Probate and Succession
Overview of Thai Estate Laws
Like most countries, Thailand has estate laws that govern inheritance and estate administration. It is prescribed in the Civil and Commercial Code of Thailand that when a person dies without a will, his/her estate is distributed among what are referred to as “statutory heirs.” There are six classes of statutory heir and each class is entitled to inherit in the following order:
- brothers and sisters of full blood
- brothers and sisters of half blood
- uncles and aunts
An heir of any lower class is not entitled to inherit if an heir of any higher class survives. Any surviving spouse is also a statutory heir. The deceased may leave a will prior to his/her death specifying a certain beneficiary(s) as well as an administrator to ensure that his/her estate is inherited and administered in accordance with his/her wishes. In the event an administrator is not specified in a will or a person dies intestate (without a will), the court will appoint one upon request of an interested person (e.g. an heir or a creditor of the deceased).
Process of Appointing an Estate Administrator
After a person has passed away, his/her estate will automatically devolve on the statutory heir(s) or specified beneficiary or beneficiaries. A court order appointing an estate administrator is not always needed, particularly if the inherited property does not require registration, for example, clothes, furniture, or electronic appliances. However, things can get more complicated if an estate is comprised of titled property like land, houses, cars, guns or a large amount of money deposited in a bank, since this will necessitate the involvement of government or bank officials. These officials are very unlikely to allow changes on the titles or the control of property in the absence of a court order appointing an administrator.
The procedure of appointing an administrator under Thai law is a little different from probate, a court process by which a will is proven to be genuine and valid and where an estate administrator/executor is appointed. Probate exists in common law jurisdictions, e.g. the US, the UK and Canada. Thailand, however, does not have any formal probate process or any probate court, but it does adopt a similar concept of appointing an administrator. Under Thai law, a person eligible to file a petition to appoint an administrator must either be an heir, an interested person, or a public prosecutor. While a nominated administrator doesn’t have to be included in that group, he/she at least must not be disqualified; that is to say, he/she must not be a minor, incapacitated or insolvent. The petition must be filed with the provincial court that has jurisdiction over the area where the deceased is domiciled at the time of his/her death. If the deceased is domiciled abroad, the petition must be filed with the court having the relevant jurisdiction over the area where the estate is located. After the petition is filed, the Thai court will set a hearing date. On the hearing date, the court will hear the facts presented by the petitioner and, if satisfied with the evidence presented, will render an order appointing an administrator. This process usually takes approximately 2 months. However, if a petition is contested, meaning that another interested person disagrees with the petition and files a response accordingly, the process can take significantly longer.
It should be noted that the objective of a petition to appoint an administrator is not to determine the ownership of an estate. Rather, this type of case aims to determine whether the petitioner is eligible to file the petition, whether the nominated administrator is qualified, and whether there is any impediment to estate administration. When drafting the petition, the petitioner will list the discovered assets of the deceased and whether the deceased left a will enumerating his/her inheritable assets. If so, these assets will be listed in the petition as well. The resulting court order will confirm that the petitioner has some relevant legal relationship to the deceased, that the nominated administrator is suitably qualified, and that an impediment to estate administration was found. Only the assets listed in the petition will be enumerated in the court order, but once appointed, the administrator will have the right to identify new assets in addition to those enumerated in the court order.
As mentioned, unless there exists some impediment when attempting to obtain the deceased’s assets, the process of appointing an administrator is not necessary. Items that do not require registration, e.g. jewellery or electronic appliances, are readily transferred. In the event the deceased left a small amount of money in a bank, some banks may allow a beneficiary to withdraw a certain amount of money and permanently close the account without requiring a court order, on the basis that the beneficiary provides the bank with proof of being a statutory heir or a will naming the person as a beneficiary. Banks may allow a withdrawal of approximately 10,000 - 50,000 THB. If a withdrawal is requested for more, a court order is generally required.
Recognition of Foreign Court Order
Thai government authorities do not recognize court orders rendered by foreign courts and, therefore, will not allow a beneficiary to make any title transfer of assets on the authority of such an order. If a foreign owner leaves behind assets in Thailand, his/her beneficiary would need to file a petition to appoint an administrator with the Thai court in order to acquire them. Certain Thai banks however do accept foreign court orders.
How Do We Know What Assets the Deceased Has Left Behind?
One of the duties of an administrator is to enumerate the deceased’s assets to the extent possible. While it can be difficult to know if the deceased owned items like jewellery, cash, watches and laptops, properties like land, cars, guns, or shares may be more readily traced since they need registration or a record whenever a transfer takes place. Empowered by a court order, an administrator may make an inquiry to an official, e.g. at the land office, to establish whether the deceased had any land or houses registered in his/her name. A court order appointing an administrator along with a statement of final judgment should be attached to the inquiry. This same procedure can be done at a land transportation office in order to establish whether the deceased owned any motor vehicles.
How Do We Know if the Deceased Left a Will?
There are several forms of will legally permitted under Thai estate law and a few forms of them require the involvement of a district official. The forms of will that must be completed or submitted at a district office are: a public document will, a secret will and an oral will. These wills are kept at a district office throughout the life of a testator. When the testator has passed away, his heir or beneficiary is required to inform the district office of his/her death in order for the contents of the will to be released. In the absence of forms of will completed or submitted at a district office, it may be that a will falls into other categories of will, e.g. an ordinary will or a holographic will (a handwritten will). If not readily available, the existence of such wills can be more difficult to establish since they do not require, other than witnesses, a district officer’s acknowledgement for the will to be valid. It therefore makes sense in scenarios such as these for a testator to inform a person he/she trusts in advance of the existence of such a will.
Recognition of Wills Drafted Under Foreign Laws
A will drafted under the provisions of a foreign law is acceptable within the Thai jurisdiction, but with some important qualifications. When drafting a will, some critical factors should be taken into consideration, such as the qualifications of the testator and of the nominated administrator, the location of assets, the preferred form of will, etc. Even though a testator can draft a will under the law of the country of his/her nationality, when enforced in Thailand, a part or parts of the will may not be fully enforceable if they are contrary to Thai law. For example, according to the Conflict of Laws Act, a clause of a will regarding an immovable property is subject to the law of the country where the property is located, while a clause regarding the qualifications of the testator is subject to the law of the country of the testator’s nationality. Therefore, if the property is located in Thailand, Thai law will be applied to the relevant clause of the will, but if a dispute regarding the qualification of the testator arises, the law of the country of the testator’s nationality will be applied. In addition, trusts are also unenforceable under Thai law. For reasons like these, best practices dictate that an entire will is drafted in accordance with Thai law if the testator wants it to be fully enforceable in Thailand.
If you have questions or concerns regarding Probate and Succession in Thailand, please do not hesitate to contact us.