Dont Forget About Your Will (Even If You are Abroad)

General Press Releases Wednesday December 2, 2015 14:48
Bangkok--2 Dec--Opus Law

I have recently become aware of the distressing state of affairs involving foreigners after learning about one foreigner's story in particular. He had been a resident in Thailand, who tragically died following a traffic accident on the road. Unfortunately, he did not draw-up a will, which resulted in tremendous problems for his family when they tried to obtain the release of his body for repatriation and burial.

It's only human nature to avoid or put off thinking about death and the consequences that are associated with death. What are these consequences if there is no valid will, you might ask? It's simple. Your assets could end up going to people who you may not have expected, or even worse, if there isn't anyone who is entitled by law to inherit your assets, under rules relating to intestacy (where no will or valid will exists), your assets could inevitably go to the government of the country where you were situated.

Imagine this scenario, a couple that have been living together for numerous years have also gone through a form of religious ceremony (even if this ceremony was performed in Thailand) and were under the assumption that they are married with all intents and purposes; but until this couple has legally entered a marriage without the presence of a will, the apparent wife or husband will not be entitled to benefit from their partner's estate.

I would advise people from all age groups to consider having a will as it is a sensible precaution. Senior citizens or retirees are strongly advised to make plans regarding the future of their untimely passing by creating a legal and valid will. It would be highly practical to employ the services of a lawyer to ensure the success and validity of the will.

The laws in Thailand relating to the creation of a will and the administration of estates can be found inThailand's Civil and Commercial Code at Sections 1646 et seq.

In Thailand, the most common form of a will is usually in writing and that must be dated and signed by the creator in the presence of at least two witnesses. In addition, they will then add their names, details and signatures to the will.

An acceptable will does not necessarily have to be drafted in Thai, but it would be perferable for the will to be in both languages (Thai and English).

It is recommended for separate wills to be prepared with one including the assets held in Thailand and a secondary will for assets held in your home country. For wills made overseas, you will need to prove it was drawn overseas, translated in Thai, and notarized and approved by the Thai government. Since the formalities related to wills could differ between jurisdictions, this process must be completed in its entirety before applying for probate in Thailand.

The amount of time it takes for an applicant to apply for probate and administer an estate can vary depending on the nature and the extent of the assets, as well as where the assets are held. It would be highly suggested for foreigners and/or their beneficiaries to employ the services of a Thai-based law firm.

It is with our highest recommendation that the original will should be kept in a safe place. If a safe place cannot be arranged, the document should be left with a lawyer or in a safety deposit box at a bank.

The will should have at least one person appointed to act as 'executor' of the will to help organize with the administration of the deceased's assets. All assets (real and personal property, bank accounts, cars and other personal items) must be clearly listed along with their beneficiaries in the will.

Foreigners should be notified that the Thai government, unlike the UK and many other countries, no longer recognize Trust Laws. These laws have been made obsolete in 1935 with the introduction of Book 6 of the Civil Code. If the 'testator,' creator of the will, states to leave property to a minor (under the age of 20) residing in Thailand, this should be done by appointing an executor, administrator or guardian to manage the property until the minor reaches the legal age of 20. The powers related to the exercise of management, investment, and distribution of income, are limited by Ss 19-27 of the Civil Code.

The laws related to taxation of assets in Thailand are subject to change starting the 1st of February 2016.

The Thai government has formally announced the Inheritance Tax Act in the Royal Thai Government Gazette on the 5th of August 2015, which states that assets valued over 100 million THB are taxed at a 10% rate on the proportion of assets that exceed the threshold.

If the beneficiary is a descendant or older relative of the deceased, the rate will be reduced to 5%. These laws will also affect foreigners who are residing or inheriting assets in Thailand. The Gift Tax, a newly passed law, prevents such assets from being taxed will be effective on the 1st of February 2016.


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