Integrity Legal

Posts Tagged ‘Thailand Will’

9th December 2009

Wills are testamentary instruments used to state one’s intentions after one’s death. Generally Wills come up in the context of property distribution following an individual’s death. In Thailand, both foreign nationals and Thai Citizens die, leaving Thai property in the form of Thai Real Estate and/or assets. In many cases, the family of the deceased will read the Will, have it process through probate, and have the assets distributed in the manner set forth in the codicils of the Will.

A Living Will is a slightly different instrument. To quote Wikipedia:

“[The Living Will] was first proposed by an Illinois attorney, Louis Kutner, in a law journal in 1969. Kutner drew from existing estate law, by which an individual can control property affairs after death (i.e., when no longer available to speak for themselves) and devised a way for an individual to speak to his or her health care desires when no longer able to express current health care wishes. Because this form of ‘will’ was to be used while an individual was still alive (but no longer able to make decisions) it was dubbed the ‘living will.’

A Living Will usually provides specific directives about the course of treatment that is to be followed by health care providers and caregivers. In some cases a living will may forbid the use of various kinds of burdensome medical treatment. It may also be used to express wishes about the use or foregoing of food and water, if supplied via tubes or other medical devices. The living will is only used if the individual has become unable to give informed consent or refusal due to incapacity. A living will can be very specific or very general. An example of a statement sometimes found in a living will is: ‘If I suffer an incurable, irreversible illness, disease, or condition and my attending physician determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued.’”

The website Thaivisa.com, in conjunction with The Nation Newspaper, are reporting that the Thai government has preliminarily approved a proposal to allow living wills in Thailand:

“The Cabinet Tuesday gave the green light to living wills. Under the draft decree, health professionals will honour a dying patient’s wish to forego treatment during the terminal stage if it can only prolong life. The draft prepared by the National Health Commission Office will now go to the Council of State for review.”

It will be interesting to see how this legislation progresses through the various official agencies. Living Wills can provide a means and method for transmitting one’s wishes in the event of misfortune. This author hopes that this legislation will receive positive treatment by those with authority to change the law.

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8th November 2009

In many cases, those thinking of drafting a Thai prenuptial agreement also ponder the related issue of a Last Will and Testament in Thailand. Although both of these instruments can have an impact upon the distribution of Thai property they should not be viewed as completely complimentary devices as they serve different purposes and the drafting of these documents requires adherence to different sets of rules regarding legal formalities.

A Thai prenuptial agreement is an instrument used for the purpose of pre-designating a property distribution should a marital relationship dissolve. If the underlying marriage is registered at an Amphur office (Civil Registrar’s office) in Thailand, then the Thai prenuptial agreement must be simultaneously registered with the marriage. Failure to simultaneously register the Thai prenup could, and may very likely, result in a Thai court subsequently refusing to take notice of the prenuptial agreement when deciding how the marital estate should be divided.

A Thai will is a testamentary instrument that is used to divide the estate of a Thai or one who has died in Thailand. When drafting a will in Thailand, or in any jurisdiction, one must adhere to certain legal formalities in order to ensure that a court will enforce the provisions of the will itself. When a court divides the estate of the deceased, this process is known as probate and a probate court could throw out an improperly drafted will. This is why retaining the advice of a Thai lawyer may be advisable when drafting a new Thai will.

So-called “spouse election,” statutes should be mentioned when discussing Thai prenuptial agreements and wills for United States Citizens looking to marry Thai nationals. A “spouse election,” statute is a type of legislation that exists in many jurisdictions throughout the United States. Such legislation is designed to curb disinheritance of surviving spouses in wills or other testamentary devices. The result of “spouse election,” statutes in the USA is that the spouse of a deceased person can usually be confident that they will inherit at least 1/3 or 1/2 of the net probate estate (the actual percentage depends upon the state). Such rules are important to note for those drafting a prenuptial agreement because a prenuptial agreement should not be drafted in such a way that its provisions contravene the “spouse election” statute in the state of the US Citizen’s residence. Therefore, it may be wise to consider Wills and Prenuptial agreements as wholly separate instruments and thereby keep each of these instruments free of provisions that stray into the bailiwick of the other.

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9th May 2009

An odd question came up while I was in the office today. A married couple (one Thai and one non-Thai) was researching Thailand property ownership and after going over the usual information regarding Thai Leases, Thai Mortgages, and uses of Thai Limited Companies for property ownership a more interesting question arose. All of the questions surrounding their prospective property were routine, but then the conversation turned to Thai Wills and what would happen to the Thai Real Estate upon the death of the Thai husband.

Pursuant to sections of Thai law it is illegal for foreigners to own land without the written approval of the Thai Interior Minister. As a practical matter, obtaining written approval from the Interior Minister of Thailand is difficult, if not downright impossible. This brings up a conflict of laws because when a Thai will speaks during the Thai probate proceedings, ownership of property that was owned by a Thai could be passed to a non-Thai. What happens to this property since it is essentially illegal for a non-Thai to own land?

Thai law deals with this issue in a quintessentially Thai way. The law says that the property must be sold within 6 months of the closing of the Estate. In the United States (as well as other common law countries) probate of wills entails the closing of a deceased person’s estate. Generally Judges in common law countries wish to get estates closed as quickly as possible. In Thailand, Thai Judges are not as expeditious in getting wills probated and estates closed. The upshot is that estates will stay open for years and in some cases decades.

The practical implication of this failure on the part of Thai probate courts to quickly close estates creates a situation in which a foreigner in Thailand can maintain de facto ownership and control of an inherited piece of real estate provided the estate stays open. Should the de facto owner decide to sell the property, then all he or she would need to do is close the estate, legally inherit the property, and execute a sale. This process is probably more complicated than this and a possibility always exist that a court would close the estate quickly, but at present this does not appear to be the case.

(Please Note: Nothing written herein should be used in any way as a substitute for personalized legal advice from a licensed attorney. No lawyer-client privilege or relationship is executed between reader and author of this piece.)

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