Content: Inheritance Condominium, Inheritance of land, Succession of a lease agreement
If you have NOT made a will inheritance laws will determine what happens to your assets when you die.
Under Thai inheritance laws this generally means that the assets will be distributed amongst the statutory heirs. Under section 1629 of the Civil and Commercial Code of Thailand there are 6 classes of satutory heirs and they are entitled to inherit in the following order:
So long as there is an heir surviving in one of the classes, the heir of the lower class has no entitlement to share in the assets. The one exception is where there is a descendant and a parent in which case they take an equal share (section 1630). If there is more than one heir in any one class, they take an equal share of the entitlement available to that class. The surviving spouse is a statutory heir but their entitlement depends on what other class of statutory heir exists. If there are surviving children of the deceased, the spouse and children take the estate between them. Therefore, if there are three children, then the estate is divided in to four equal shares.
Legal foreign wills are acceptable in Thai Courts subject to being translated and authorized at the Ministry of Foreign Affairs, but the legal procedure to enforce it can take a long time. The execution of a foreign will in Thailand is always subject to a court procedure.
Under Thai law trusts created whether directly or indirectly by will or by any juristic act producing effect during lifetime or after death have no effect whatever (Section 1686 Civil and Commercial Code).
Any foreigner who is married to a Thai national is under Thai law a statutory heir and can apply for ownership according to section 93 of the Thailand Land Code Act, however ownership will not be allowed. The over fifty year old Section 93 of the Land Code must be read in combination with ownership under a treaty.
The last treaty was terminated in 1970 and there is currently no treaty with any country to allow a foreigner to acquire land and no minister will allow a foreigner to inherit land in Thailand. Under present law any foreigner who acquires land by inheritance must dispose of the land within a reasonable period (meaning up to 1 year) to a Thai national. If the foreigner fails to dispose of the land the Director-General of the Land Department is authorized to dispose of the land and retain a fee of 5% of the sale price before any deductions or taxes.
A foreigner who acquires a condominium unit by inheritance either as statutory heir or inheritor under will acquire ownership of the unit, however it is required by law that the unit shall be disposed within 1 year from the date of acquisition, unless the foreign heir qualifies for ownership. The Condominium Act divides foreign heirs in qualified and unqualified for ownership.
If the foreigner does not qualify for ownership under the Condominium Act he must dispose of the unit within 1 year. If the foreigner fails to do so, the Director-General of Land Department shall have the power to sell the condominium unit on the foreigner's behalf ( condo inheritance section 19 of the Condominium Act). The Condominium Act divides foreign heirs in qualified foreigners 19 section 19 quinque, and unqualified foreigners (section 19 septum).
More complicated, should a foreign director in a Thai limited die the shares (and thus the assets) and control in the company will not automatically transfer to the heirs. Officially a general meeting of shareholders must be called and a shareholder decision is needed to appoint a new director. The shares in the company of the deceased must be transferred at the Ministry of Commerce, however, without the managing authorized director able to sign it is less simple. It may be recommended to have more than one director in the company and/ or someone authorized to sign on behalf of the company.
A lease agreement is in general terminated at death of the lessee as lease is in principal a personal right (Thai law and confirmed by the Supreme Court). If the lessee dies the remaining term and lease rights will not by law transfer to your heirs. The lease is terminated upon death of the lessee and generally, if this is not included in the lease agreement, the land owner may refuse the transfer of the lease to the heirs. The lease agreement must have a succession clause in the agreement. There is some doubt on the status of a succession clause in the lease, meaning if it is a real lease right that will transfer and be binding upon successors of the land. The heirs have the right to claim performance directly from the lessor (section 374 Civil and Commercial Code). It may be recommended to include co-lessees in the lease agreement who each can independently continue the lease in the event of death of one of the lessees.
Samuiforsale provides general Thai legal information and law resources in English over the Internet. The information in Samuiforsale should be used as general Thai legal information in English but should not be treated as a substitute for specific legal advice concerning individual situations.