Land ownership in the event of a Thai partners death

[Bristolian]

My apologies if this is posted in the wrong section and should be posted under Legal. I could not decide……………….

My wife and I own a house in Hua Hin. Well, to be technically correct of course the land is registered in my wife’s name and I have a usufruct agreement which is also registered at the land office. The usufruct entitles me, a foreigner, to the possession, use and enjoyment of the plot of land for the duration of my life. I provide my wife with no compensation for the usufruct (i.e. no payment).

My question is what would happen to the house in the unlikely event of my wife dying before me? I say unlikely because of our age difference. Both my wife and I are concerned as we have a 5 year old son who we would like to, of course, have the house after our deaths. But if my wife were to die before me, I of course would need to be able to house and look after him. Being forced to sell the property, as a foreigner would not be the ideal situation.

We are considering my wife making a Will, passing ownership of the land and house to our son on her death if it precedes my own death, but the next question is at what age would this be legal? I would also presume that also before a certain age he would still need a Thai trustee to administer the property or maybe not?

Is this the best route or have others found a more effective way of dealing with this issue

[malcolminthemiddle]

My understanding is that if a wife were to die before her registered husband without a will her assets would automatically transfer to the husband. If the assets include land and the husband is a foreigner then he has one year to sell or transfer the land to new ownership. The new Owner can be a dependent child under the age of 18 years under the foreign husbands guardianship.

Best advice is instruct a recognized Thai Law firm to draw up Thai Wills for both you and your wife covering all possible circumstances such as you and your wife dying together in an accident leaving your child parentless.

[Bristolian]

Thank you for the valuable advice

Best advice is instruct a recognized Thai Law firm to draw up Thai Wills for both you and your wife covering all possible circumstances such as you and your wife dying together in an accident leaving your child parentless.

You make a very a very good point and I will certainly be using a Thai lawyer to ensure that all areas are covered, I really, stupidly, had not even considered my wife and I dying together. I had best get this sorted out quickly for my own peace of mind and for the benefit of our son.

[HHTel]

You could of course transfer the whole property to your son. As he's under age, he would not be allowed to sell it until he's 20. This is okay as long as you have no plans to move in the future.

[buksida]

In a similar situation (apart from the age difference ), was told that it is legally possible to put a chanote in trust in a child's name but the land offices don't like doing it when foreigners are involved so you need a good lawyer.

[Nereus]

Well, to be technically correct of course the land is registered in my wife’s name and I have a usufruct agreement which is also registered at the land office. The usufruct entitles me, a foreigner, to the possession, use and enjoyment of the plot of land for the duration of my life. I provide my wife with no compensation for the usufruct (i.e. no payment).

If the Usufruct is drawn up correctly it should state to be binding on the owner of the land, and all of her / his heirs. Which means that you have right of use until you are deceased.

The drawing up of a will is both essential, and a minefield, to have it just how you intend.
Bear in mind that in the event of a dispute the Thai version prevails in a Court of Law.

[Bristolian]

Thanks guys

HHTel Wrote
You could of course transfer the whole property to your son. As he's under age, he would not be allowed to sell it until he's 20. This is okay as long as you have no plans to move in the future.

buksida wrote
In a similar situation (apart from the age difference was told that it is legally possible to put a chanote in trust in a child's name but the land offices don't like doing it when foreigners are involved so you need a good lawyer.

As is said in my original post, both my wife and I would like the property to finally transfer to our son. The only problem I see with the routes that you have suggested is that the property could not be resold until my son was 20.

15 years is a long time and anything can happen to the best of plans during that sort of time period. My wife and I love Hua Hin and have no plan to sell up and move but you never know what may happen that may force such a decision on us.

I will certainly take your advice and speak with a good lawyer and let him give his advice as to which route is the most efficient and provides the necessary protection, under law to all of us. As I do not yet have a Will in Thailand this I must do anyway….it’s long overdue

[Bristolian]

Thanks Nereus

If the Usufruct is drawn up correctly it should state to be binding on the owner of the land, and all of her / his heirs. Which means that you have right of use until you are deceased

I have checked the English translation of the Usufruct and the agreement is between my wife and me. There is no mention of “and all of her/his heirs”. The legal practice that I used is a very reputable French/Thai law firm who were the ones that suggested the inclusion of a Usufruct. I am a little surprised that they did not suggest the inclusion of “and all of her/his heirs” as this as it makes sense to me, if it is indeed as you say it is possible under Thai law.

I do also appreciate your comments on making a Thai Will. It is something that I have been putting off for too long already. I am aware that the Thai document is the ruling document but without understanding documents in Legal Thai, it is difficult to know if the English translation provided is indeed an acurate translation.

[Nereus]

..............................without understanding documents in Legal Thai, it is difficult to know if the English translation provided is indeed an acurate translation.

Yes, this is major consideration. Ask 4 different lawyers to translate a document and you will get 4 different interpretations. Take some case to court and you will get yet another interpretation! (ask me how I know!)

It is the same with what you have mentioned with your lawyers not adding about the heirs. I had an experince with a well known law firm in Bangkok who refused to draw up a Usufruct, but could not explain to me why!

Try and research as much as you can yourself, before paying good money to a "lawyer".

[Bristolian]

It is the same with what you have mentioned with your lawyers not adding about the heirs. I had an experience with a well known law firm in Bangkok who refused to draw up a Usufruct, but could not explain to me why!

Mine was almost the same story. With few laws protecting foreigners in Thailand I really thought hard and long about land ownership and buying a house, how could I protect myself and not offend my wife. I have a condo in Bkk and there of course ownership is not an issue.

I decided to consult a lawyer to find a suitable solution and the Usufruct was their suggestion. My wife fully understood my concerns and was very supportive of the idea and fully understood the implications.

When we visited the lawyers to draw up the agreements the Thai lawyers repeated to her, in Thai, time after time the restrictions that a Usufruct would place on her ability to sell the property, should she wish to do so, without my consent/agreement. My wife told them that she fully understood and that it was her wish to sign the agreement.
The whole meeting seemed to be focused, in Thai, to maximise anther Thais interests over those of her foreign husband.

I have spoken to quite a few expats who have homes with Thai partners and very few seem to have ever heard of a usufruct agreement and perhaps these are the reasons why!

[JW]

Speak to Chavalit and Finch in Hua Hin, they have helped many of our clients with same questions.

[Bristolian]

Speak to Chavalit and Finch in Hua Hin, they have helped many of our clients with same questions.

Thanks JW. I'll give them a call. If they have met and solved the same issue previously that will certainly help

[Super Joe]

My question is what would happen to the house in the unlikely event of my wife dying before me? Both my wife and I are concerned as we have a 5 year old son who we would like to, of course, have the house after our deaths. But if my wife were to die before me, I of course would need to be able to house and look after him. Being forced to sell the property, as a foreigner would not be the ideal situation.

Firstly you really have to get wills drawn up, spouses (Thai or foreign) are not one of the 6 classes of statutory heirs under Thai law so it may be the case that you are only entitled to a share equal to that of her descendants, parents, siblings, aunts/uncles etc. If a wife has say 2 kids with a previous Thai boyfriend then you, your son and the 2 previous kids get an equal 25% share, with the possibility of said Thai boyfriend-father stumping up to 'manage' their 50% Get wills done by Chavalit & Finch would be my advice, that's what we did.

If your wife died you would not have to sell the house or anything. A usufruct agreement registered at the land office is, under Thai law, a 'real right' and not a 'personal right'. Ie: its a legal right between a person and a thing (property) enforcable against all others, as opposed to a legal relationship between two persons. As such the legal right is attached to, and follows, the land title and not the person, any new land owner whether through inheritence or sale is bound under law by such existing rights. A spouse can apply for agreements during marriage to be anulled though but there's ways to protect against that.


A usufructuary's 'interest' over a property does not have to die with them so to speak, it can 'live on' well after death. This also protects against a partner attempting to cancel an agreement made between spouses if things go pear shaped...
- Thai Law Codes, Section 1422 - Unless otherwise provided in the act creating the usufruct, the usufructuary may transfer the exercise of his right to the third person.

- Supreme Court Judgement 2297/1998: 'The lessor does not have to be the owner of the property. Therefore the usufructuary can rent out the land. Although in the event of death of the usufructuary within the lease term, only the usufruct will be terminated but not also the lease'

- Supreme Court Judgment No. 2297/2541 - The owner of the land and house has registered the right of usufruct on the land. After registration of the lease the usufructuary has made a 30 year lease agreement in writing and registered with the competent official, thus the lease agreement is enforceable and binding upon the owner of the land. Although during the lease term the usufructuary died and the usufruct is extinguished, the death does not to affect the right of the third party and the registered lease agreement is not to be terminated.[/i]

I'm not sure that a minor is allowed to receive a lease though.


SJ

[malcolminthemiddle]

My understanding is that if a wife were to die before her registered husband without a will her assets would automatically transfer to the husband.

Spouses (Thai or foreign) are not one of the 6 classes of statutory heirs under Thai law so it may be the case that you are only entitled to a share equal to that of her descendants, parents, siblings, aunts/uncles etc.

I stand corrected.

[Bristolian]

Thanks Super Joe
You give very comprehensive answer. I thank you for the time that this must have taken to put together.

As many posters have made clear, I am now sure that my next step must be to visit Chavalit & Finch to discuss our particular requirements and circumstances. I will need to draw up a list of circumstances to be considered, in the Wills, including what would happen if my wife and I died together leaving our young son. Who should become guardian and who should manage his estate for him until he reaches a legal age where he can manage the estate by himself?

I also have a home and some funds in the UK which I would like to Will to my two older children, from my first marriage, and I guess this that this is the subject of a UK Will and exclusion clause in the Thai Will. I will of course take the advice from Chavalit & Finch as to the most efficient way to do this.

Firstly you really have to get wills drawn up, spouses (Thai or foreign) are not one of the 6 classes of statutory heirs under Thai law so it may be the case that you are only entitled to a share equal to that of her descendants, parents, siblings, aunts/uncles etc. If a wife has say 2 kids with a previous Thai boyfriend then you, your son and the 2 previous kids get an equal 25% share, with the possibility of said Thai boyfriend-father stumping up to 'manage' their 50% Get wills done by Chavalit & Finch would be my advice, that's what we did.

The above is also a major consideration as my wife has a son and daughter from her previous marriage (17 years and 21 years) and their father keeps in touch with them but has not financially supported them for the last 15 years. I would really hate for him to benefit in any way

I'm not sure that a minor is allowed to receive a lease though.

In our case there is no lease involved, the property/land is 100% owned by my Thai wife and registered at the land office along with the Usufruct agreement. Therefore it would be a question of: At what minimum legal age can a Thai national can own land even if managed/administered by a non-Thai national parent.

Like I say, we will visit the Lawyer and ask all of these questions in the construction of the Wills for both my wife and myself.

A huge thanks to all of the posters who contributed to this thread, with incredible expertise and experience, your posts have helped us enormously.