Thai Will by a falang.valid or not?

Post by **nkstan** » April 6, 2016, 9:53 pm

Since I am divorced and my step-daughter is now married and has moved to China,then after her USA visa is approved she will move there.I have no connection to Thailand.According to a legal site,I can not have a Thai will !

Making a last will in Thailand as a foreigner
Foreigners closely connected with Thailand (having their habitual residence in Thailand and for example married to a Thai national) can make a will in Thailand under Thai law for their assets and could designate the law of Thailand to govern the succession of their (Thailand) estate. The 'Thai Last Will' could also include a limited jurisdiction clause, limiting the effect of the will specifically to assets located in Thailand. If you make a Thai will you must ensure that your foreign will excludes Thailand and that any subsequent last will you make in another country does not supersede the testamentary dispositions under your Thai will.
http://www.thailandlawonline.com/thai-f ... n-thailand
Foreigners who are not closely connected to Thailand, other than for example owning a condo (owning real property), cannot make a Thai will.

Post by **Bonanza** » April 7, 2016, 2:57 am

Not sure that this would apply to UK citizens as the disposal of your 'estate' upon death depends upon your 'domicile' and not residential status at the time. Unless you have clearly established that your domicile is outside of the UK (not easy) than your estate is governed by UK probate.

So, whereas Thailand might let your executors deal with assets in Thailand and UK, you will have to go through UK probate to access assets in UK, and if these assets exceed the exempt limit (currently £325,000) you will pay 40% tax on those excess assets.

If you are married at the time of your death you can pass all these assets to your spouse tax free.

If you have this type of money/assets in UK get proper legal advice from a UK inheritance tax lawyer.

Post by **arjay** » April 7, 2016, 3:52 am

BkkStan is of US domicile and I believe still a US citizen.

(I would think that US laws will dictate whether his assets outside the US are under US jurisdiction).

Post by **mickojak** » April 7, 2016, 8:01 am

This is an interesting topic and I am personally looking at it for myself.
I will make a will in Australia leaving my assets to my Thai wife, then child in that order.
I won't bother about a will in Thailand as my assets will go directly to her, or maybe I should make one to confirm my burial decision, (Thailand), to save any issues with family in Australia. I would have to put this in my Australian will too. Maybe that's all I need, then my wife can take care of it as she sees fit.

OP's situation is different. It sounds like he wants to leave his assets to his Thai daughter who will be living abroad.

arjay wrote:(I would think that US laws will dictate whether his assets outside the US are under US jurisdiction).

This sounds fine on paper, but how much will it cost a foreigner to come to Thailand and assume/fight for those assets and the validity of the US will there?

Maybe easier to put daughters Thai name as joint owner of Thai assets, then they go directly to her as long as she still holds her citizenship?????

Looking forward to more comments on this.
Mick

Post by **wazza** » April 7, 2016, 10:05 am

I am single and have a Thai will, distributing my assets and an International will for Australian assets.

My Thai Lawyer ( Expat influenced ) and Australian Lawyer , agree this is the best way.

I was advised that neither have jurisdiction in each others country.

Post by **mickojak** » April 7, 2016, 11:16 am

Wazza
Sounds like what I was thinking.
W

wazza wrote: an International will for Australian assets.

azza,
Which country did you set that one up in?
Mick

Post by **wazza** » April 7, 2016, 12:58 pm

mickojak wrote:Wazza
Sounds like what I was thinking.
W
wazza wrote: an International will for Australian assets.
azza,
Which country did you set that one up in?
Mick

Australia with an Australian Lawyer, who acknowledged the issue with Thai assets and said that will solve the issue of him having to appoint a local Thai lawyer to then act on his behalf for Thai held assets. Which will be messy and legally challenging.

Post by **mickojak** » April 7, 2016, 1:45 pm

wazza wrote:Which will be messy and legally challenging.

Absolutely.
That's the way to go.
Thanks
Mick

Post by **wallylee** » April 7, 2016, 2:25 pm

Hi ..my mate did similar..got his will drawn up in Australia..by a Lawyer..2 years ago..he passed away 6 months ago..
The lawyer had account numbers for his partner in Thailand..Swift number, Bank acc number..
After he passed away, maybe 3 weeks, lawyer transferred the money to Thailand..took 2 days..much simpler for all concerned doing it that way in Australia..
The cost of the will was $300..
In total..sell house Aussie, lawyer has to transfer house and land to his name to sell, took a month to do that..
sort out all the Super..goods and chattels.cars, bikes.the people were all named to where everything went to..no fuss or arguments.
A lot of work for a private Executor..so a lawyer handles all..
Cost was $14.000. total..it was a lot of work though..comes out of estate..

Post by **maaka** » April 7, 2016, 3:41 pm

may sound messy for Aussie lawyer to appoint Thai lawyer, but at least the Thai lawyer would be working for the Aussie lawyer..He would be the boss.. and it is probably better than The Oz lawyer flying back and forth with no idea of the lingo and culture etc etc...

me, I would have as many assets as possible in the good womans / kids name before dying, so that things are easier to handle..

its getting my partner to get a Thai Will herself, so as to protect her assets for the boy, that is slow in coming...all very good you being all set, but if your partner has not covered herself, when her time comes, then all can go south..

Post by **arjay** » April 7, 2016, 8:29 pm

Be careful. Under UK law, a UK citizen's worldwide assets (wherever they may be) have to be declared for UK probate purposes and are potentially liable for taxes such as IHT (Inheritance Tax). Even though assets in Thailand for example, could be willed to a Thai under a Thai will. That could be the situation with citizens of other countries.

Post by **JohnG** » April 7, 2016, 10:03 pm

nkstan wrote:Since I am divorced and my step-daughter is now married and has moved to China,then after her USA visa is approved she will move there.I have no connection to Thailand.According to a legal site,I can not have a Thai will !

Making a last will in Thailand as a foreigner
Foreigners closely connected with Thailand (having their habitual residence in Thailand and for example married to a Thai national) can make a will in Thailand under Thai law for their assets and could designate the law of Thailand to govern the succession of their (Thailand) estate. The 'Thai Last Will' could also include a limited jurisdiction clause, limiting the effect of the will specifically to assets located in Thailand. If you make a Thai will you must ensure that your foreign will excludes Thailand and that any subsequent last will you make in another country does not supersede the testamentary dispositions under your Thai will.
http://www.thailandlawonline.com/thai-f ... n-thailand
Foreigners who are not closely connected to Thailand, other than for example owning a condo (owning real property), cannot make a Thai will.

VERY misleading.

If a "Thai Will" refers to a will which is registered and lodged with the tessabaan for a fee of some 20 baht, if I recall correctly, then completely correct.

If it refers to a will that is simply made in Thailand but meets whatever the legal requirement is wherever it applies (usually just two independent witnesses and an executor) where the assets are then incorrect. The only usual limitation is that an original will is usually required by each country granting probate (or the equivalent) so the simplest solution is either a separate will for assets in each country specifying the limited jurisdiction or one 'master' will with 'original copies' (identical originals) for each country.

As long as it meets the legal requirements of whatever country the property is in it doesn't matter where the will is made, so a will made in Thailand is valid in the UK just as one made in the UK is valid in Thailand - as long as the legal requirements are met.

Post by **Udon Map** » April 7, 2016, 10:18 pm

JohnG wrote:As long as it meets the legal requirements of whatever country the property is in it doesn't matter where the will is made, so a will made in Thailand is valid in the UK just as one made in the UK is valid in Thailand - as long as the legal requirements are met.

No, that's not how it works. It's not based on where the asset or property is located. If this were the case, someone with assets in multiple countries would have to do a separate will in each country, unless they all had identical validity requirements. Generally, a will is valid and enforceable if it was properly executed according to the laws then in effect at the time and in the place where it was executed.

Post by **JohnG** » April 7, 2016, 10:20 pm

arjay wrote:Be careful. Under UK law, a UK citizen's worldwide assets (wherever they may be) have to be declared for UK probate purposes and are potentially liable for taxes such as IHT (Inheritance Tax). Even though assets in Thailand for example, could be willed to a Thai under a Thai will. That could be the situation with citizens of other countries.

Not quite correct.

World-wide assets have to be declared for tax, not for probate.

Two totally different things - UK probate simply grants you authority over UK assets as an executor, nothing more. The probate courts aren't interested in tax liabilities.

HMRC can then freeze those UK assets, such as the sale of a house, until inheritance tax is paid by the executor.

Post by **JohnG** » April 8, 2016, 12:04 am

Udon Map wrote:
JohnG wrote:As long as it meets the legal requirements of whatever country the property is in it doesn't matter where the will is made, so a will made in Thailand is valid in the UK just as one made in the UK is valid in Thailand - as long as the legal requirements are met.
No, that's not how it works. It's not based on where the asset or property is located. If this were the case, someone with assets in multiple countries would have to do a separate will in each country, unless they all had identical validity requirements. Generally, a will is valid and enforceable if it was properly executed according to the laws then in effect at the time and in the place where it was executed.

Sorry, but I can assure from having been an executor and had to do exactly this on more than ome occasion that that's EXACTLY how it works.

If you have assets in more than one country / jurisdiction you need to obtain probate in every one of those countries / jurisdictions with a will that is legally valid in every one of those countries. Whether the will was legally valid where it was written is irrelevant unless the laws in
the countries are the same - a death-bed will may be valid in the country where it was made, for example, but that does NOT necessarily make it valid elsewhere.

Some laws apply internationally, for example marriage but even then there are a lot of exceptions, but probate from one country has no validity elsewhere.

If you live in Thailand, for example, and have assets in the UK, offshore, and in Thailand you will need to obtain approval in Thailand, probate in the UK, and probate separately in Jersey, Guernsey and / or the I of M, each with an original will valid in the country / jurisdiction where the property is.

It's possible to do it with one will but it's unnecessarily time consuming and drawn out as you normally need an original will for probate each time, so with only one will you can only apply in one country at a time, once the preceding country has granted probate, and after you have got the original will back which some countries are reluctant to agree to without a court order making it not only lengthy but expensive. With separate wills / original copies you can apply for probate in all countries / jurisdictions concurrently and you are also saved the nightmare scenario of your one copy of the will going missing in the post before you have completed probate elsewhere.

Where there appears to be a misunderstanding is where you have said this would mean you would "have to do a separate will IN each country", which is not required - what is needed (or at least makes life infinitely easier) is a separate will FOR each country.

Sorry to be the bearer of bad news, but if you have been told that your one will is valid
everywhere just because it was valid where it was written then either your lawyer will do very nicely out of your estate or your executor is in for a shock and a lot of travelling expenses ... or if you've agreed to be someone's executor and they've told you that you only need one will and to get probate once, then you're the one in for the shock and the expenses.

Post by **arjay** » April 8, 2016, 3:05 am

JohnG, My UK solicitor told me that as a UK citizen, my worldwide assets have to be declared, as in listed, in UK probate. That then determines what taxes may or may not be due.

Post by **Nigglyb** » April 8, 2016, 3:46 am

arjay wrote:JohnG, My UK solicitor told me that as a UK citizen, my worldwide assets have to be declared, as in listed, in UK probate. That then determines what taxes may or may not be due.

Surely it depends on your residency whether it has to be declared? I assume if this is what your solicitor has advised then your residency falls within the UK
https://www.gov.uk/inheritance-tax/when ... he-uk-dies

However, probate is different to declaring assets in order to pay Inheritance Tax. I'm still unclear how HMRC could track down foreign assets if the executor didn't fill in the form making the declaration
https://www.gov.uk/government/uploads/s ... IHT417.pdf

Post by **wazza** » April 8, 2016, 8:57 am

Apples and pears here.

UK have death taxes, Australia doesn't eg

My 2 wills acknowledge the other and are specific for assets in each country.

Thai will was free, as the Law Firm are the executors

Post by **JohnG** » April 8, 2016, 10:13 am

arjay wrote:JohnG, My UK solicitor told me that as a UK citizen, my worldwide assets have to be declared, as in listed, in UK probate. That then determines what taxes may or may not be due.

Correct, but HMRC determine the tax due based on your declaration and their valuation of your house, etc, not the probate court.

It's two completely separate procedures - probate will be granted before any tax is paid, but if necessary HMRC will freeze sale of property, etc.

Post by **JohnG** » April 8, 2016, 10:26 am

Nigglyb wrote:
arjay wrote:JohnG, My UK solicitor told me that as a UK citizen, my worldwide assets have to be declared, as in listed, in UK probate. That then determines what taxes may or may not be due.
Surely it depends on your residency whether it has to be declared? I assume if this is what your solicitor has advised then your residency falls within the UK
https://www.gov.uk/inheritance-tax/when ... he-uk-dies

However, probate is different to declaring assets in order to pay Inheritance Tax. I'm still unclear how HMRC could track down foreign assets if the executor didn't fill in the form making the declaration
https://www.gov.uk/government/uploads/s ... IHT417.pdf

No, for the UK it depends on your domicile not your residency - very different.

As for HMRC having a problem tracking your foreign assets, it all depends on what they sre. When a foreigner dies in Thailand, regardless of the will, his bank accounts are frozen automatically until the Embassy gives the all-clear to the bank so it's hardly difficult for them to pass that information on to HMRC or the national equivalent.