INHERITANCE & SUCCESSION LAW’S IN THAILAND
What inheritance laws apply in Thailand?
The Civil Code governs inheritance (Succession) of the Civil and Commercial Code of Thailand applies to all inheritance issues related to a real property located in Thailand, regardless of the nationality or the domicile of its deceased owner.
If the owner of a real property lived and died outside Thailand and if a foreign court judgment is given in relation to his will and his real property located in Thailand, such judgment is not readily recognized in Thailand. His heir must file a new court case in Thailand and use such foreign judgment as evidence in the Thai Court to obtain a judgment of the Thai Court that will be recognized by the relevant parties, such as the Land Office and banks. A non-contested case in a Thai Court for recognition of a will confirmed by a foreign court judgment takes around 3 to 6 months to be final.
The Land Code of Thailand prohibits a foreigner from holding land ownership, with only a few exceptions. For example, if permission is given the Minister of Interior, a foreigner can own land for residential purpose up to one rai (1,600 square metres). But a foreigner can own condominium apartments, buildings, houses and any other structures built on land, subject to a few restrictions. A foreigner can also hold a long-term lease of land, up to 30 years.
A foreigner who inherits land as a statutory heir of a Thai national must dispose of the land within one year, unless a permission is given by the Interior Minister. Otherwise, the Director-General of the Land Department can dispose of the land and transfer the net proceeds from the disposal to the said statutory heir.
There is no reserved portion
A property owner is free to will his property. There is no concept of a reserved portion. However, if the property is a common property, the property will first be divided equally between the two spouses and each spouse can then freely will his or her portion.
When a person dies without a will, there are 6 classes of statutory heirs.
In a person died without a will, his estate will be inherited by his statutory heirs in 6 classes under the following order: (1) descendants; (2) parents; (3) brothers and sisters of full blood; (4) brothers and sisters of half blood; (5) grandfathers and grandmothers; and (6) uncles and aunts.
The surviving spouse is a statutory heir of the same class as the descendants. The surviving statutory heirs in the higher class exclude all the heirs in the lower classes, except for the parents, who enjoy rights in the same order as the descendants.
In Thailand, it is normal to make a will, especially amongst the wealthy. It is advisable for a foreigner to make a Thai will for his property located in Thailand because it is easier and faster to enforce a Thai will than enforcing a will made under a foreign law. If a will is made under a foreign law for a property in Thailand, to enforce such will in Thailand, the heir of the deceased must prove the foreign law to satisfy the Thai Court. If the will is contested by any other heir in the Thai Court, recognition and enforcement of the will can be complicated and difficult.
A will must be made as a written document signed by the testator and at least 2 witnesses presenting at the same time. A holograph will can also be made in hand writing of the testator and signed by the testator himself.
Succession
There are two scenarios to consider. When there is a valid will present and there is a lack of one. In Thailand, persons including foreigners are required to have a will that adheres to Thai law. You can draft a will in your home country but the will should conform to the laws of Thailand. As wills are contestable, it is always recommended for foreigners to draft a will in Thailand rather than leave the distribution of their Thai assets to a will drafted in their own country. The validity of a will can always be contested and if a will is deemed to be invalid, the law of intestacy (i.e. when there is a lack of a will) will come into effect. The probate courts in Thailand will then decide how the deceased assets are distributed pursuant to Thai Law. A will drafted in Thailand through a Thai law rm and witnessed by Thai nationals would stand a better chance of holding up against any contest than a will drafted in a foreign country. It is highly recommended that foreign nationals who are married to Thai nationals rely on the Thai legal system to draft their will rather than to solely depend on the drafted will back in their home country.
Intestate Succession in Thailand
In Thailand, where a person died without having executed a will to govern the distribution of his assets, the provisions of the Thai Civil and Commercial Code govern. Under the said law, the whole estate of the deceased person or the decedent will be distributed to his statutory heirs. Intestacy may also be partial, like when the testator made a will but nevertheless did not dispose of all his properties. In this case the remaining assets which were not disposed of by the will of the testator will be distributed to the statutory heir in accordance with Thai laws.
In the event that the law of intestacy (i.e. there is no will) comes into effect, there are six classes of statutory heirs. Their entitlement applies in the following order:
1. Children
2. Parents
3. Siblings
4. Half-siblings
5. Grandparents
6. Uncles and Aunties
The surviving spouse is a statutory heir, subject to the special provisions of Section 1635 of the Civil and Commercial Code of Thailand.
The rest three classes have more claim than the latter three. There are specic scenarios spelt out but I will only touch on the usual common scenarios.
Scenario 1 : If the deceased is survived by a spouse and children (class 1), the spouse will receive fty per cent of the property and the children will divide the remaining fty per cent equally.
Scenario 2 : If the deceased is survived by a spouse and parents (class 2) (i.e. no children), the spouse will receive fty per cent of the property and the parents will divide the remaining fty per cent equally.
Scenario 3 : If the deceased is survived by a spouse, parents (class 2) and siblings (class 3) (i.e. no children), the spouse will receive fty per cent of the property and the parents and siblings will divide the remaining fty per cent equally.
Scenario 4 : If the deceased is survived by a spouse, half-siblings (class 4), grandparents (class 5) and uncles and aunties (class 6), the spouse will receive two-thirds of the property and the half-siblings, grandparents and uncles and aunties will divide the remaining one-third equally.
Drafting a Will in Thailand
Persons including foreigners who have assets in Thailand will require a will that conforms to Thai law. Even if one has a will in his/her home country that lists their foreign assets, the will may not be valid in Thailand. A will that does not conform to Thai law will not be valid in Thailand and therefore a deceased’s estate would pass according the law of intestacy (without a will), rather than the specific instructions provided by the deceased in an invalid will. As a practical matter in litigation, wills become contested. A will drafted in Thailand by a Thai law firm, witnessed by Thai persons, will have a better chance of sustaining objections to its validity in a contested court case. In the case that no Thai will exists, under Thai inheritance law, the probate courts can decide how one’s assets are distributed upon death pursuant to Thai law.
Condominium Act (1979) which spells out how foreigners can own condominium titles in Thailand. Foreigners are allowed to buy freehold condominiums in Thailand so long as the total foreign ownership in a certain development does not exceed 49 per cent of the total aggregate oor space. When there is available foreign quota in a certain development, the foreigner must meet one of the following criteria to receive a freehold condominium title.
1. Any non-Thai permitted to permanently reside in the Kingdom under the Immigration Act
2. Any non-Thai permitted to enter the Kingdom under the Board of Investment Ac
3. A juristic person under Section 97 and 98 of the Land Code which was registered as a juristic person under Thai law.
4. Any non-Thai juristic person qualied under the 24 November 1972 Announcement of the Revolution Committee No. 281 and which has had a Board of Investment Certicate granted under the Board of Investment Act.
5. Any non-Thai individual or juristic person who has brought foreign currency into Thailand or who has withdrawn Thai Baht currency from their foreign resident Thai Baht account or who has withdrawn money from a foreign bank on deposit in Thailand. [Pursuant to Section 19 (5) of the Condominium Act, the amount of currency required under this paragraph (5) is dened as “not less than the price of the unit to be purchased”.]
Most foreign buyers will qualify to own a freehold condominium in Thailand based on criteria 5. I had previously written a blog post Buying property in Bangkok: Payment procedures and these procedures stem from fullling these particular criteria in the Condominium Act (1979).
Can Foreigners act as Statutory Heirs in Thailand?
Under Thai law, a statutory heir may be a non-Thai as well as a Thai citizen. The Thailand law makes no distinction as to the nationality of the heir’s right. There are special regulations, however, regarding inheritance of real estate by foreigners.
Foreigner’s Inheritance of Land in Thailand
If a foreigner inherits land, normally it will have to be transferred within one year to a Thai national. In the case that the land is not transferred, it may be subject to public auction.
Foreigner’s Inheritance of a Condominium in Thailand
There are two types of condominium units in Thailand: a) condo units that are within a foreign quota; and b) condo units that are not subject to foreign quotas, which are treated similarly to other real estate in Thailand. Condominiums within the foreign quota may be inherited by heirs and do not need to be sold or disposed of by foreign heirs.
Foreigner’s Inheritance of Leasehold Properties in Thailand
Pursuant to Thai law, leases are not inheritable and the lease is terminated at the death of the lessee. However, if the original lease contract specifies that the lease contract is to be inherited by one’s heirs, it is possible to transfer a lease agreement as part of one’s inheritance. Ownership over a house, separate from the land, can be transferred to the heirs separately at the local land office.
Inheritance: Property owned through a limited company
Thai inheritance law provides that the assets of a company maintained by a foreign director and shareholder are not automatically transferred to a statutory heir. The reason for this is because the assets belong to the company and not the individual foreign director or shareholder; the shares of the company are the assets belonging to the descendant’s estate rather than the company assets. If the deceased is the company director, a shareholders meeting must be called and a new director must be appointed. The shares in the company of the deceased must be transferred at the Ministry of Commerce.
Technically the monies were transferred into Thailand by the person who initially purchased the property and not by the beneciaries of the property. However, Section 1599 and Section 1600 of the Civil and Commercial Code of Thailand provides that an heir inherits “properties of every kind, as well as his rights, duties and liabilities, except those which by law or by their nature are purely personal to him”. The Land Department has also claried this matter on a few occasions and has the same interpretation. In other words, a non-Thai national heir inherits not only the condominium unit but under section 19(5) pursuant to section 1599 and section 1600 of the Civil and Commercial Code of Thailand, also inherits the right to own the property.
This legal non-Thai national heir is then legally required to register the property with the relevant Land office and present to the following documents to the land official at the office.
1. The deceased’s death certicate
2. The last will or any inheritance documents and any court order that appoints an administrator to the estate
3. A write up of the family tree of the deceased
4. Any other documents to support the inheritance claim
In the event that there is no court order, the registration of the inherited condominium will be subject to a 30-day public announcement requirement. During this period, challenges to the inheritance can be led.
Upon inheriting the property, the usual transfer fees and specific business taxes, if applicable, will have to be paid, similar to the sale and purchase of a property.
Land
Generally, foreigners are not allowed to own land. A foreigner may inherit land but more often than not, will not be able to register ownership of the land. Thus, the foreigner has to sell the land or transfer it to a Thai national within one year. If the land is not sold or transferred within a year, the Director of the Land Department would have the right to sell the land. For example, if you are a Singapore spouse is a Thai national and your spouse wills the land to you, you will still be able to inherit the land.
However, the land will most probably need to be sold or transferred to a Thai national within a year of inheriting it. A Thai national can will land to a foreign spouse. It is up to the foreign spouse to convince the authorities that he qualies to own the land. The inclusion of such a clause does not make a will
invalid.
Leases
There are cases whereby there are leases to be inherited. For example, certain condominiums and land are sold to foreigners on renewable 30-year leases. Upon the death of the lessee, the lease contract will be deemed null and void unless there are provisions within the lease agreement that the agreement can be inherited by one’s heirs. Do note that there are two important points to be included in the lease agreement if you would like the agreement to be passed on. Firstly, there must be a clause to allow the heir to inherit the right to renewal and secondly, there must be a clause to allow the heir to will the lease to future beneciaries. In such cases, it would be good to look for an experienced Thai lawyer who is well versed in this aspect of Thai law.
Taxation of Inheritance in Thailand
The Thai government recently passed the country’s rst inheritance-tax law and it was published in the Royal Gazette on the 5th of August 2015 and came into effect 180 days later on the 1st of February 2016.
Inheritance tax is levied on an inheritance valued more than THB 100 million. The tax is only levied on the amount above THB 100 million. Any inheritance less than THB 100 million is not subject to inheritance tax. The inheritance is taken as a total value of the whole inheritance and not on the assets individually. For example, if an individual inherits 20 condominiums valued at THB 10 million each, the total value will be THB 200 million and the inheritance tax will be levied. The average price of a 1 bedroom unit in central Bangkok is in the region of THB 4 million to THB 10 million. Thus, for most property investors with a few condominiums in Bangkok, this inheritance tax will never be levied on them.
The inheritance tax rate :
10% of the total value of the inheritance, for inheritor who is not a descendant or ascendant.
5% of the total value of the inheritance, for inheritor who is a descendant or ascendant.
The wealthy individuals, be it in Thailand or in other parts of the world, do try to circumvent paying inheritance taxes. The Thai government has some measures in place to ensure that this amount does not go untaxed. There are taxes for gifts for immovable properties. If an immovable property gift exceeds 20 million Baht per tax year, the excess amount would be subject to personal income tax. The personal income tax table is as follows.
Income (Baht)
|
Tax Rate
|
Cumulative Tax
|
0 - 1,50,000
|
0%
|
0
|
1,50,000 - 3,00,000
|
5%
|
7,500
|
3,00,001 - 5,00,000
|
10%
|
27,500
|
5,00,001 - 7,50,000
|
15%
|
65,000
|
7,50,001 - 10,00,000
|
20%
|
1,15,000
|
10,00,001 - 20,00,000
|
25%
|
3,65,000
|
20,00,001 - 50,00,000
|
30%
|
12,65,000
|
50,00,000 and above
|
35%
|
-------------
|
Gift / Personal Income Exemptions
Like most countries, to counter possible avoidance of inheritance tax, a gift tax was also introduced by way of amending the types of tax-exempt income in the Thai Revenue Code.
The types of income exempt from personal income tax include income derived from maintenance, income derived under moral obligation, inheritance, or a gift received in a ceremony or on other occasions in accordance with established custom.
The law will only exempt the following types of income from personal income tax:
The portion of inheritance income not exceeding 100 million Baht under Section 12 of the Inheritance Tax Act.
Income derived from the transfer of ownership or possessory right in an immovable property without consideration by the parent to a legitimate, non-adopted child, only for the portion not exceeding 20 million Baht per tax year.
Income derived from maintenance or a gift from ascendants, descendants or a spouse, only for the portion not exceeding 20 million Baht per tax year.
Income derived from maintenance under moral purposes, or a gift received in a ceremony or on occasions in accordance with custom and tradition from persons who are not ascendants, descendants or a spouse, only for the portion not exceeding 10 million Baht per tax year.
Income from gifts received for use for religious, educational or public purposes according to the rules and conditions under a ministerial regulation (yet to be issued).
Yes, I'm sure you can see how a bunch of rich folks will find loopholes here and pay diddly squat. At which point the threshold will no doubt be lowered to scoop up those on moderate incomes.
Thanks to Benjamas Kullakattimas, Head of Tax, KPMG Thailand, for providing the English interpretations of the above list.
But Aside From The Legal Jargon, What Happens to My Assets by Default When I Die in Thailand?
Single guys and unmarried guys in relationships might wonder what will become of their condo and Honda click should they bite the bullet. Well the hard and fast truth is, if you have assets in Thailand, you need to make a will.
You should have a will for both your assets in Thailand and any that you hold in your home country. You see, what happens when you die in Thailand is that a government officer requests a copy of a will either from the family or the lawyer of the deceased. So you can't expect the will filed in your home country to cover any property in Thailand. Failing to have a will could result in lengthy, costly probate.
Without a will in Thailand, these assets are the property of your Thai estate and would be subject to Thai inheritance tax if they totalled over the 100 million Baht mark.
For the married, your assets are distributed according to Thai law, and this means that family members are given priority. Half of the estate will automatically be passed to your wife and the rest divided first among children, then to surviving parents, then full-blood brothers and sisters, then half-blood brothers and sisters, then grandparents and finally aunts and uncles.
If you should die with no will, and there is no family or said heirs, then the state has the right to take all your property and sell it as it sees fit. Gasp!
If you have accumulated assets in Thailand that you don't want to end up in the state's purse, then you really should consider making a will in your home country that includes these assets so that your relatives are aware of what you have and who is heir to them, and of course filing a will in Thailand too.
In order to register a will in Thailand and have an executor appointed, you must go to a provincial court. The executor will then get the court’s authority to dispose of the person’s assets in accord with their will. Of course a Thai lawyer can arrange this for you.
Will I Inherit My Wife's Fortune?
If she leaves it to you in her will, then yes. But please do read below about land and property. If she doesn't leave a will, you better get in line because, see that list below, that's you at #7 - bottom of the queue:
In Thailand there are 6 classes of statutory heirs and they are entitled to inherit in the following order :
Descendants
Parents
Brothers and sisters of full blood
Brothers and sisters of half blood
Grandparents
Uncles and aunts
The surviving spouse is a statutory heir, subject to the special provisions of Section 1635 Civil and Commercial Code.
You wife might choose to leave you money, gold, or perhaps her car. But if you expect to inherit these things you'd do well to encourage her to make a will that stipulates exactly what she wants to leave you, and for her to instruct her family of her wishes so there is no dispute.
Family disputes are common in this regard. If family members seize assets after a death, the process for a foreigner getting them back, even with the presence of a will, is a very difficult one. This is certainly something you should think about if you have a child together, because no doubt you'll want your child to inherit your wife's assets.
Can I Inherit My Wife's Land?
Believe it or not, you can inherit your wife's land. If she doesn't make a will that says otherwise, it will be passed to you. But there is a catch, and a pretty huge one at that:
You cannot register ownership of the land because you will not be given permission. You must dispose of the land within a reasonable period (up to 1 year) to a Thai national. If you fail to dispose of the land, the Director-General of the Land Department is authorised to dispose of the land and retain a fee of 5% of the sale price before any deductions or taxes.
What About Inheriting My Wife's Condo?
It's almost the same as the deal with land: A foreigner who acquires a condominium unit by inheritance, either as statutory heir or inheritor under will, shall acquire ownership, however, unless the foreigner qualifies for ownership under Section 19 of the Condominium Act, it is required by law that the foreigner shall dispose of the unit within 1 year from the date of acquisition.
A registered will as a 'secret document'
Thai nationals and other Thai speaking nationals with residency in Thailand can make last will according to section 1660 'as a secret document' registered with the local municipality.
Section 1660: A will may be made by a secret document, that is to say:
the testator must sign his name on the document;
he must close up the document and sign his name across the place of closure;
he must procure the closed document before the Kromakarn Amphoe and at least two other persons as witnesses and declare to all of them that it contains his testamentary disposition; and if the testator has not written with his own hand the whole text of the document he must state the name and domicile of the writer;
after the Kromakarn Amphoe has noted down upon the cover of the document the declaration of the testator and the date of the production and has affixed his seal thereupon, the Kromakarn Amphoe, the testator and the witnesses must sign their names thereon.
A registered will as a 'registered public document'
A will may also be made as a registered document (section 1658) with the local municipality (i.e. the Kromakarn Amphoe). The testators states his wishes to the assigned government official (competent authority) who writes down the testators last will in Thai script. The official must again read it to the testator (in Thai language) who then must sign the last will drawn up by the public officer.
Section 165. A will may be made by public document, that is to say:
the testator must declare to the Kromakarn Amphoe before at least two other persons as witness present at the same time what dispositions he wishes to be included in this will;
the Kromakarn Amphoe must note down such declaration of the testator and read it to the latter and to the witnesses;
the testator and the witnesses must sign their names after having ascertained that the statement noted down by the Kromakarn Amphoe corresponds with the declaration made by the testator;
the statement noted down by the Kromakarn Amphoe shall be dated and signed by such official who shall certify under his hand and seal that the will has been made in compliance with the foregoing Subsections 1 to 3.
No erasure, addition or other alternation in such will is valid unless signed by the testator, the witness and the Kromakarn Amphoe.
A private will as a 'unregistered written document'
The most common will in Thailand is a written and witnessed last will and testament according to section 1656 of the Civil and Commercial Code (template download).
Section 1656: A will may be made in the following form, that is to say, it must be in writing, dated at the time of making, dated at the time of making of the will and signed by the testator before at least two witnesses present at the same time who shall then and there sign their names certifying the signature of the testator. No erasure, addition or other alteration is valid unless made in the same form as prescribed by this section.
What to include in the will?
You want to make a specific or general will but are not sure where to start? The list below includes the kind of information you need to consider.
Personal information of the testator
Full name, date of birth, address, nationality, passport number of the testator;
Details of the heirs, full names, dates of birth, address, nationality, substitutes in case the heir(s) predecease the testator;
Executor of the will (the job of an executor is to administer your estate);
Names and addresses of executors (most married people choose their spouse as the executor if they are giving their entire estate to their spouse). You can appoint one executor and a substitute executor if the executor predecease, however they must be appointed by the court;
Witnesses of the will;
Full name and details of ID-card or passport of the witnesses;
Possible funeral requirements (what should happen to your body when you die).
------------------------------------------
No comments:
Post a Comment