It is not easy to think about death but estate planning is very important. It ensures that your wishes are respected after your death and makes succession easier to settle.
A Will is a document that states your wish regarding the distribution of your assets upon your death. It must be drafted by a lawyer to make it valid under Thai law.
What is a Thai Will?
A Thai Will is a legal document that details how you wish to leave your property and assets upon your death. It should be in writing and signed by you in the presence of two witnesses (section 1656 of the Civil and Commercial Code).
A will should also list your heirs, name an executor and provide detailed instructions about how you want to leave your property. The executor is responsible for gathering and managing the deceased person’s assets, paying debts, taxes and other liabilities, and distributing the remaining property according to the instructions in the will.
A foreigner wishing to leave their property in the form of shares in a Thai company must draft a Living Will which is not legally binding but can ensure the company adheres to your wishes. It is important to have a legal advisor draft these documents as it can be complicated to translate them and make sure they comply with Thai law.
Who is a Thai Heir?
When a person passes away in Thailand their property and assets must be allocated to heirs. This can either be done in accordance with a Thai Will or through the law of Intestate Succession if there is no Will.
Regardless of the type of succession, a well-drafted Will by a lawyer is highly recommended. This will help to minimise any disputes and misunderstandings after the testator’s death.
A Thai Heir is defined by inheritance laws which classify heirs into different classes depending on their relationship to the deceased. Spouses are classified as statutory heirs and receive half of the estate before distribution to other heirs.
Heirs must be of the appropriate age to create a Will. A Will must be in writing and signed by the testator in the presence of at least one witness. It is also advisable to draft a Will with the help of a lawyer in order to make sure that it is valid and legally binding in Thailand.
What happens if there is no Thai Will?
When someone dies in Thailand and does not leave a Thai Will, the law on intestate succession will govern the distribution of his property. This is a complex and lengthy process that will require the services of a lawyer.
If a person is married, their spouse will inherit half of the estate. The other half will be distributed amongst the statutory heirs.
The legal team at Siam Legal can assist with the drafting of a Thai Will that will detail your assets in Thailand, including real estate, bank accounts, vehicles and personal items. It may be possible for a foreigner to use a valid last will from their home country but this could prove to be difficult as all documentations would have to be translated, notarized and then approved by the government.
It is therefore preferable for a foreigner to make a Thai Will which will include a limited jurisdiction clause limiting the effect of the Will to assets in Thailand only. This will help to avoid potential disputes.
What happens if there is a Thai Will?
If you die without a Thai Will then your assets will be divided under the guidelines of Section 1629 of the Thai Civil and Commercial Code. Your spouse is automatically entitled to half the property and the remainder will be split between your children or statutory heirs (under the Code) which would include your step brothers and sisters, grandparents, aunts and uncles.
For foreigners who own assets in Thailand it is advisable to make a will specifically for their assets in the country. This will be much easier to enforce and it can be written to exclude any assets in other countries.
A will can also be used to state your wishes regarding end of life care. This can include appointing a health care representative and pressing the doctors to follow your instructions when making treatment decisions. A will can also stipulate funeral arrangements. A will can reduce complications and quarrels between family members which is a common occurrence when there is no clear plan in place.