It can be difficult for many to face the realities of life, and death, but if you own assets in Thailand and want to ensure that they go to the people you want to benefit, then a will is necessary.
Also, if you are concerned about what could happen in the event of a catastrophic accident, a Living Will is necessary.
Having a legal advisor draft all of the important documents, in Thai and English, makes the process much simpler but for simple things a handwritten will is acceptable in Thailand. It will need two witnesses, it must be translated into Thai for the courts to probate it, and you will need to identify an executor and make sure that executor is aware of their responsibilities. It’s also a good idea to have a substitute executor for your will.
The fact is, no matter how old (or young) you are, you should have both a will and a living will. By ensuring you have both of these in place you an avoid problems for your loved ones further down the line.
If you spend most of their time in Thailand, are married to a Thai national, or have assets in Thailand then you need a will that covers your Thai assets. If you own property in your home country you will need a separate will written by a lawyer there to cover those assets as your Thai will only covers those assets in Thailand.
Should you die without a will then section 1629 of the Thai Civil and Commercial Code will be applied. Your spouse is automatically entitled to half the community property with the remaining property divided between the spouse and children or statutory heirs which can be parents, or siblings. If there are no children then the remainder would be inherited by your parents, then if no parents, your siblings. The law is quite specific as to inheritance hierarchy so if you have no siblings then half-siblings are next followed by grandparents, and finally, aunts and uncles.
If your heir is a minor, of unsound mind, or incapable of managing his or her own affairs then the court will appoint a guardian or curator if the person does not already have one legally assigned. If there are no living relatives under the Code’s guidelines then your estate will go to the Thai government.
Your heirs will need to hire a lawyer for probate proceedings in court and if they are overseas they will need to come to Thailand to clear your estate if you die without a will.
Using Sunbelt Asia’s legal advisors will make sure that every asset is covered, that the document is translated correctly and we can make sure that there are no loopholes or errors that may force the will to end up in Probate Court. This can happen when parts of the estate are not covered by the will, we can make sure all your assets are laid out clearly in the will.
It is important to have a list of beneficiaries including names, phone numbers, addresses and emails. Identification information of Executor(s) or Administrator(s)- this can be a beneficiary if you wish. List of assets including bank account information, however, if you bequeath all your assets to a single person then it isn’t necessary to identify them in the will but it is a good idea to have the list nonetheless. If the assets are being divided up then that list will need to be in the will.
Anyone can be a witness and when you execute your will in our offices our staff can act as witnesses. It is important to note that a beneficiary cannot be a witness, and Thai law stipulates that a witness cannot be of unsound mind, blind, deaf, or mute.
You should include all local assets in your will; bank accounts, property including condo or house. If you lease your residence that lease terminates with the death of the leaseholder and while an inheritance clause can be included in the lease agreement it is not legally binding. A building owned by a foreigner can be inherited, a condo owned by a foreigner can be passed on to an heir so long as long as the foreigner qualifies for ownership under Section 19 of the Condominium Act, generally the heir must sell the condo within one year. A foreigner can inherit land but must be sold within a year, if it goes unsold then the Land Department will sell the land and charge a 5 percent fee of the sale price (before taxes).
Shares in a Thai company cannot be inherited, the assets of a company with a foreign director or shareholder belong to the company and not the individual. If you are a company director, then a shareholder meeting would be called and a new director appointed in the event of your death.
If you hold a Thai bank account jointly with your spouse then the account will go to your spouse, if you are the sole owner of the account it will be frozen until after the will is probated and your spouse will not have access to the funds.
Other assets such as a car, motorcycle, or boat can be listed in the will.
If you have certain wishes for your funeral you can include those in the will, the executor will arrange the funeral unless you appoint someone else specifically for that job. If there is no executor, then the person who inherits the largest portion is responsible for funeral arrangements if you don’t make any specific requests.
Currently inheritance tax is only on estates valued at more than 100 million baht and is 5 percent for immediate family relatives except for spouses who are not liable for any inheritance tax, and 10 percent for others. Non-Thai nationals who inherit will also be taxed.
If you are concerned about what happens in the event of a catastrophic medical problem that leaves you incapable of communication and in a terminal state then it is important to draft a living will. This can be in the form of a Power of Attorney or a document that assigns a Health Care Representative. Thai law does allow for end of life directives to be given in these circumstances and you need to be quite specific as to what actions you are willing to have the doctor take or forego. These will be listed in the Living Will which can be in English only but things will go more smoothly if it is in Thai and English.
The Thailand National Health Care Act of 2007 officially recognized the legality of Living Wills when the patient is terminal and incapable of communication, but does not include euthanasia.
It does not need to be notarized but does need to be signed by you, your chosen Health Care Representative, and two witnesses. Again, these witnesses cannot be minors and cannot be of unsound mind, deaf, mute, or blind.
You should file your Living Will with your local hospital and also check to see if they have their own form. Hospitals don’t usually keep these on file and will not ask for them – they usually perform every life prolonging measure available but if your Health Care Representative shows them the will then they will respect it.
When choosing a Health Care Representative you must be certain that they are willing to refuse certain care if you are terminal, many Thai people may not wish to refuse care so it is important to choose someone who understands your wishes and is willing to follow your instructions. Make sure your Health Care Representative has a copy of the Living Will, it is also important to point out that many Thai doctors will not inform the family when a patient is terminal so it is of key importance that your Representative is willing to press the doctor for a prognosis or even seek a second opinion.
If you have assets in Thailand including a bank account, condo, house, or other assets then you should write a will naming your beneficiaries.
You need to appoint an executor and a back up executor. This can be a beneficiary.
You need two witnesses – these cannot be beneficiaries.
Your heirs may be liable for inheritance tax.
If you are concerned about end of life care, write a Living Will appointing a Health Care Representative who is willing to follow your instructions and press the doctor for a clear prognosis.
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SUN LEGAL LTD.
1/41-1/42-1/43 Panthera Group Building (G floor),
Sukhumvit Soi 39 (Phrom Phong), Sukhumvit Road,
Klongton Nua Subdistrict, Wattana District,
Bangkok 10110 Thailand
Phone: (+66) 02-662-7004