Estate planning and death are not fun topics. However, failing to take care of this while you’re alive can leave your loved ones to sort through major issues after your death. For expats, having a will made in Thailand is the best way to ensure your estate is dispersed and final wishes are carried out.
Of course, having lived in Thailand for more than a decade, I know exactly what many of you are thinking, “Do expats really need a will made in Thailand?”
It depends. I recently spoke with Khun Sirichot Chaiyachot, Co-Founder and Partner at LAFS Legal Company Limited. He noted that while some expats do need a will made in Thailand, others may not.
“If you are broke or don’t have a lot of assets in Thailand, you may not need any estate planning. But if you have some properties in the Kingdom or money in a Thai bank account, you will want to have a will drafted. If you don’t, no one will know what you have and how much you have,” Khun Sirichot details. “Should you pass without a will, it will be unfortunate for your family as it will be difficult for them to inherit your possessions.”
What if you already have a will made elsewhere?
One common mistake many expats in Thailand make is assuming a will drafted overseas will be enforceable outside that country’s borders.
“In theory, you should be okay to use the will you draft overseas in Thailand. The thing is that you have to prove such a will is enforceable, according to your law. The beneficiary will need to go through probate courts in the country the will is made to prove it is legitimate,” Khun Sirichot explains.
He continues, “Secondly, a will drafted under the laws of other countries may setup a trust to manage the estate. In Thailand, a trust company or a third party cannot be the executor of a will. That is another reason it may be better to have a will made in Thailand covering local assets.”
Expats will also run into issues should they try to include assets outside of Thailand in a locally-made will.
“I do not recommend you draft a will in Thailand and expect it to be used worldwide, especially if you are not a Thai citizen,” Khun Sirichot notes.
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Wills & Thai partners
Expats with a Thai partner should consider having a will drafted for each person. This is especially important if you are unmarried or haven’t registered your marriage in Thailand.
“If you are a person who did not register your marriage to a Thai national in Thailand, they will have 100 percent custody of any children. Those with a marriage registered in Thailand have 50/50 custody. In that case, when one parent passes away, the living parent will take care of the child,” Khun Sirichot states. “If you both pass away at the same time and neither of you has a will, who takes care of your children is uncertain. Putting this in a will is important as it allows you to choose the person(s) who receive custody.”
There are also scenarios where a foreign partner has purchased things, such as property, under their Thai spouse’s name and end up losing these because there was no will made.
“I have experience with cases where a foreign husband will purchase everything under their wife’s name. Then the wife will pass away without a will and the husband does not receive his fair share of the estate and has to split it with the family. It can be especially problematic if the woman has children from a previous marriage who are also entitled as heirs of the estate,” Khun Sirichot reports.
He adds, “I would say it is good to have your Thai partner make a will and leave the living person everything he or she has purchased so they don’t lose it. If you don’t, there is no real means to obtain all those assets which must be distributed evenly.”
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The basics of a Thai Will
Expats with assets here need to have a will made in Thailand and should also consider requesting their spouse make one as well in order to avoid potential issues. But what exactly does that document look like?
“There are five types of wills in Thailand, but the most common form is the ordinary will, a typed document the client signs before two Thai witnesses. The witnesses should be adults of legal age who are not a beneficiary. If you don’t follow those terms, the will can be deemed void,” Khun Sirichot points out. “There is a format with specific wordings your will must follow to be considered enforceable. Beyond that, there is no need to have the document notarized or anything similar to be deemed legal. The language can be English with a Thai translation for the court.”
There are a number of last will and testament boilerplate templates available on the internet and some people may try to write one on their own. Unfortunately, a DIY will isn’t always accepted in Thailand.
“Some people will say you can write a will on your own, but it doesn’t always work like that. I’ve seen many cases where a person drafts a will on their own and it isn’t enforceable in Thailand,” Khun Sirichot says. “I have also seen other cases where an individual gets a non-legal third party, such as an accounting company, to create a will and it doesn’t work.”
The same thing goes for adjusting your will. You can’t take out a pen and start changing things whenever you feel like it.
“You should consider changing your will when you want to change the beneficiaries, executor or wish to remove someone from it. In case you really want to make an adjustment, you should do it properly. You cannot just use a pen to strike out something and update it. This can make that section of the will or, in some cases, the entire document void. Be careful when doing this,” Khun Sirichot notes.
Expats creating a will in Thailand must select an executor to carry out their wishes. Khun Sirichot recommends appointing a beneficiary to this role as opposed to a third party, like a lawyer, because they will not know when the client passes away or what assets the deceased will have.
It is important to note that the executor will need to be in Thailand to carry out those duties, although the process isn’t overly time consuming in most cases and you are free to appoint whom you see fit.
“The executor of a will can be either a Thai or foreign national. If you appoint the latter, they will need to come to Thailand where the judge will ask a few questions to ensure they are capable of managing the estate. If approved, the executor will receive a court order that allows them to go to the relevant authorities to transfer and distribute the estate according to the will,” Khun Sirichot explains. “If there is no dispute between heirs, it will take a few months to distribute the assets listed on the will. Normally no more than six months in Thailand.”
A lot of people are curious about inheritance tax. It is fairly straightforward in Thailand and won’t be an issue unless a person inherits more than THB100 million.
“There is an inheritance tax in Thailand. However, you won’t have to pay anything unless you inherit more than THB100 million. In cases it is higher than that total, you only pay the amount above THB100 million. Tax rates depend on the inheritor’s relationship with the deceased,” Khun Sirichot reports.
We previously mentioned that you shouldn’t try to make a Thai will yourself. Instead, you’re better served hiring a lawyer since you will for sure know your loved ones will have peace of mind during a difficult time.
“A lawyer knows how to draft the will which the court is going to accept without any problems,” Khun Sirichot says. “Paying a lawyer to do this is worth it since it means your family will have peace of mind after you pass. I once heard a saying, ‘If you hate your family, don’t leave a will’ because they will fight each other for a share of the estate.”
Do expats really need a will made in Thailand?
So, do expats really need a will made in Thailand? If you have property, cash, children or any combination of the three here, the answer is yes. Those without any significant assets can probably get away without one, however.
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