HOW TO  MAKE A LAST  WILL AND TESTAMENT  UNDER THAI LAWS

Everything in this world is impermanent except “Death” waiting for all of us. Having a good “Will” in  life definitely makes you happy and tranquil for every breath you take.

It is undeniable that we work hard during our life just for the happiness of our beloved ones. This ideology makes the perpetuity of our lives.

“Good Will” shall never die

Once a person dies without making a will (intestate), the estate will devolve on the statutory heirs whereby the statutory heirs will have to go to the Court of Justice to prove their heirship. If there are several heirs, it always ends up in the antagonism. In case a deceased is a foreigner who died in Thailand, the diagram of heirship in Thailand and his native country must be clearly proved.

A word “Will” in Thai is “PINAIKAM” whereby the testator makes the arrangement for his estate in contemplation of his death. The estate in the will must belong to the testator. Once a married person dies, the assets must be shared equally with the spouse as marital property. Only the part of the deceased will be the estate.

The will must be legally effective after the death of the testator not similar to the act of  “Gift Inter Vivos” which is effective even the doer is still alive.

On the other hand, if there is a last will and testament clearly stating how the estates will be bequeathed and who will compile the assets, you may contemplate in anticipation that your heirs will be away from the hardship.

Inventory of Estate

The inventory of estate should be clearly verified and made to attach as a codicil to the will.

The tangible assets are quite easy to understand, for example, titled deed of  land and house or condominium unit or even shares in a Thai company.

For some intangible assets, for example, rights to claim from agreements, i.e., loan or mortgage or pledge of shares in a company, it should be clearly explained by a legal counsel to your legatees with all supporting documents.

With the proper arrangement, the cross border judicial process will be definitely avoided.

Foreign Husband can be a Legatee of his Thai Wife

A Thai wife can make a will to bequeath her estate even land and house to her foreign husband otherwise he will have to share the estate with the other heirs.

In case Thai wife dies without will, her foreign husband will share the estate with her child or children including your native and step-children. 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 Partnership

Thai laws acknowledge neither cohabitation without registration of the marriage nor 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, and otherwise the circumstance of life partnership must be proved if it is not so 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 partnership basis. However, there are a lot of facts, which 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 very tragic that the common or de facto wife in Thailand cannot do anything. To avoid this tragic situation, you may mention in the will that your common law wife can arrange for the funeral.

Persons who can make a will (Testator)

A person who can make a will must be: –

1)      natural person not a company

2)      reaching the age of 15

3)      not being incompetent by court judgment


Beneficiary (Legatee) of the Will

The testator can make the will to bequeath the estate to any person either natural or juristic person. The legatee can be Thai or foreigner or minor or even insane person. However, there are some restrictions under Thai laws for a will made for benefit of the testator”s creditors.

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 estate will be a person responsible for filing in case of necessity.  There is no requirement to block the estate by the government except special circumstance.


Legal Form

There are many legal forms to make the will. You may study and consult with a lawyer to ascertain the form most fit to your needs.

Ordinary Will

The ordinary will may be made in writing, dated at the time of the making the will and signed by the testator before at least two witnesses present at the same time who shall then and there sign their names certifying the signature of the testator.

The legatee or the spouse of the legatee cannot be a witness.

No erasure, addition or other alteration in such will is valid unless made in the same form as prescribed above.

A will may  be made by holographic (handwriting) document, that is to say the testator must write his own hand the whole text of the document, the date and his signature.

No erasure, addition or other alteration in such will is valid unless made by the testator”s own hand and signed by the testator.

Public Documented Will

A will may be made by a public document, that is to say :

1)      The testator must declare to the District Chief before at least two other persons as witnesses present at the same time what dispositions the testator wishes to be included in the will

2)      The District Chief must note down such declaration of the testator and read it to the latter and to the witnesses

3)      The testator and the witnesses must sign their names after having ascertained that the statement noted down by the District Chief corresponds with the declaration made by the testator

4)      The statement noted down by the District Chief shall be dated and signed by official who shall certify under his hand and seal that the will has been made in compliance with (1) to (3) above

No erasure, addition or other alteration in such will is valid unless signed by the testator, the witnesses and the District Chief.


Will in Secret Document

The will can be made by a secret document by the closed up document with the testator”s signature across the closure. The closed document must be produced before the District Chief and at least two witnesses.


Verbalized Will

A will may be verbalized in case the testator is going to die causing him not able to make the will by other ways. There must be at least two witnesses who are required to report promptly to the District Chief to notify the date and details of the will. The Chief District will note down and ask the witnesses to sign.

The Executor of Estate

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


Trustee

The concept of trustee is not acceptable by Thai laws. However, to safeguard the interest of minor heirs, you may set forth a condition to prohibit the sale or disposal of real estate until your heirs become major at the ages of 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.


Contestation of the Will

The will may be contested by the statutory heirs who are disappointed by the will. The contestation must be made within one year from the date of awareness. In case of contestation, the probate process will become contentious whereby the litigants will have to prove the facts they assert. The contestation is always on the mental and voluntary status. It is advisable to make the will with the medical practitioner and psychiatrist or shrink who

will make the affidavit with the video or photos showing that the testator was of sound mind without fraud or duress.

The qualified notary public should be also the 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 in any specific issues with the competent legal counsel to obtain the first hand information.


THE TESTAOR MAY ANY TIME REVOKE HIS WILL WHOLLY OR PARTLY BY THE NEW WILL