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Monday, September 26, 2022

How to Make a Will in Thailand – Your Last Testament

Being a young, single man living in Thailand, I never worried about making a Will. It seemed like something for “old people”.

But getting married and having a child meant that I needed to consider someone else’s future and how their lives would be impacted if I passed away.

Moreover, it isn’t just people over 60, 70  or 80 who die. Every year, young people’s lives are tragically taken in accidents, be that in Thailand or elsewhere.

If you’re looking to make a Will in Thailand and sensibly have your affairs in order, this post will walk you through the process and all the points you need to consider.

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Life by the beach doesn’t last forever.

Contents:

Why You Need a Will

Dying Without a Will

Your Heir’s Responsibilities

Writing Your Own Will

Funeral Requests

Inheritance Tax

Writing a Living Will

Summary

Why You Need a Will in Thailand

If you don’t have a Will in Thailand, it will make it very difficult for your loved ones to make a claim on your assets after you pass away.

The process can be long and drawn out, so much so that many extended family members don’t bother or give up, particularly if they are living outside of Thailand.

Having a Will makes it easy on your loved ones.

Generally speaking, you only need a Will in Thailand if you fall into one of the following categories:

  • You spend most of the year in Thailand
  • You are retired in Thailand
  • You are married to a Thai national / you have children in Thailand
  • You own property or assets in Thailand

What Happens When You Die Without a Will

The law in Thailand is very clear about what happens if a person dies without a Will.

Section 1635 of the Thai Civil and Commercial Code stipulates that your spouse will be entitled to half your marital assets, with the remaining property divided between the spouse and children or statutory heirs under Section 1629.

If you don’t have children, the remaining property would go to any surviving parents. If your parents are not alive, or you do not have parents, then the remaining property would be divided among your siblings.

If you have no siblings, then the next in line would be step brothers and sisters. They are followed by grandparents, and then aunts and uncles.

If it transpires that the heir is a minor or of unsound mind, or a person incapable of managing his or her own affairs, as set out in the Thai Commercial and Civil Code, then the court will appoint a guardian or curator.

If you have no Will and no surviving relatives, your estate will go to the state.

What Your Heirs Have to do When You Die

Whether or not you have a Will, your heirs, most likely your relatives, will need to hire a lawyer and go to the probate court. If they are living overseas, they will need to travel to Thailand to complete the process.

This is why it is very important that you have a Will, otherwise your relatives may be required to travel back and forth to Thailand to sort out your affairs.

Writing Your Own Will in Thailand

You can write your own will but bear in mind that it must be compliant with Thai regulations. You will also want to have the Will translated into Thai, so that the courts understand it.

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A Will is valid in your native language, but it’s important to have the translation.

The Will must be witnessed by two people, and can be registered at your local district office.

Doing so means it is on file and easily accessible in the event of your death. The filed version should be in Thai.

The benefit of a law firm is ensuring that no stone is left unturned.

Those who specialize in Wills know the mistakes people make and how to avoid them. They also know what a good Will looks like and what is acceptable to the courts.

If, for example, you were to accidentally leave out a part of your estate, or not properly stipulate the conditions of a certain section of the Will, it would cause problems for your relatives and have to be referred to the probate court.

What Documents You’ll Need

To prepare your Will, you will need a list of beneficiaries and the following information:

  • Name
  • Phone number
  • Address (country of residence included)
  • Email

In addition, you will need the identification of the executor(s) of your Will. An executor is someone who is named in the Will as responsible for dealing with the estate.

You will also need to make a list of your assets, unless you are giving your entire estate to one person. But it still makes sense to make a list, just so you can visualize exactly what you have and who it’s going to.

If your assets are to be divided among multiple beneficiaries, then you will need a list to be included in the Will.

You will also need your bank details, so the Will states where your money (cash) is held.

Witnesses

Anyone other than a beneficiary can witness a Will. Of course the person must be an adult (not a minor), and you must be present when they sign. A witness cannot be blind, deaf, or mute, or legally considered to be of unsound mind.

Note that a beneficiary can be listed as an executor but cannot witness the Will.

Other than the beneficiaries, anyone can be a witness to the Will as long as they are adults and there when you sign. The beneficiary in the Will can be appointed as the executor or the administrator, but cannot be a witness of the Will.

Choosing an Executor

Of course, the key factor in choosing an executor is to choose someone you trust, but it is a good idea to choose an executor who lives in Thailand, and preferably one who speaks Thai or is close friends with someone who speaks Thai.

You’d also do well to make sure the person is younger than you, or at least of similar age, otherwise they might die before you do and you will have to amend the Will.

You can have more than one executor; so feel free to choose two trustworthy people.

If you do not appoint an executor, an administrator will be appointed by the Thai Probate Court to manage and administer your estate.

What to Include in Your Will

In order for your beneficiaries to receive your assets, you’ll have to list those assets in your will. Assets can be anything from real estate, investments, money in banks, and even vehicles.

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1. Local Assets

Local assets are the assets you have in Thailand, not those in any other country. This might include your condo, car or motorbike, and gold jewelry.

2. Real Estate

Real estate refers to a condo, house, or land.

Note that if your condo or house has a lease, this terminates upon your passing.

If you have freehold, the property can be passed to your heirs. However, if you do own your condo under Section 19 of the Condominium Act, the heir must sell the condo within one year.

You can also pass on land to an heir, but again it must be sold within a year.

If a piece of land is unsold after a year, the Director-General of the Land Department will sell the land and charge a fee of 5% of the sale price, before deductions or taxes.

Shares in a Thai Company

Shares in a Thai company are not passed to heirs upon your death. The assets of a foreign director belong to the company and not the individual.

In the event of your death, a shareholders meeting must be called and a new director appointed.  The shares are then transferred to the new director at the Ministry of Commerce.

Bank Accounts

If you have a joint account with your spouse, the account will be transferred over to your spouse upon your death.

If the account is not joint, the bank will freeze it when you pass away.

If you want your spouse to have immediate access to your money if you die, you should consider making the account joint while you are alive.

Overseas Assets

You will need a separate Will for overseas assets because the Thai court is only concerned with the assets you have in Thailand.

You should file a Will for your overseas assets in your home country, or in the country they are in, depending on the legal status of those assets in the given territory.

Funeral Requests

This is a common feature of a Will, whereby you specify arrangements for your Will.

The executor or administrator will arrange your funeral, unless you specify a person in your Will.

If there is no executor, then the person who receives the greatest portion of your estate, either by Will or statutory inheritance, becomes responsible for arranging your funeral.

Inheritance Tax

This is a very important area and no doubt one you’ll be concerned about.

In Thailand, inheritance tax is only paid on an estate valued at over 100 million Baht.

Ascendants pay 5% tax, and descendants and others pay 10%. The tax is applied to both Thai nationals and foreign nationals.

Interestingly, surviving spouses are not liable for inheritance tax.

Note that heirs under 20 years of age are subject to inheritance tax, but their parents must file a tax return on their behalf.

I have a comprehensive post on Inheritance Tax here.

Writing a Living Will (Advance Decision to Refuse Treatment)

A Living Will, or Advance Decision to Refuse Treatment to use it’s legal name, enables you to stipulate any medical treatments that you don’t want, in case you become unable to make or communicate decisions for yourself.

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It will only be used if you can’t make or communicate a decision for yourself. A Living Will should be specific and clear on what actions you don’t want medical staff to take, such as pain management, ventilation, tube feeding, etc.

The Living Will comes into effect if you are unable to communicate your wishes verbally or physical and you are medically deemed to be in a terminal state (facing end of life).

You can have one professionally drawn up or create one from an online template. You’ll need the Living Will in English and Thai to ensure medical professionals fully understand your wishes.

If you’re from the US, you can get a Living Will template here.

If you’re from the UK, go here.

For other countries, a simple Google search will find you a template.

1. Power of Attorney

Once drafted, you will give someone the power to execute your wishes. This could be a family member, or even a health care representative.

The Living Will requires your signature, the signature of the person you assign as your representative, and two witnesses. It does not require notarization

If you are receiving ongoing treatment at a hospital, you can ask them if it is possible to file the Will with them, though most hospitals don’t do this as standard. They will give you the life-saving treatment you require until they are made aware of a Living Will.

You should give a copy to your health care representative, and any close family members – so they are aware of your wishes.

2. Choosing a Health Care Representative

It’s worth noting that due to Buddhist beliefs, many Thai people may take issue with agreeing to oversee your refusal for treatment. This may include your spouse or family members.

It is therefore imperative that you clearly communicate your wishes and explain your intentions for end of life care. You will need to find someone who is comfortable with seeing those wishes through and isn’t going to be burdened by guilt going forward – due to spiritual beliefs.

3. Thai Law & End of Life Care

Under the National Health Care Act 2007, a Living Will is accepted and a patient has the right to refuse treatment if they are facing terminal illness and an incapacity to communicate.

However, you must be of sound mind when writing the document and considered “legally fit”.

Note that euthanasia is illegal in Thailand.

Summary

The reality is that every adult with notable assets should have a Will. A Living Will is optional, depending on your opinions about end of life care.

Having initially set out to make a Will myself, I quickly realized there was a huge amount to consider and felt pretty overwhelmed when I started to write.

It’s really not that costly to have a law firm do it for you, and it certainly takes the guess work out of the process.

Either way, don’t put it off. Get it done and make things easy on your loved ones when it’s your turn to pass.

——

If you haven’t yet made a Will, I’m guessing you probably haven’t got life insurance cover either?

If not…

+ Click here to read about Life Insurance

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Last Updated on September 1, 2020

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