A Last Will & Testament
A Last Will & Testament may be in any one of four forms, with varying
degrees of safety from challenge. First, what is known as a ‘holographic
will’ which means you wrote it out by hand and you make corrections
and verify them yourself.
Second: a Will made with a lawyer. Corrections on the first two
types of Wills, if evident, are points of attack by an opposing
lawyer.
Third: a Public Will, which is the strongest Will available in
Thailand. The form for this type of Will is in Thai, which needs
to be filled out, and cannot be attacked, and is available at the
District House at Banglamung, Amphur* office, and at Pattaya City
Hall, Amphur* Office and may cost 100 baht. (*Amphur is the same
as the Council Office in the UK, or City or County Clerk in the
USA.)
The fourth is none: you die intestate and your goods are distributed
by the state according to certain rules.
Thai rules
It is worth remembering that there is no second language in Thailand,
so if there is a question between an English translation and a Thai
translation, the Thai wins. Any language is accepted, but if translated
into Thai, the Thai version prevails. Bear in mind that only a will
written in Thai is technically admissible in a Thai court: the one
in English is for your convenience and information only.
Westerners are used to the concept of naming their own Executor
in their Will. In Thailand it is technically the court who appoints
your Executor: in your Will you name a “Personal Representative”
(who may be a relative, friend or your lawyer) who is usually accepted
by the court and appointed your Executor.
Your Executor is then charged with ensuring any taxes due are
paid, and the assets listed in your Will are distributed according
to your wishes – even to someone on the other side of the world!
The Executor may charge the estate a reasonable amount or fee for
time spent and for expenses incurred carrying out these duties;
but the testator will usually have set a reasonable limit on the
amount his Personal Representative may charge in toto.
While you can include property and other assets in another Country
in a Will made in Thailand, and this Will may be accepted in your
own country, the safest method is to have a Will in each country
covering your assets in each – and specifying that this Will covers
only those assets held in, for instance, the United Kingdom. Another
Will is similarly drawn up, specifying that this Will covers only
those assets held in Thailand. A third may cover Australia – and
so on. This may sound onerous, but is also sound tax planning.
Life Partnerships
There is no direct law on live-in partners: the closest law is
business partnership law, and has mostly to do with moveable property.
If you put property in your partner’s name, and you want it back
or part of it, it is very difficult.
The legal age in Thailand is variable depending on circumstances
from 18 through 20. If your partner is 21 or more, she or he is
past the age of requiring consent. But children 15 years of age
and younger engaged in sexual acts are considered by statute to
have been raped regardless of any consent given. At ages 16, 17
and 18, you can be sued by the parents.
If you want to separate from a partner, you will usually get
what is yours and she will get what is hers.
It is therefore wise to keep an inventory of the things you buy
for her, things she buys for you, and things you buy jointly. Houses
and property, in your Thai partner’s name, are theirs regardless
of who paid for the property. Use loan and rent agreements to retain
control of the property, or form a company.
Having children in an unmarried relationship is evidence of a
long-term relationship: it is therefore a partnership, and partnership
law governs.
Thai law is based on Community Property, so if you get married,
what you or she had before the marriage are your separate properties,
whereas what you acquired or earned after the marriage is joint
property, and divided equally in the event of divorce.
Pre-nuptial Agreements are legal in Thailand and will be upheld
by the Court.
Don’t forget that your Thai will should list (as an Appendix)
all your assets in Thailand, including bank accounts (with branch
address and account numbers); vehicles (if they’re in your own name)
including registration number, chassis & engine numbers; condominiums
and shares in companies owning property; jewellery and personal
possessions, including paintings and objects d’art. It saves squabbling
if you specify who inherits each item or the proceeds of liquidation
of that asset.
Having taken care of this most important aspect of estate planning,
you can relax and, as Mr. Spock would say, live long and prosper.
By Leslie Wright, Managing director of
Westminster Portfolio Services (Thailand) Ltd.
