Full legal assistance to take possession of an inheritance in Thailand
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(estract of an article of Dr. CF Ciambrelli)
The importance of being provident (prevenant)... and to make a last will
As we all know, sooner or later "you" will die.
I don't know what will become of our souls, all I know is what will become of earthly possessions here in Thailand and how difficult it could be for our heirs to receive them after our "departure", especially if they live abroad.
Thai law grants us wide powers of discretion as to how to dispose of our assets. Provided that we have drawn up (rédigé) a testament (better if done with the help of an expert), we can freely dispose of our assets with the sole exception of the goods acquired after the marriage. In fact, if we are married, half of the patrimony acquired after marriage technically already belongs to the spouse and will be automatically assigned to her or him (See our article published January 2014, L'Indicateur N.2, also available online).
The remaining half of the patrimony if you are married, or the totality of it if you are single or divorced, can be bequeathed to anybody without restrictions. In other words, you can "disinherit" your children or anybody else and freely decide to whom to bequeath your properties without any limits.
Although it is true that Thai law gives us these wide powers of discretion which would be unthinkable in the majority of Western countries, when it comes to actually taking possession of an inheritance, things are not as easy as they might appear. If we truly care about our loved ones who will survive us, we had best be extremely prudent and provident "before" our passing.
For those residing in Thailand the procedure to acquire an inheritance can be relatively simple, especially if you have made a proper last will. A good lawyer can have everything sorted out for a moderate fee. Unfortunately the legal process becomes very difficult if your heirs live abroad, and even worse if you haven't drawn up a last will.
The first stumbling block is that to dispose of an inheritance in Thailand either the heir(s) themselves or another party must have been previously nominated as "Executor" by a local tribunal.
The procedure to obtain such nomination might present many difficulties and a well drawn up testament with the explicit nomination of the "Executor" will greatly help.
The procedure to obtain the nomination as Executor, which I repeat is essential to take possession of the assets of the deceased, requires three steps :
1) First step: A request to the court upon the presentation of a considerable number of documents, including the death certificate and the proves that the petitioner(s) is (are) the legitimate heir(s), or the legitimate appointed executor, all properly and legally translated in Thai.
To present the petition the physical presence of the petitioner (highly advisable) or an official proxy made by a notary, translated in Thai and verified by the embassy (Thai embassy abroad or foreign embassy in Thailand) is strictly required.
The heirs can also choose to appoint as Executor a lawyer or somebody of their absolute trust, assuming undeniable risks (the Executor can literally dispose of all the inheritance) and accepting to pay higher legal expenses.
2) Second step : Provided that the petitioner has presented all the required documentation, the hearing will normally take place in 60/90 days from the presentation of the request and would strictly require (!) the physical presence of the appointed Executor.
3) Third step: Achievement of final sentence.
The first sentence will be valid and accepted by private and public institutions (as land departments, banks, juristic persons etc.) only if jointly presented with the "declaration of final sentence". The court will release such a document 30 days after the first sentence (second step) provided that no appeals have been in the meantime presented by third parts.
Please note that, even though the law permits the possibility to appoint "anybody" as Executor, in reality, if the surname of the Executor is not the same as that of the legitimate heir, things can become terribly difficult. On the other hand, unless the heirs have in full trust appointed somebody residing in Thailand as Executor, it will be necessary for the Executor to remain in Thailand several months or to come here at least two times: one time to be appointed Executor by the court, one to get the final sentence and to finally take possession of the inheritance.
Unfortunately, this last, essential step is not as easy as you might think unless the "beloved departed" have been very provident as we will explain in the second part of this article.
The prerequisite to take possession of an inheritance in Thailand is to obtain a nomination as "Executor" from the competent court and the declaration of "Final sentence" (jugement définitif). The document, can be requested only 30 days after the first sentence.
Unfortunately, even though the "Final Sentence Certificate" is essential it might be not enough and more documents are requested to complete the procedures. If your heirs reside in Thailand, having plenty of time and being familiar with the local rhythm and ways of doing things, it won't be a big problem. Things drastically change if your heirs do not live in Thailand, haven't much time to wait and maybe they have come on purpose for a last salute and to quickly unravel the knot of the inheritance.
In such, very common case, here follows some advice that can really help anybody inheriting in Thailand :
It is essential to:
- ASK the court to give back all the original documentation that the appointed executor has previously presented to obtain the nomination.
- Make several copies and always keep the originals for they will be requested everywhere (Banks, Land Department, etc.), no matter that one has been already officially declared Executor by a Court of Justice.
HOW TO GET THE BANK DEPOSIT FUNDS
- The minimum time to withdraw the funds from a bank in case of inheritance, provided that all requested documents have been presented, can be a week or more. In case of fixED accounts or stock market investmentS the time necessary to cash the sum invested can reach a month or longer.
Do not forget that the heirs are legally entitled to export the money inherited only if they can show a clear proof that the de cuius, (the deceased) had previously transferred it from abroad (TT3 form).
HOW TO MANAGE CONDOMINIUM PROPERTIES
In case of inheritance of a condominium registered in the name of the deceased, the heirs will be entitled to transfer it to their own name or to sell it, but they will be allowed to transfer abroad only the amount corresponding to the Land Department's estimateD sale-price as shown in the official and registered sale-contract, not one baht more.
Furthermore, in case of inheritance of real estate, remember that if you transfer the property (title deed) TO your own name then resell it before 5 years, you will pay an extra, very heavy tax which can reach 10% of the estimated value.
Also remember that to transfer the property of a condominium unit, it is necessary to present an "non debt certificate" officially issued by the condominium's juristic person manager. If the buyer is a foreigner, he must provide the documentation (TT3) that the money corresponding to the price of the sale came from abroad.
WHAT HAPPENS TO LAND AND HOUSES
- If the de cuius owned houses or land, and HAD registered them in the name of a company, the heirs will inherit only the shares that were officially registered in the name of the de cuius and this opens a very delicate issue and a real conandrum.
What will be of the property? As you possibly know, according to the law, a foreigner can not own more then 49% of the shares of a Thai company. The remaining majority of 51% must be in Thai names. As we all know many foreign nationals "buy" houses and land "in company names" using Thai nominees as share holders. In such a case, unless the deceased had wisely provided to name one of his heirs as co-director, the company's share holders are supposed to call a general meeting and ARE entitled to appoint a new director. This will open the door to a dangerous and very uncertain situation. The best way to protect our interests and the ones of our heirs would therefore be to appoint a co-director among the heirs or to stipulate a long term lease specifying in a last will and in the lease contract that the right will be transferred to his/her heirs.
Conclusions: remember that to get an inheritance, in Thailand, is not as easy as it used to be.
Shouting and demanding your rights won't help you at all and in most cases the demands of the various authorities FOR double checking are very justified.
I have personally assisted to incredible cases of stealing of land, condos and houses (which will be the subject of our next article...don't miss it!) and the authorities' extra prudence should be welcomed and appreciated rather then criticized. If you care for your heirs try being provident...until you can.