settling your succession that much easier.
A Will can do many things for you: ·
Any capable person of 15 years-old and older, as mentionned in clause 25 of CCCT, can draft up a valid Will in Thailand.
There are several forms of Wills and the choice is yours. For example Holograph Wills, Wills made in front of two witnesses, and Wills made in front of a public authority.
The Holograph Will is the simpler form of Wills. It doesn’t cost a penny and it may contain simply a few sentences. It must be hand written, NOT typed (like a computer), dated and signed. You do not need witnesses.
A Will before witnesses must be written by yourself or someone else, it may also be typed, but it must be drafted before two adult capable persons and they must be aware that this constitutes your last Will and Testament. All three people, the testator and the 2 witnesses must sign the document. The writer of the Will must also be specified under Thai Law. Warning: Wills are subject to certain conditions that must be followed, and failure to respect these conditions the document may very well be declared void.
A Will made in front of a public authority is registered at the Amphur. It has certain advantages related to the authenticity of the document. This type of Will probably originates from the Civil Law distinction between an authentic Act, a semi-authentic act and a non-authentic act. Therefore, it would be considered as the most difficult Will to contest in Thailand. However, a Will made in front and signed by 2 witnesses is also difficult to contest if the Will follows the requirement of Thai Law.
Some prenuptial or marriage agreement may also include a clause in case of death. Wills can always be changed, at all times, which means that if such is your desire, you may draft up a new one.
SEVERAL GOOD REASONS FOR CHOOSING A THAI LAWYER TO MAKE A WILL
A Will is an important legal document; the settlement of your succession is based on it. It is therefore essential that the Will is well drafted, complete and free of ambiguity. In Thailand, you must be at least 15 years old to make a Will. (Clause 1703 CCC)
When you have recourse to the services of a lawyer with expertise in the planning of successions and drafting of legal documents, you can be sure that there will be no problems in the interpretation of your will. Your lawyer knows how important it is to choose the right words and he will formulate your last wishes in legal terms according to your instructions. He will also help you remember everything that should be included to make the settlement of your succession an easy task.
Another advantage to choose a lawyer to make a Will is that he will keep the original in a safe place, where it cannot be lost or destroyed. You will have a copy and you can also give another copy to a person that you trust. The content will remain confidential until your death (unless you tell someone or there is a Court order to disclose it) and you can always change or modify your Will if you wish.
About Last Will and Testament (Thai Language)
All countries have different laws. In some of them your ex-wife/husband can still make a claim on your Estate in Thailand if you don’t take legal steps to exclude them. This can be done in a Thai Will.
Section 1667 states that “In the event of a Thai subject making his Will in a foreign territory, such will may be made either according to the form prescribed by the law of the country where it is made or according to the form prescribed by Thai law.”
A legal foreign will could be acceptable in Thai Courts. However, they have to be translated and authorised by the Ministry of Foreign Affairs of Thailand. A Thai Will should make it easier but it is not essential.
If you have assets in another country, the Will dealing with your foreign assets MUST normally be valid under the laws of the country in which you are domiciled. Domicile is extremely complex and is most definitely should NOT be confused with residence. It is possible to be resident in one country and domiciled in another. If you were born in a foreign country, to change your domicile to Thai obviously involves you moving to Thailand.
If you are updating either of your Wills, be very careful that you don't inadvertently revoke one of your other Wills. If you do a new Will in Thailand, send a translation of it to whoever holds your foreign Will and ask them to confirm that your old Will in your original country is still valid if this is what you wish.
If you make a Will in Thailand, it should be in Thai language but it is not a requirement. If it is not in Thai, the executor of the Estate or your heirs might have some problems. A good law firm should be able to provide you a bilingual Will so that you can understand the content of it. A translation Thai to English will cost you between 300 to 500 baht per page. Some other languages could be more expensive (Scandinavian, Japanese, etc.).
Foreigners are normally not allowed to own land in Thailand. However, a foreigner who acquires land by inheritance AS A STATUTORY HEIR (Clause 93 of the Land Code), the ministry shall permit inheritance of the land to an alien. However, it’s rarely done and the alien will have a delay of not less than 180 days or no more than one year to transfer the land to a Thai national. (See clauses 93 to 96 of the Land Code). If a foreigner acquires Land by inheritance as a legatee (through a Will) than the administrator of the estate will dispose of the land and give the proceeds to the foreigners. We can deduct that from the land code and also from a document published by the land department, a kind of directives for these cases. (see the Thai copy here).
You may appoint a person or the administrator of your Estate to arrange your funeral. Some wish their ashes to be scattered in the sea, some chose to be buried in a Chinese cemetery, some prefer not to mention anything.
One other point to bear in mind is that your foreign Estate may be liable to Inheritance Tax in your country. So far, there is no inheritance or death tax in Thailand. But the Thai government has been thinking about changing the law for many years:
To avoid paying too much Inheritance Tax in some cases, it is common in western countries to have a clause avoiding the transfer of ownership to a heir unless this person survives the testator by 30 days.
Many rules in Thailand are not exactly the same as in your country. This is why you must be careful if you don’t want your will to be void. Do you know a witness to a Will can’t be a beneficiary? (Clause 1653 CCC) Do you know that the name of the writer of a Will (if it is not the testator) must sign his name and add the statement that he is the writer? (Clause 1671 CCC) Do you know that you can appoint a “controller of property” if you desire to dispose your property in favour of a minor, but if you don’t want the parents, guardians or custodians to manage this property? (Sections 1686 and following CCC).
A Thai lawyer can explain this to you and advise you what you can do or not do in this country. It is normally inexpensive to make a will in Thailand and it can be done quickly. It will protect you and give you peace of mind.