Thailand has an intricate law relating to Inheritance and Succession. Substantive knowledge of Thai law and court procedures is essential to protect the interests of the client. Under certain circumstances a foreigner might need a will in Thailand. Their Thai will then covers their assets in Thailand, like investments, bank accounts, vehicles, and personal property.
In this article we will discuss the following topics for your further information:
1) Statutory Heirs in Thailand
When a foreigner passes away in Thailand, the court must be provided with a copy of their will (if any). In such a case, the family or attorney of the deceased person shall submit the will to the court, and the assets will be divided according to the provisionss of the will. If there is no valid will, the estate is divided among the statutory heirs according to the law on intestate succession.
In accordance with Thailand’s Civil and Commercial Code (Section 1629), there are six categories under which the statutory heir of a deceased person can fall. There is a specific order in which these heirs can inherit:
Section 1635 of the same Code also specified how the estate assets of the deceased person need to be distributed to their surviving spouse (in addition to the six classes of legal heirs listed above).
In Thailand, statutory heirs have the option to serve as Estate Administrators or, alternatively, to designate a non-heir as the Estate Administrator with the consent and approval of the Court. This procedure is integral to safeguarding the decedent's final wishes and is rigorously overseen by the judicial system. Additionally, this process ensures adherence to Thai laws by the heirs, thereby protecting the interests of all parties involved and upholding the integrity of the estate administration process.
2) Last Will and Testament
Estate administration and planning generally involve an attorney and client working together to structure the client’s assets and plan for the distribution of the assets in the event of the client’s death. This typically involves drafting a Will that meets a client’s wishes and complies with all relevant laws. This could involve the establishment of trusts or other legal structures as well.
In accordance with the Civil and Commercial Code of Thailand, Section 1646.
“Any person may, in contemplation of death, make a declaration of intention by will concerning dispositions as to his property or other matters which shall take effect according to the law after his death.”
There are different types of Wills in Thailand under the Civil and Commercial Code:
Either a Thai Citizen or a foreigner can be witness to a will.
Individuals Not Eligible to Witness Wills in Thailand:
Appointment of the Estate Administrator
When someone passes away, their assets are inherited by their heirs. Before any statutory heir can inherit, there are processes and details that must be managed. Inheritance law (Thailand) stipulated that an estate administrator must protect, distribute, and handle these properties. This estate administrator needs to be appointed either by court order or in the will of the decedent.
The following are the duties of an estate administrator:
The Court shall consider if there is a will expressing the intention of appointing someone as an estate administrator; the Court has to order it in compliance with such conditions. However, if a person dies Intestate or has no will and testament, then the heirs or legatees can file for an application to appoint someone as the Estate Administrator and manage all of the estates of the deceased person.
The Civil and Commercial Code of Thailand, Section 1711 to 1733, determines the ways to appoint an estate administrator. There are two ways for an estate administrator to be determined:
The Civil and Commercial Code of Thailand stipulates the discharge of an estate administrator under Section 1727, which states, “Any interested person may, prior to the completion of the distribution of the estate, apply to the Court for the discharge of an administrator for the reason of neglect of his duties or any other reasonable cause. Even after having assumed his functions, the administrator may resign for any reasonable cause subject, however, to the permission of the Court.”
This section of the Code also stipulates that any interested person may apply to the Court for the discharge of an administrator for the reason of neglect of his duties or any other reasonable cause prior to the completion of the distribution of the estate.
Furthermore, the Supreme Court mentions that if an estate administrator is likely to be dishonest in managing and distributing the estate, a person of interest can discharge him or her as well, for instance, if the estate administrator prepares a false list of an estate or declare the false outline of family members to conceal the true amount of members then they can remove the said administrator as well.
Inheritance: company shares
Navigating Thai Inheritance Law, especially concerning the transfer of controlling shares owned by a foreign director, presents a complex legal scenario. Under Thai law, such shares do not automatically transfer to the surviving heir. Instead, the heir, upon presenting proper evidence, must be formally registered as a shareholder by the company. It is important to understand that heirs cannot simply assume ownership of these shares without undergoing the proper legal process. For individuals facing this intricate legal situation or seeking to understand their rights and obligations under the Commercial and Civil Code of Thailand, Juslaws & Consult is here to assist. Our legal team offers comprehensive services to guide you through the complexities of Thai Inheritance Law, ensuring that you are well-informed and adequately represented in matters concerning company assets and share inheritance.
Inheritance: lease contract or tenancy
This is also a difficult subject in Thailand as a lease agreement is a personal contract and is terminated upon the death of the tenant. If a lease is well structured, then it can be inherited but only if pre-approved by the land owner. In the case of inheritance, the heirs must start a new lease agreement from scratch; the remaining term is not inherited.
According to the Land Code Act, a foreigner cannot own land; this includes the land which is part of the estate. A foreigner may only inherit land as a legal heir when they receive permission from the Minister of the Interior. Specifically, the law speaks about foreign ownership under a treaty (special permission for foreign heirs), but at this time, there are no treaties for foreign ownership.
When a statutory heir is a foreigner who inherits land (like a Thai spouse), they will have one year in which to dispose of the land they inherited. If the foreigner does not dispose of the land in time, the Land Department may do so on their behalf and retain 5% of the sales price as a fee.
In Thailand, the inheritance of apartments that fall outside the scope of the Condominium Act is generally not recognized by Thai courts. This legal nuance underscores the importance of understanding specific property laws and inheritance regulations within the country. For individuals seeking guidance or facing challenges in this area, our team of property lawyers at Juslaws & Consult is equipped to provide expert advice and support. Contact us to navigate the complexities of property inheritance laws and ensure your interests are protected.
Inheriting a Condominium in Thailand
Inheritance of such a property does not automatically qualify the heir to register foreign ownership of the unit. They will have to individually qualify for such a registration. If they do not qualify as per the condominium act, then they must dispose of the unit within one year. If they fail to do this, the Land Department can sell on the foreigner’s behalf.
Generally speaking, in its simplest sense, foreigners do not need a separate will in Thailand as long as they have a legal foreign will elsewhere. However, there are some circumstances in which a foreign will is not sufficient. If the surviving spouse is a Thai national, for example, or there are specific real estate assets in Thailand, it might be better to involve a Thai law firm in the creation of a Thai will.
A limited jurisdiction clause can be included in a last will according to Thai laws. In such a case, your valid last will in another country must not include assets based in Thailand so that disputes can be avoided.
Juslaws & Consult offers comprehensive counsel across all facets of Thai family law, with specialized services in wills and estate administration to address the needs that arise from death or incapacity. Our team includes skilled professionals adept at preparing essential documents and representing clients in court for the appointment of an estate administrator—a key aspect of our family law offerings.
The process of filing a motion for the appointment of an estate administrator with the court involves the submission of several critical documents. This includes a letter of consent from the heir entitled to the deceased’s assets, accompanied by a detailed relationship outline for the court's consideration. Additionally, we provide expert legal consultations for foreigners looking to appoint an estate administrator in Thailand or to draft a will that complies with Thai legal standards.
Our attorneys at Juslaws & Consult bring to the table extensive experience in drafting wills in Thailand, ensuring that these documents are in full compliance with both Thai law and the legal requirements of the client’s home country. For those considering creating a will in Thailand or in need of estate administration services, consulting with a knowledgeable Thai lawyer is highly recommended.
For further details or to discuss your legal needs, please do not hesitate to reach out to us at Juslaws & Consult. We are here to provide the guidance and support you require.