“Good Will” of your Thai wife shall never die

by Mr. Ponthep Werachon

Thai Solicitor
Mrs.Darunee Werachon

Thai Solicitor Accountant

WERACHON LAW OFFICE : 315/304, Moo 12 Theppasit Road (Soi 12) Nongprue,Banglamung, Pattaya City Chonburi 20260

Kingdom of Thailand Tel: (038) 304 084, (038) 251 533, Fax: (038) 304 027 Mobile: 081 423 4255, 089 889 6483, Website: www.thaisolicitor.com, e-mail: thai@werachonlawyers.com

Foreign husband can be a Legatee of his Thai Wife

A THAI wife can make a last will and testament to bequeath her estate even the piece of land and house to her foreign husband. The last will and testament will preclude all her other heirs or her Thai family to share the estate with her foreign husband. The ownership of land can be put in the name of her foreign husband as the executor of estate. The right of inheritance for a foreign husband is not restricted by the laws of the Kingdom of Thailand.

In case Thai wife dies without preparation of her last will, her foreign husband will have to share the estate with her other heirs which can be children or your step-children and her parents. Some Thai women married to foreigners may have nearly a dozen children from her previous husband (s).

If she is childless, the husband will have to share the estate with her parents or even brothers or sisters if she has no parent.

The will can solve this problem. Common Law Wife and Husband (Concubinage) or Life PartnershipThai laws do not acknowledge either cohabitation without registration of the marriage or common law wife and husband. In this case, each of them will not be entitled to devolution of estates as statutory heir, the will can absolutely solve their problem, otherwise the circumstance of life partnership must be proved if it is not obvious.

A life partnership is the case of a common law wife and husband living together and ostensibly treat each other as wife and husband. They jointly work and earn their living together. The properties earned during their cohabitation can be shared on a partnership basis. However, a lot of facts must be ascertained by the court.

Funeral Arrangement

Some Thai common law wives cannot arrange for the funeral of their common law foreign husbands. Most embassies will keep the corpse of their nationals in the police hospital in order to find their relatives in their native countries. It is tragic that the common or de facto wife in Thailand cannot do anything. To avoid this situation, you may mention in the will that your common law wife can arrange for the funeral.

Taxation

There is no tax for succession or inheritance or "Death Tax". If the deceased has no income in the year of death, it is not required to file a personal income tax return (Phor.Ngor.Dor. 91) of the deceased. The executor of the estate will be responsible for filing if necessary. There is no requirement to block the estate by the government except in special circumstances.

Verbal Will

A will may be verbalized in case the testator is going to die causing him unable to make a will by other means. There must be at least two witnesses who are required to report details promptly to the district chief, who notes the details and asks the witnesses to sign.

The Executor of Estate

The testator may appoint the executor of the estate, which can be the heir or any third parties. The executor will compile the estate to allocate to the legatees.

Trustee

The concept of trustee is not recognized by Thai laws. However, to safeguard the interests of minor heirs, you may set forth a condition to prohibit the sale or disposal of real estate until your heirs become major (20 years old), or even appoint a controller of estate, which can be either individual or corporate to look after until your minor heir becomes major.

Probate of Will

In Thailand, there is no out-of-court system to probate the will instead of going to the judicial process. However, in our experience, we have always found some banks agree to pay to the legatee who have a clear and precise will and is legally reliable by local notarization.

The court process to recognize the will, which is clear, precise and legally reliable, will be one-stop.

The petition to probate the will is a non-contentious process unless there is a contest by the third party. If there is no contestation, the court will verify the authenticity and form of the will especially witnesses who will have to testify in court for the mental and voluntary status of the testator. If case the testator and legatees are foreigner, the identity must be checked by their passport.

Contesting the Will

The will may be contested by statutory heirs. The contestation must be made within one year from the date of awareness. The probate process will become contentious whereby the litigants will have to prove the facts they assert. The contestation is always based on the mental and voluntary status. It is advisable to make the will with a medical practitioner and psychiatrist to make an affidavit with a video or photos showing that the testator was of sound mind without fraud or duress. A qualified notary public should be also a witness for the execution of the will.

The court will have a judgment in your favor or dismiss the petition. If the judgment is in your favor, you may show to the bank or land office to hand over money or transfer the land and house to you. If you are foreigner, you have to seek a permission from the Minister of Interior to hold the land not more than one rai (please see the details in the Land Code).

Jurisdiction of the Will

The testator should seek the proper advice from the local solicitor about the jurisdiction of the will. Each country has her own unique laws and requirement. The legal booby traps under Thai law should be carefully verified.

Language of the Will

The will can be made in any language. If it is made in Thai and another language, the Thai version will be prevailing.

The English language with the Thai translation is widely acceptable by Thai courts.

Please note that a will is a juristic act, which will be effective after the death of the testator who will have no chance to be aware if it is good or bad. It is advisable to study and discuss further details of any specific issue with a competent legal counsel to obtain first-hand information.