Probate and Estate Administration
We will discuss how probate and estate administration differs in the following countries: Thailand, the USA, the UK and Australia. Broadly speaking, probate is a court process which validates a will left by a decedent and appoints an estate administrator. The laws are aligned in some respects, however, there are some important differences.
In Thailand, there exists a process similar to probate, but usually referred to as estate administration.
According to the Civil and Commercial Code of Thailand - the law that governs succession and estate administration - when a person passes away with or without a will and his/her heirs or an interested person wish to transfer, inherit or administer the estate of the decedent, that person must file a petition with the court requesting to be an estate administrator.
After being appointed by the court, the estate administrator must distribute the estate to the rightful heirs and/or any other interested person(s), e.g. any creditor(s). Aside from the heirs, any person the decedent designated in his/her will to be an estate administrator is able to petition the court. A public prosecutor can also file a petition if no one is able or willing to be an estate administrator.
As Thailand does not have a probate court that specifically deals with wills and estates, the petition appointing an estate administrator must be submitted to the court within the territorial jurisdiction of which the decedent is domiciled at the time of his/her death. If he/she is not domiciled within Thailand, any petition should be submitted to the court having the relevant territorial jurisdiction.
The following persons cannot be an estate administrator:
- A minor (a person under the age of 20)
- A person of unsound mind or adjudged quasi-incompetent
- A person adjudged bankrupt by the court
Supporting documents that need to be submitted with the petition are usually the death certificate of the decedent, a relative list, birth certificates of the rightful heirs, a marriage certificate (if relevant), a list of assets, and proof of residence of the decedent at the time of his/her death.
The process of appointing an estate administrator is generally straightforward and usually takes around 3-4 months to complete. However, complications may arise if, after filing the petition to appoint an estate administrator, an interested person files a response attempting to prove that he/she would be a more suitable estate administrator if appointed.
This will render the case contested, meaning that it could potentially become costly and time consuming.
It should be noted that the process of appointing an estate administrator is not required if there is no impediment to acquiring the estate of the decedent. For example, if a bank allows an heir to withdraw a small amount of money deposited in the decedent's bank account (usually THB 50,000 or less), it is likely that a court order appointing an estate administrator will not be needed. However, if an heir or a beneficiary wishes to inherit a piece of land that belonged to the decedent, a court order will definitely be required when transferring the ownership of the land.
Inheritance laws in the US differ from state to state. What they have in common is the probate process. The US judicial system has a probate court that deals with wills and estates. As mentioned, probate is a legal process that determines whether the will left by the decedent is valid and appoints an estate administrator or executor to distribute the estate to the beneficiaries and to clear any debts. If a person is designated in a will by the decedent to manage the estate, such person is called an "estate administrator." If there is no will, the court will appoint a person to administer the estate.
In New York, for example, after a person dies and on the basis he/she left a will, the executor submits the will and a death certificate along with a probate petition to what is called "the Surrogate's Court" in the county where the decedent lived and had his/her primary residence. This court deals with cases involving the affairs of decedents, wills, and the administration of estates. The court will then determine if the will is valid. If it is found to be valid, an executor will be appointed to distribute the estate. If the estate of the decedent is of relatively low value, say less than $50,000, a simplified process called a "Voluntary Administration" can be filed instead.
Equally, in California, not every matter needs to go through the process of full probate. If the value of the estate is less than or equal to $166,250 or the beneficiaries are named in assets such as life insurance, pensions, bank accounts, or property in a living trust, the petitioner generally qualifies for a "Simple Transfer Process," rather than formal probate which requires the petitioner to go to probate court. If the decedent did not leave a will, the Probate Code of California sets out a priority list of who should be the administrator. The surviving spouse or domestic partner has the first priority, followed by children.
The probate process generally takes around 1 year to complete, including the distribution of any assets to the beneficiaries.
Probate under UK law is the legal right to manage the properties or the estate of a decedent. If a beneficiary wishes to inherit an estate, they must first be granted probate. However, if the decedent co-owned a property with another co-owner, the share of the property will automatically transfer to the surviving co-owner, meaning that he/she is not required to apply for probate. This is called the right of survivorship and there is no similar right in Thai law. Another circumstance that does not necessarily require probate is when a bank allows the release of a small amount of money. The regulations on this differ from bank to bank. Before one is granted probate, he/she must estimate the value of the estate to establish whether any inheritance tax is due. Probate can be filed online by the person named in a will or the decedent's next of kin if there is no will. If the decedent left a valid will, the authority will issue a "grant of probate." If there is no will, a "grant of letters of administration" will be issued. It generally takes around 8 weeks after applying for probate for the authority to issue either a grant of probate or a grant of letters of administration. Upon receiving these, the beneficiary will be able to manage the decedent's estate.
Being a federation, Australia has inheritance laws that are slightly different in each state. In Victoria, for instance, the application for probate must be filed with the Supreme Court of Victoria if the assets of the decedent are situated in Victoria. Similar to the UK rules, if the decedent left a will, the beneficiary will apply for probate. But if the decedent did not leave a will, the decedent's closest next of kin must apply for "letters of administration." Once the beneficiary decides which type of grant he/she will apply for, he/she will then publish advertisement of an intention to apply for probate or administration. The advertisement must be published for 15 days before filing the application. After 15 days has elapsed, the applicant will be able to file the petition. If the grant is issued, the applicant can administer the estate of the decedent.
If you have questions or concerns regarding Probate and Estate administration, please do not hesitate to contact us.