How to Make a Will in Thailand: A Comprehensive Guide

Facing the realities of life and death is never a pleasant experience but writing a will is critical when it comes to preserving your possessions in Thailand and ensuring they go to the proper beneficiaries. In this article, we will discuss the complexities of creating a will in Thailand and why it is such an important step in preserving your legacy. We'll also discuss the importance of a Living Will for those who are concerned about end-of-life decisions.

Do You Need a Will in Thailand?

Regardless of your age, creating a will should be a top priority. Not only does it protect your assets, but it also spares your loved ones from potential complications in the future. Crafting a Last Will and Testament empowers you to dictate how your estate is handled. If you're a holder of significant assets in Thailand and haven't yet put a will in place, the time to consider doing so is now.

The Thai Legal System

In Thailand, having a legal advisor draft your will in both Thai and English can simplify the process. However, for uncomplicated cases, a handwritten will is acceptable. It's important to remember that this will require two witnesses and must be translated into Thai for probate purposes. Additionally, identifying an executor and ensuring they understand their responsibilities is vital. Having a substitute executor in place is advisable to cover unforeseen circumstances.

The Consequences of Not Having a Will

In Thailand, the handling of one's assets after passing away without a Will is governed by specific laws. There exist distinct categories determining who inherits the estate. These categories prioritize the following order: descendants, parents, full-blooded and half-blooded siblings, grandparents, and uncles or aunts. When it comes to a surviving spouse, their rights to the deceased spouse's estate automatically stem from their marital bond.

Moreover, even in the case of separation, the rights of inheritance between the estranged spouses stay intact unless the divorce has been formally granted. Such legal provisions ensure the surviving spouse stands as a statutory heir.

Should you pass away without a will, Thai law, specifically section 1629 of the Thai Civil and Commercial Code, comes into effect. In such cases, your spouse automatically inherits half of the community property (known as Sin Somros), while the remaining assets are divided among the spouse, children, or statutory heirs, which could include parents or siblings. In the absence of children, the estate goes to your parents, and so on, following a well-defined hierarchy.

If your designated heir is a minor, incapacitated, or unable to manage their affairs, the court will appoint a guardian or curator if one isn't already designated. If no living relatives meet the guidelines, your estate goes to the Thai government.

Who is the Executor of a Will in Thailand?

Selecting the right executor for your will demands careful consideration. This decision involves entrusting someone with the crucial responsibility of executing all the stipulations within your will. The executor's role spans from identifying all assets to settling debts and taxes while guaranteeing the rightful allocation of remaining assets to the beneficiaries as outlined in your will. Furthermore, having a comprehensive last will and testament can significantly streamline the probate procedure, easing the journey for your loved ones in handling your affairs.

Protecting Your Assets in Thailand

If you spend a significant amount of time in Thailand, are married to a Thai national, or own assets in Thailand, it's crucial to draft a will that covers your Thai assets. Your Thai will specifically cover assets within Thailand. For assets in your home country, a separate will written by a lawyer is necessary.

Documenting Your Assets

To ensure a smooth probate process, compile a comprehensive list of beneficiaries, including their contact information. You should also provide identification details for your executor(s) or administrator(s). While it's not obligatory to list your assets if you bequeath them to a single person, it's a prudent practice. In the case of asset division, your will should clearly detail the assets involved.

Protecting Leasehold Rights in Your Thai Will

When it comes to property in Thailand acquired under a leasehold structure, understanding the unique nature of a lease is vital. A leasehold is a personal right, distinct from the property itself, and unfortunately ceases to exist upon the lessee's passing. But there are steps you can take to safeguard these rights for your heirs.

Renewable Long-Term Lease: A Key Consideration

For those with a renewable long-term lease who have already settled the rental payments in advance, embedding a succession clause within the lease contract is crucial. This clause becomes a bridge, allowing you to pass on your lease rights to your chosen heir, securing their claim over the property.

The Power of Intent: Your Thai Will

However, even with a succession clause in your lease agreement, it's essential to complement this arrangement with a Thai Will. Your Will becomes the voice of your intentions, specifically stating your desire to transfer these valuable lease rights to your beloved family members.

Inheritance Tax in Thailand

In the context of Thailand, inheritance funds are exempt from personal income tax (PIT) as per the Revenue Code. However, they are subject to inheritance tax, a significant consideration for heirs.

The inheritance tax only applies to legacies that surpass THB 100 million from each testator. This amount, whether received at once or on multiple occasions, determines the taxable threshold for heirs. The tax rate stands at 10%, except in cases where heirs are direct family members—descendants or ascendants—where the rate reduces to 5%. Notably, legacies received by a testator's spouse are entirely exempt from this tax.

Various properties fall under the scope of inheritance tax, including immovable property, specific securities according to the law, bank accounts or financial assets that the testator holds, registered vehicles, and other financial assets as specified by royal decrees.

Understanding the nuances of inheritance tax is crucial, especially considering its impact on the assets received. Knowing the exemptions and tax rates allows for informed decision-making when handling an inherited estate or legacy.

Inheritance Tax Act

Living Wills in Thailand

Planning for Catastrophic Scenarios

Living Wills are indispensable if you're concerned about medical emergencies that could leave you in a terminal state without the ability to communicate your wishes. In such circumstances, a Living Will can be a Power of Attorney or a document appointing a Health Care Representative.

Thai Legal Recognition

Thai law officially recognizes Living Wills, particularly in cases where a patient is terminal and incapable of communication. Although it's permissible to draft a Living Will in English, having it in both Thai and English can streamline the process.

The Significance of a Health Care Representative

Selecting a Health Care Representative is a pivotal decision. This person should be willing to make medical decisions in line with your wishes and advocate for you. Your Health Care Representative should have a copy of the Living Will, as some Thai doctors may not readily inform families when a patient is terminal.

Understanding Estate Planning

Estate planning is a common concept in Thailand where attorneys and clients collaborate to create a structure for dividing assets and deciding the estate's disposition upon the client's death. The process involves drafting a Last Will and Testament while adhering to Thai laws and considering the client's needs and objectives.

What are the Rules for Intestacy in Thailand?

Dying without a will is not uncommon in Thailand, but the consequences can be complicated. Without a will, Thai inheritance statutory law dictates how the deceased's estate is divided among six classes of legal heirs, following a specific hierarchy.

Probate and Property Transfer

In Thailand, transferring property at the time of death requires obtaining a probate order from the Thailand Probate Court. This process applies whether the property transfer occurs through a will or intestate succession.

The Significance of Probate Administration

Probate administration is essential to ensure the deceased's assets are protected and distributed according to their will or to legal heirs. Establishing your status as a legal heir is a crucial step in this process.

Are Foreign Wills Valid in Thailand?

The acceptance and enforcement of a foreign will within Thailand hinges on various factors. This includes the laws of the country where the will originated, Thai legal statutes, and the circumstances surrounding the deceased individual at the time of their passing.

Typically, a will drafted in adherence to the laws of its originating country stands a good chance of recognition and enforcement within Thailand, as long as it complies with Thai legal frameworks. However, it's often advisable for individuals residing in Thailand to craft a separate will within the country. This step ensures that their assets in Thailand align precisely with their intentions and abide by Thai legal specifications, thus averting potential conflicts between foreign will and local laws.

Validating a foreign will within Thailand demands a series of essential actions to safeguard its recognition:

Translation: The foreign will may require translation into Thai by a certified translator to facilitate understanding and adherence to local legal processes.

Authentication: Verification by both the country of origin's relevant authorities and the corresponding Thai authorities is often necessary to validate the foreign will's legitimacy in Thailand.

Probate Proceedings: To establish its validity and ensure execution, the foreign will might need to undergo probate proceedings within Thailand. This process involves presenting the will to the Thai courts and securing a grant of probate, affirming the will's validity and empowering the executor to execute its directives.

What Types of Wills are there in Thailand?

Creating a will in Thailand involves several recognized forms that cater to different circumstances. These options ensure legal validity and safeguard your intentions for your assets and loved ones.

First, there's the customary form—a written will dated and signed by the testator in the presence of at least two witnesses. Notably, individuals who are deaf, dumb, insane, or deemed quasi-incompetent are ineligible to serve as witnesses.

The second form is a holographic will, where the testator personally pens the entire will in their handwriting, signing and dating it.

Alternatively, a will made in a public document involves the testator declaring their will's content in the presence of witnesses and a designated official. The official transcribes the declaration, which, after verification, is signed and sealed, becoming the official will.

A secret document will is another option where the testator writes their wishes, and in the presence of witnesses and an official, affirms it as their will. The official validates this by sealing and transcribing a declaration within the document.

In exceptional circumstances, an oral will is recognized, such as during epidemics, wars, or imminent danger preventing formal will creation. This will, declared before witnesses and later formalized by an official, has a time limit and needs formalization within a month.

Keep in mind that any modifications to a will should align with the original form. For instance, changes to a holographic will must be handwritten and signed by the testator to remain legally binding.

Creating Your Will in Thailand

When drafting your last will in Thailand, be sure to include your personal information, the details of your legal heirs, and information about the executors. Listing your assets and outlining how you want them distributed is also critical. Consulting with an attorney is advisable, as they can help you navigate the process and ensure your will adheres to the appropriate format.

Who Can Create a Will in Thailand?

According to section 25 of the Civil and Commercial Code of Thailand, anyone over the age of fifteen can draft a last will in Thailand.

What is the Simplest Form of a Will in Thailand?

Holographic wills are the simplest among the three forms of wills in Thailand. They are cost-effective and don't require formalities like witnesses or typing.

Can a Foreigner Inherit Property in Thailand?

According to section 1629 of the Civil and Commercial Code of Thailand, a foreigner married to a Thai national can be a statutory heir of their spouse, subject to certain conditions under the Land Code Act.

How to Write a Will and Testament in Thailand

Making a will in Thailand is a crucial step for both Thai nationals and foreigners with assets in the country, much like any country around the world. It ensures your wishes are honored, simplifies the distribution of your estate, and minimizes the burden on your loved ones during an already difficult time. Additionally, understanding the significance of a Living Will can provide peace of mind when it comes to end-of-life decisions. Seek legal advice and take these steps to protect your legacy and secure your assets in the Land of Smiles by browsing the best Will and testament Lawyers in Thailand.