Making A Will
A will is the instructions of a person or the testator regarding what to do with their assets or estate after they die. In Thailand, disposition of a deceased person’s property and probating of their will is governed under the Civil and Commercial Code. You should have a will in order to ensure that your assets are distributed as you wish them to be, and to avoid problems and disputes among your heirs after your death.
A will may also contain instructions on how to dispose of your body when you die, what type of funeral you want, and who should be notified in the event of your death. A will may also contain directions from you as to what to do if you are seriously injured and left in a vegetative state, whether to try extraordinary methods to revive you should you suffer heart failure or some other illness, and other such instructions.
You may designate the executor and indicate who should take care of any minor children in your will. While the Thai courts are not bound by these, it is your best opportunity to inform them and your heirs of your desires and intent. Without such instructions, others will make these decisions after your death without the benefit of your intent.
Once you write a will, you should review it periodically to verify that it continues to represent your intentions. A will can be revised at any time before the testator’s death. To create a will, the testator must be at least fifteen years of age and have full mental capacity. Although a will remains valid under Thai law even after marriage or divorce, it should be reviewed and modified as necessary to reflect the change in circumstances.
In most cases a will must be in writing and is valid when the testator signs it in the presence of two witnesses who are over twenty years of age and are of full mental capacity. An oral will may be made in time of war and under special circumstances.
Foreigners should definitely have a written will. It can be a simple document written in either Thai or your native language or both.
Authenticated wills that have been written outside of Thailand may be accepted in Thai courts, but must be translated into Thai. Under Thai law, probate (the process of disposing of the deceased’s estate) and trusts do not exist. You may want to make a will to distribute your material goods in each country in which you have assets. In this case, each will need to address the assets that you own in the country only.
There is no inheritance or death tax in Thailand. However, if land or buildings and certain assets are to be transferred to beneficiaries, the Land Department will charge fees for the transfer.
Your funeral will be arranged by the person appointed as executor in your will, or a person who is specifically prearranged by you or your family.
Although making a will is a simple process, we suggest that you use a lawyer to assist you in drafting and executing your will in order to ensure that it complies with Thai law. Once a will is written, it should be kept in a safe place. This could be in your own possession, with someone you trust outside of Thailand, with a lawyer, or in a bank deposit box. You should also inform the appropriate people that you have a will and where it is located. If it is not known that you have a will, nobody will be able to execute your wishes.
Forms of Will
A Handwritten Will.
The testator may handwrite the will and date and sign it. Fingerprints are optional. The testator’s handwriting serves to authenticate this will, so attesting witnesses are not required. Although not required for handwritten will, it is recommended that witnesses be obtained.
A Regular Will
This kind of will is written in the form of a letter that can be handwritten or typed. It needs to be dated and the testator must sign it in the presence of two witnesses. If fingerprints are used as identification by the testator the will, there must be two additional witnesses to the fingerprints.
A Civil Documented Will
The testator must go to a district office (amphur) with two witnesses and make a request to an official to write a will. The government official will record the intent of the testator then red it back to him for verification. The testator signs the will and the witnesses then sign the document attesting to its authenticity. The official then signs and dates the will and adds a stamp or seal as evidence. The testator may sign to receive the will that has been recorded, or it can be left on file at the district office.
A Secret Will
The testator can handwrite the will or can ask someone else to write it, but the will must contain the signature of the testator. The will has to be sealed in an envelope with the signature of the testator on the envelope seal. The testator must take the sealed envelope to the district office with witnesses and confirm ownership of the will to the district officer. The district officer will record the statements and date the envelope with a government stamp. The testator and the witnesses sign their names on an appropriate place on the envelope. The will can be kept by the testator or left on file at the district office.
An Oral Will (Special Case)
This form of will is allowed in circumstances where other forms of a will cannot be made, such as when the testator is in great personal danger, is close to death, or during a war or an epidemic. The testator must declare intent in the presence of two witnesses. The two witnesses must appear in front of a district officer as soon as possible and relay the statement made by the testator to the officer with the date and location where the statement was made. The district officer will make a record of the statement made by the two witnesses and they sign their names in confirmation. If fingerprints of the two witnesses are to be recorded, there must be two additional witnesses to this process.
If you plan on making a will at a district office, you need to bring a land deed (if you have one), a Thai citizen’s ID card, and house registration, or a passport if you are a foreign national. The fees for making a will at the district office are minimal.
When There Is No Will or No Valid Will
If you die without a will or without a valid will, or if your will only disposes of part of your estate, the Civil and Commercial Code rules that your property will be distributed among your heirs. This method of distribution may differ from the laws of your home country and may not comport to your desires, which is why we recommend that you execute a will. There are two kinds of heirs: by blood and by marriage. ‘Blood heirs’ are:
1. Children – including adopted children and children who are born under unregistered marriage that are confirmed by the father – and grandchildren.
3. Brothers and sisters of the same parents (whole blood)
4. Half-brothers and sisters (sharing one parent)
6. Uncles and aunts
The six classes of heirs listed above will not all inherit your assets. This listing shows the sequence of who has rights of inheritance (in the case that those of higher recognition do not exist). However, heirs in classes 1 and 2 are entitled to inherit assets at the same time.
An heir who is a legally married spouse – the marriage needs to be registered – is entitled to inheritance as are blood heirs in classes 1 and 2. Legally married spouses who are separated still have rights to the estates:
· If you die with no surviving spouse, the blood heirs are entitled to receive the entire estate divided into equal shares. For example, if you die leaving no spouse but children. The children (and/or your parents) receive the entire estate in equal shares. If you die leaving no spouse or children but have surviving parents, the parents receive the entire estate in equal shares.
· In the case that there are no heirs or anyone designated to receive the assets, the assets become the property of the State or the general public.
In Thailand, it is very common to have an executor who manages the assets of the deceased and distributes them among the heirs. In the normal course, when there is a will, it will be presented to the will and the stated intent of the deceased. It may be presented to the court by a surviving spouse or other family member, an attorney for the deceased, the individual named in the will as the executor, or anyone else with an interest in the will or possession of it. Once legally approved, the court will issue letters of testamentary authorizing the executor to take appropriate action to identify and collect the assets of the deceased and to make distribution of those assets. The court will also issue such other instructions as necessary.
An executor is either named by the testator or assigned by the court. An executor assigned in your will must have the following qualifications:
· Be over twenty years of age.
· Have full mental capacity.
· Not be declared bankrupt by a court.
An executor assigned by court order will be one of the following:
· A blood heir or a person stated in your will.
· Someone with an interest in your estate such as a spouse from an unregistered marriage.
· A prosecutor
Because the court will consider the qualifications of the executor to manage the assets of your estate, it is not necessary for the heirs to approve the executor. However, a blood heir or a person stated in the will, someone with an interest in the estate such as a spouse who did not register the marriage; or a prosecutor may person who objects must send a request to the court that has jurisdiction over the death before the distribution of assets.