Over the years, our firm has been contacted by many foreigners who have had a family member living in Thailand who passed away. Those who died in Thailand often had various assets in the Kingdom, such as bank accounts, real estate (such as a condominium) and vehicles etc and the foreigner’s relatives now had to navigate the Thai legal system in order to finalize their estate with respect to such property located in the Kingdom. This article shall cover some of the more important matters which surviving relatives should be aware of before embarking on this journey.
Death Certificate
If your relative has died in Thailand then one of the key documents which you are going to need is the death certificate. This is issued by the Thai Government and will state various details of the deceased including their full legal name, date of death, place of death, cause of death, nationality, marital status, age, sex. This document is very important and as such once it is issued, it should be scanned and saved online as a backup. If the deceased has assets overseas which will need to be handled by foreign courts then it would be sensible to get a certified translation of this document prepared in the language of such other country so it can be used in that other country as evidence. It is also worth noting that this document may later need to be submitted to the Thai Court if an Executor/ Administrator wishes to be formally appointed by the Court.
Funeral of the Deceased
The Administrator/Executor of the Estate has the power and the duty to arrange for the funeral of the deceased unless the deceased has appointed another person to handle it. It is not necessary to get a court order before arranging a funeral of the deceased.
If there is no Administrator/ Executor or person specially appointed to arrange the funeral or no person appointed by the Heirs to manage the funeral then the person who received the most property by Will or by statutory right will have the power and duty to arrange for the funeral of the deceased. However, the Thai Court can appoint someone else if an interested person makes an application to the Court and the Court thinks it is appropriate to appoint such other person to arrange for the deceased’s funeral.
If the funeral of the deceased is delayed for any reason then the person who is empowered to arrange for the funeral must reserve a reasonable amount of funds from the deceased’s Estate for the purpose of holding the funeral. If the amount to be reserved is contested by interested parties or cannot be agreed then an interested person can apply to the Court for a decision on what is reasonable.
Did the Deceased Have a Will/ Final Testament?
One of the key issues, which surviving relatives will need to explore is whether the deceased had a valid Will at the time of their death?
If there is no Will or the Will is invalid
If the deceased did not have a Will then they are considered to have died ‘intestate’, in such case the applicable law shall apply various provisions with respect to the estate of the deceased. In the case of property located in Thailand such as real estate then Thai law applies a legal formula as set out in the Civil & Commercial Code to determine which persons shall be able to inherit, these people are called ‘statutory heirs’.
Thai law provides that where a person dies without a will or where they have made a Will but such Will has no effect (i.e. is declared null and void) then the whole of their estate shall be distributed among the deceased’s statutory heirs according to law (using the statutory formula contained in the Civil & Commercial Code)). Moreover, if a person makes a valid Will which does not dispose of all of their Estate then the remaining portion of their estate shall be distributed amongst their statutory heirs according to abovementioned statutory formula.
If there is no Will or the Will did not appoint an Executor or an appointed Executor is unable or unwilling to act in this capacity then any heir or any interested person or the Public Prosecutor may apply to the Court to appoint an Administrator of the deceased’s Estate. The Court may make the appointment for the benefit of the estate, having regard to the circumstances and taking into consideration the intention of the deceased person as the Court thinks fit.
If the deceased did have a valid Will
Please note that a valid Will must be made strictly according to the forms prescribed by law. Therefore, to avoid any dispute arising in the future, we recommend that you should consult a professional lawyer on whether the Will meets the legal requirements before proceeding.
If the deceased person did have a valid Will then such document will need to be found. If the Will appoints an Executor and such person is willing and able to fulfil this role then such person can immediately use the Will to distribute the Estate’s property in Thailand to the heirs (according to the provisions of the Will and subject to Thai law) provided that there is no problem. However, in certain cases some parties in Thailand which control or regulate the Estate assets (such as commercial banks and Government Departments/ agencies i.e. Land Dept.) will not allow the Executor/Administrator of an Estate to gain access and to transfer/distribute certain Estate assets until they see a valid Court order which appoints such person as the Executor/ Administrator the Estate. Hence to do this, the Executor/ Administrator must apply to the Court for such appointment and in doing this they must give testimony in the Court and provide various documents to support the application including the Will and the death certificate of the deceased.
Executor/ Administrator of the Estate
If the deceased had a Will and such document specifies one of more executors then such persons can apply to the Thai Court to be officially recognized as the Executor(s) of the Estate subject to the conditions in the Will and Thai law. As noted above it is not always necessary for the Executor/ Administrator to apply to the Court to have their appointment officially recognized but if you are dealing with banks or Government departments then it shall likely be required. In applying at the Court, the appointed Executor(s)/ Administrator will need to give evidence and confirm that they are willing to act in this role. In relation to this step, it should be noted that the following types of persons are unable to be an Executor/Administrator of an estate:
i. A person who is under 20 years of age;
ii. Persons of unsound mind or adjudged quasi incompetent;
iii. Persons adjudged bankrupt by the Court.
It is worth noting that according to Thai law a foreigner (non-Thai) can be an Executor/ Administrator of an estate in Thailand.
However, if the nominated executor(s) are unable or unwilling to act as the executor of the Estate then an ‘interested person’ can instead apply to the Thai Court to be appointed as the Administrator of the Estate (subject to Thai law). In such case the interested person can be challenged in the Thai Courts if other parties dispute such person(s) being appointed. If a challenge occurs then the Thai Courts will adjudicate the matter and decide who should be appointed as the Administrator(s) of the Estate taking into account various factors such as the suitability of the applicant, their relationship with the deceased etc.
If the deceased died intestate (without a valid Will) thereby not appointing an executor, then in such case an interested person or persons can apply to be the Administrator(s) of the Estate. As mentioned above, such application can be challenged in the Courts if other interested persons dispute such appointment.
Role of the Executor/ Administrator of the Estate
An Executor or Administrator of the Estate are tasked with various important jobs/ duties concerning the estate of the deceased including:
1. They must take proper steps to seek out the interested person (heirs) and notify them within a reasonable time of the testamentary dispositions concerning them;
2. They cannot, unless permitted by the will or the court, enter into any juristic act (legal act) where he/she has a conflict of interest which conflicts with the interests of the estate.
3. They must act personally when carrying out his/her functions unless he/she can act by an agent through express or implied authority under the will or by order of the Court or by requirement of the circumstances for the benefit of the estate.
4. If there are several administrators of an estate, the performance of their duties shall be decided by a majority of votes unless otherwise provided by the Will. In case of a tie, on application of any interested person, the decision shall be given by the Court.
5. The Administrator/ Executor of an estate must make an inventory of all Estate s assets such as bank accounts, real estate, vehicles, investments, as well as all debts. The Executor/Administrator must begin making the Estate inventory within 15 days from:
i. The date of death of the deceased if, at such time, the administrator/executor has knowledge of his/her appointment under the will entrusted by the Court.
ii. The date when the administrator has knowledge of his/her appointment under the Will entrusted to him/her, or
iii. The date of his/her acceptance of administratorship in any other case.
The Administrator/ Executor of the estate must have the inventory of the estate finished within one (1) month from the time mentioned above; but this period of time may be extended by permission of the Court if the Administrator/ Executor applies to the Court before the expiration of the one (1) month period. If no inventory is made by the Administrator/ Executor within the set deadline and form or if the inventory is found unsatisfactory by the Court on the grounds of gross negligence, dishonesty or obvious incapability of the Administrator/ Executor, then they may be discharged from this role by the Court.
Distribution of the Estate Property to Heirs/ Statutory Heirs
Firstly, if the deceased has a surviving spouse then it shall be necessary to consider whether each asset of the deceased is their personal property or marriage property, this is because (a half of marriage property is considered to be the deceased’s personal property). Only personal property of the deceased can be distributed to the heirs (if there is a will) or statutory heirs (if there is no Will or the Will does not make provision for such property).
So long as all the known creditors of the Estate or legatees have not been satisfied by the performance or distribution, the succession of the Estate is deemed to be under management. During such period, the Administrator/ Executor is entitled to do necessary acts for the management of the Estate. They must take all necessary steps to collect the debts due to Estate within the shortest possible time. Then after the creditors of the Estate have been satisfied (including applicable taxes), the Administrator/ Executor shall divide the Estate and distribute it accordingly to the heirs or statutory heirs (as the case may be).
The Executor/ Administrator should also be mindful of conflict of laws considerations because the Conflict of Laws Act of Thailand (B.E. 2481) contains many important provisions which should also be considered before distributing certain types of assets. For example Section 38 of this Act stipulates that as far as movable property is concerned (such as vehicles, jewelry etc), succession by Will is governed by the law of domicile of the deceased at the time of his death. This basically means that with respect to movable property it shall be governed by the law of the jurisdiction/place where the testator was living at the time of their death.
Time Period to Finish the Distribution of the Estate
The Administrator/ Executor must perform his/her duties and complete the account of management and distribution of the Estate property within 1 year from the relevant date as specified above (see role of Executor/ Administrator point 5 i. – iii.), unless the period of time is otherwise fixed by the testator, by a majority of the heirs or by the Court.
Writers: Ryan Crowley & Phupat Limsritrakul
Dharmniti Law Office Co., Ltd.
2/2 Bhakdi Building 2nd Floor, Witthayu Road, Lumphini, Pathumwan, Bangkok 10330
Tel: (66) 2680 9777
Fax: (66) 2680 9711
Email: ryan@dlo.co.th or phupatl@dlo.co.th
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