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Wills and Estates: Issues Specific to Property in Thailand

Transcript of the above video:

In this video today, we are going to be talking about Wills and Estates in Thailand. Again, I am an American attorney; I am not a Thai attorney. We have Thai attorneys that assist with probate and Will drafting matters here in the Kingdom.  But that being said, this is just sort of an overview to provide some sort of, I guess I should say general information with respect to Wills and Estates and how those kinds of issues operate here in the Kingdom. This video is specific to one point which is I find it to be a common misconception among foreigners and even foreign legal counsel that I have dealt with over the years acting as a liaison between our Thai staff and foreign lawyers and foreign clients with respect to Thai Wills as far as what’s called in legalese, I guess you could say, the law of the situs but what’s important to keep in mind, it’s the need for a Thai Will in situations when you are dealing with Thai property. This is especially the case with Thai real estate, Thai real property.

What are we talking about? Specifically we are talking about drafting a Will if you have Thai assets located in Thailand. Thailand takes a very I guess I would say, they operate under a very strict interpretation of Notions of Conflicts of Law. It’s a very unitary system in so far as outside law does not impact Thai legal proceedings or judicial actions or anything like this; International law doesn’t penetrate to that level. Yes there are various treaties and things that Thailand is a signator to, that they go ahead and implement but as of yet, there are no specific treaties with respect to foreign recognitions of judgment pertaining to probate and wills and estates matters here in the Kingdom; at least that I know of as at the time of this video and for that reason, if you have real property, especially real property, especially Thai condominiums which a foreigner can own outright in Thailand pursuant to the provisions the Thai Condominium Act which we discuss in another video rather at length. But that being said, let’s just take as a “for instance”, a Thai condominium. You have an individual, they die intestate, which means they die without a will and you’ve got this Thai condominium, it’s worth 3 million baht, it’s all paid for. Who inherits it and moreover, what needs to be done to go ahead and deal with the probate and get that matter dealt with so that the heirs can go ahead and take possession or liquidate or enjoy the benefit of their property that their deceased, presumably loved one, has left behind. In somewhere like, let’s say the United States, you have different states they may have different laws but we have legal notions of full faith and credit where is a foreign state, if another state makes a decision with respect to certain issues, it’s probable that the other state will go ahead and respect that judgment and enforce it; that’s the most important thing.

Even in the United States though, the Full Faith and Credit Clause, important as it is, it’s those cases, it’s the law of the location where the property physically is resident be that real property or say money in a bank account, it’s still important as to the jurisdiction of that local property, the law of the locality is still very important because there could be a massive conflict between the 2 different states with respect to their interpretation or their statutory framework for dealing with inheritance which is why in general it is a good idea to just have a Will, even if it’s a basic Will with respect to property, especially here in Thailand. There are even certain formalities like registration of said Will that can lock in the provisions even more deeply. But that being said, even a Will that isn’t registered with say the Thai Civil Registrar’s Office, even a Will, as long as it adheres to certain stipulations set forth within relevant Thai law, and I am not going to get into detail on that, again, I am not a Thai attorney but as long as it adheres to certain provisions, the Will will very likely stand in a probate context. The thing to take away from this video is in Thailand having a Thai Will here is especially important if you have Thai property in Thailand, because a Will that’s written out in some foreign jurisdiction is very unlikely, there’s maybe some rare cases or some exceptional circumstances where perhaps a Thai court could use their jurisdiction and their discretion to go ahead and sort of adopt a foreign Will into their record or something, again, I am not a Thai attorney, I am not going to speculate on that. But let’s just say I think that it’s probably not a bad idea for the vast majority of folks to go ahead and have a Will on hand especially if you have physical property or real estate, real property here in the Kingdom as having that Will in place is going to forestall some really sticky legal situations that could arise as a result of not having such preparation set up in advance.