Thai Succession Law
Although it is undeniable that it will happen eventually, we usually do not want to think of our death time. And when this moment occurs, our family will receive what was ours. This is what is called succession. As the law governing it can be quite different from other countries, we will be focusing on the succession law in Thailand, with an insight into the role of a will.
The principles of Thai succession law
The general rule of succession law is that when a person passes away, its estate devolves to its heirs, which can be composed of goods, debts, or duties. The law distinguishes two types of heirs: the statutory heirs, which are the heirs appointed by the law, and the legatees, which are the heirs according to a will. Hence, only an heir who has a personality and is capable of rights can inherit an estate.
Moreover, some actions of the heirs can lead to their exclusion of the succession, such as concealing the will or raising its share of the succession. An heir can also be disinherited by the de cujus – Latin locution to designate the person of which the succession is opened – or can renounced, by himself, to the inheritance. This refusal of legacy, once done by an express declaration of intention, cannot be revoked.
As aforementioned, because the law divides the heirs into two, the rules applied are not the same. Indeed, the legacy of the statutory heirs will be governed by the Civil code, whereas the inheritance of the legatees will depend on the content of the will, written by the testator – author of the testament. Thus, it is requisite to mark the different consequences between the absence of the will or its presence in the succession.
In the absence of will…
In case of intestacy or if the will made by the deceased is not valid and does not have any legal effect, its estate will be distributed between its statutory heirs, according to the provisions of the Civil code. Thereby, the law divides the statutory heirs into six classes : the descendants (1) – children, grandchildren –, the parents (2), the siblings of full blood (3), the siblings of half blood (4), the grandparents (5) and lastly the uncles and aunts (6). If the deceased person was married, its spouse is deemed to be an heir of the first class, and it has therefore the same statute as the descendants.
The division between the heirs is relevant in two ways, as it determines who gets to inherit first and their shares in the estate. As states the law, an heir of a lower class will have no right to the legacy if the heir from the class above can inherit. For instance, if the deceased has children and the parents still alive, other relatives will not get anything or, on the contrary, if the deceased does not have any children nor parents still alive, then the siblings of full blood will inherit.
Furthermore, the separation also allows to define the shares of each heir according to its class when the marriage partner of the de cujus is still alive. Indeed, the spouse will get more if the heirs of lower classes inherit. Thus, the partner shall receive the same shares as the descendants, while if the parents or siblings of full blood are to inherit (no children), the spouse will receive half of the inheritance. In the same way, the spouse shall get two-thirds of the estate if the siblings of half-blood, the grandparents or the uncles and aunts of the deceased are to inherit. In case of no statutory heirs at all, except the spouse, the latter shall inherit the whole estate.
In the presence of will…
A will is an official legal document that specifies the last will of a person and how the latter wants its estate to be manage after its death. Its author, called a testator, has several ways to make a will, as the law allows five different forms of will. The most popular are the writing document – signed by the testator and at least two witnesses at the same time, who certify the signature of the testator–, and the holograph document, which is an entirely handwritten document, dated and signed by the testator. It also exists the public will, which involves the presence of at least two witnesses and a public officer ; the secret will, which content is only known by the testator, but the witnesses and the public officer will have to sign the envelope containing the testament; and finally, the oral will, which can only be used under exceptional circumstances.
Therefore, a will, on the opposite of the intestacy rules, enables the testator to choose the administrator of its testament, the distribution of its legacy between its legatees, to exclude or include such a person… That way, the testator has the freedom to manage its inheritance according to its sole intention.
However, to be enforceable, the will needs to be legally valid, because, if not, the Court could dismiss the testament – or some clauses – and would implement the intestacy rules, while the whole purpose of the will is to avoid the application of the law. This is why the role of the lawyer is essential when making a will. This law professional will allow the testator not to make any legal mistakes, which could result in declaring the document void.
As for foreigners in Thailand, it is also possible for them to make a will, even recommended, especially if they own properties in the country. If they write one under a foreign law – of their country for example –, it can be enforced by Thai authorities, however the procedure is a lot longer than enforcing a will made according to the Thai law. Indeed, when a foreign judgment gives legal enforceability to a testament, this judgment is not automatically recognized in Thailand, which means that the heirs must file a case to the Court in order to apply the content of the will in Thailand – when the assets of the deceased are situated in Thailand. For the procedure to be final, it takes at least a few months, leaving aside the fact that disagreement from other heirs could arise and take even more time. Therefore, making a Thai will shall make the succession process – when some of the estate is in Thailand –, go smoothly.
Banchee Legal House has extensive experience on drafting and executing the Thai Will for foreign clients who has assets situated in Thailand as well as providing consultation on the succession law in Thailand for the best benefit and best preparation of the client regarding their assets management. For more information, do not hesitate to contact us.
