Ryan Crowley

Succession Law in Thailand - An Overview

 

General Principles of Succession under Thai law

When a person dies in Thailand their estate is passed to their heirs either by their Last Will & testament  or if they don’t have one then by Statutory Right which is according to the provisions laid down in the Civil & Commercial Code of Thailand (Book VI: Title II Statutory Right of Inheritance sections 1620-1645).

Under Thai law an heir who has been named in a Will is called a ‘legatee’ whereas an heir who is so entitled according to statutory right is called a ‘statutory heir’.[1]

If an heir receives property due to succession, one of the key principles of Thai law is that the Heir will not be liable in excess of the property devolving to them as a result of such succession.[2]

 

Heirs

Exclusion of Certain People as Heirs

According to Thai law, an heir will be excluded for inheriting from an estate if they fraudulently or intentionally prejudice any other heir or if they divert or conceal property from such estate which is up to or in excess of their share in the estate. However, if the heir diverts or conceals less than their legitimate share in the estate then they will be excluded for the succession up to the extent of the part that they diverted or concealed from the other heirs/ administrator of the estate.[3]

Example: If an heir is bequeathed 1.5 million Baht under the Will of his Mother but he hides 700,000 Baht in cash from his Mother’s estate from the other heirs (his siblings) and this is then revealed, then he shall not be entitled to inherit 700,000 Baht from the 1.5 million Baht he was due to receive under the Will and shall only be entitled to the balance of 800,000 Baht.

In addition to the above, the following persons are excluded from inheriting under the law of succession:[4]

  1. A person who is convicted by a final judgment of having wrongfully and intentionally caused the death or attempted to cause the death of the deceased person (the testator) or another person who has a prior right to receive property of the testator under the law of succession, i.e. another Heir.
  2. If a person has knowledge of how the testator/deceased was murdered but did not give information thereof to the authorities for the purpose of bring the offender to justice. However, this exclusion shall not apply if the person was aged under 16 or was of unsound mind and unable to distinguish between right and wrong or if his murderer was their spouse or any of their direct ascendants or descendants.
  3. If a person used fraud or duress to cause the deceased to make, revoke or change (partially or entirely) their Will concerning their estate or prevented the deceased from so doing.
  4. If a person partly or entirely forged, destroyed or concealed a will. However, the exclusion under this section 1606(5) can be overcome if the testator pardons the person in writing for such forgery, destruction or concealment.

If a person is excluded from the succession of a testator the effects of such exclusion are personal such that the descendants of the excluded person success as if such excluded person has died.[5]

 

Disinheritance of Statutory Heirs

A testator can disinherit any of their statutory heirs [6]but only if they make an express declaration of their intention. This can be achieved in the following ways:

  1. Through a statement in the Will of the testator;
  2. By issuing a written declaration that is deposited with the relevant Government official;

If a person wishes to disinherit a statutory heir they must clearly identity such person.[7]

Recommendation: When wording the express declaration of their intention, one approach would be to phrase it as follows: ‘I Mr./Mrs. A do hereby wish to express my intention to disinherit Mr./Mrs. B who resides at___________ as my statutory heir’.

If a person wishes to undo a disinheritance of a statutory heir, it is possible to revoke it but note that if the disinheritance was made via a will then the revocation can only be made via a new will. However if it was done via issuing a written declaration that is deposited with the relevant Government official then the revocation must be done by making a new Will or submitting a written revocation to the relevant government official.

Recommendation: It would be sensible to not only mention the full legal name of the person being disinherited but also some other identifying information such as their address, Thai National ID card number, passport number etc.

 

Heirs who are Minors, of Unsound Mind or a Person Unable to Manage their Affairs

If a minor (aged under 20[8]) or a person who is of unsound mind or a person who is unable to manage their own affairs[9] is an heir under an estate and such person does not have a legal representative or a custodian then the Court will appoint a legal representative or a custodian or curator as the case may be upon the application being made by any interested person or the Public Prosecutor.[10]

 

The law provides that a minor[11] (aged under 20) or a person who is of unsound mind or a person who is unable to manage their own affairs cannot renounce their inheritance or refuse a legacy nor accept an inheritance or legacy which is encumbered with a charge or condition unless they receive the consent of their parents, guardian, custodian, curator as the case may be as well as the approval of the Court.

 

Renunciation of an Inheritance or Legacy

If an heir wishes to renounce their inheritance or wishes to refuse their legacy this must be made by an express declaration in writing[12] of their intention which is submitted to the relevant Government official[13] or can otherwise be made by a contract of compromise. Such renunciation or refusal of legacy cannot be for only part of the estate (it must be for their entire share) and it cannot be made subject to a condition or time clause. [14]

If an Heir renounce their inheritance or wishes to refuse their legacy for the purpose of prejudicing his creditor (avoiding paying his creditor) then the creditor is entitled to claim the cancellation of such renunciation or refusal to accept the legacy but this is subject to certain conditions. If a creditor makes a successful application to the Courts to cancel an inheritance renunciation or legacy refusal then the creditor can apply to the courts for authorization to accept the legacy or inheritance in the place and by the right of such heir. If after the creditor take the monies owing to them and there is balance remaining in the heirs share of the estate then such property will accrue to his descendants or to other heirs as the case may be.

 

If a renunciation is made by a statutory heir, his or her descendants (provided they have not made a valid renunciation themselves) shall succeed under their own rights and will be entitled to inherit the share of the estate as would have gone to the renouncer.[15] However, if the renunciation is made by a statutory heir who has no descendants then that part of the estate which has been renounced shall be distributed amongst the remaining heirs. [16]

 

However, if a legatee refuses a legacy provided under a Will, then such person nor his descendants shall be entitled to receive the legacy so refused. Such part of the estate so refused shall be distributed amongst the remaining heirs.[17]

 

Statutory Right of Inheritance

General

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 his statutory heirs according to law.[18] However, 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 law.

In the case where a person makes a Will which does not cover all of the property in their estate, then an heir under the will (legatee) who is also a statutory heir shall also be entitled to take up their share of their statutory right to the extent permitted by law (with respect to the property not covered by the Will) unless the testator provides otherwise in his/her Will. [19]

 

Buddhist Monks - Inheritance & Legacy

A Buddhist Monk cannot claim an inheritance as a statutory heir unless the Monk in question leaves the monkhood and enforces his claim within 1 year from the death of the person (testator) or within 1 year from when the statutory heir knows or ought to have known of such death. However, in no circumstances can a claim be entered into later than 10 years from the date of the death of the testator.[20]

A Buddhist monk can however be a legatee under a Will.

Any property acquired by a Buddhist monk during his monkhood shall on his death become the property of the temple where he was domiciled unless he has disposed of such property in his life or by a Will. [21] However, any property acquired by a Buddhist monk before he entered the monkhood shall on his death not become the property of the temple, rather this property shall devolve to his statutory heirs or may be disposed by him in any way according to the law i.e. disposed of by Will.

 

Illegitimate & Adopted Children

An illegitimate child who has been legitimized by their father and an adopted child are deemed to be descendants in the same way as legitimate children.[22]

A father can legitimize an illegitimate child in the following ways:

  1. Taking the pregnant mother of the illegitimate child to the hospital to give birth or for medical treatment during the pregnancy;
  2. Informing the Government Registrar at the District Office to update the child’s birth certificate to indicate that the man is the father of the child;
  3. Allow the child to use the man’s surname;
  4. Presenting the child in society as his son or daughter;
  5. Allowing the child to call him their father;
  6. Proving the child with support with respect to their education or living expenses;
  7. Raising the child i.e. showing love and disciplining the child as a parent ordinarily does (doesn’t necessarily have to be living with the child)
  8. Living with the child under his roof;
  9. Registering the child as his child in the household registration;
  10. If the father makes claims for Government welfare with respect to the child i.e. income tax allowance for children;
  11. Living with the mother of the child before the child is born;
  12. Informing 3rd parties (such as friends or other family members etc) of the impending birth of the child and that it is his child (prior to the birth of the child).

Desertion & Separation of Spouses

Spouses who are living apart due to desertion or separation do not lose their rights to claim as a statutory heir provided that their divorce has not been finalized according to law.[23]

Life Insurance & Statutory Heirs – Key Issues

If a surviving spouse is a beneficiary of life insurance for their deceased spouse then the surviving spouse is entitled to receive the entire payout from the life insurance policy; however the surviving spouse may be required to compensate the estate of the deceased if it can be proved that the insurance premiums that the deceased paid were excessive having regard to their income or station in life. However, the amount of premiums to be restored by the surviving spouse to the estate of the deceased shall in no way exceed the amount they received from the life insurance company under the insurance policy. [24]

Example: A junior factory worker (husband) who has a monthly salary of 15,000 Baht is married and has a life insurance policy for 3 million Baht with a yearly insurance premium of 25,000 Baht. The worker dies in an accident and his wife claims under the policy and receives the 3 million Baht. The administrator of the estate then claimed back part of the insurance premiums by arguing in court that the premiums were excessive taking into account the deceased’s salary level and position in society. The Court agreed and found that the premium (annual fee) should have been no more than 10,000 THB per year. Hence the surviving spouse was required to repay the estate 15,000 Baht x the number for years that the deceased held the life insurance policy.

 

Classes of Statutory Heirs

There are 2 kinds of statutory heirs according to section 1629 of the Civil and Commercial Code, these are as follows:

  1. A spouse who was married to the deceased (registered);
  2. A relative according to the six (6) classes as follows:

Class 1 -  Descendants – These are defined as children, grandchildren, great grandchildren, etc. In case of the testator has children, grandchildren and great-grandchildren at the time of his death then only the children (legal children, illegitimate children who are acknowledged by the Father and adopted children) are entitled to inherit. However, if the testator does not have any children but does have grandchildren, then such grandchildren shall be entitled to inherit. However, if the de cujus doesn’t have children or grandchildren but does have great grandchildren then the great grandchild shall be entitled to inherit.

Class 2 -  Ascendant – These are the deceased’s mother and/or father.

Class 3 -  Brother or sister of the same mother and father (full-blood sibling)

Class 4 -  Brother or sister of the same mother or the same father (half-blood sibling)

Class 5 -  Grandfather and grandmother

Class 6 -  Uncle and Aunt

 

Wills:

Different Ways that a Will can be made in Thailand:

Type 1 - In writing (the text could be typed by a lawyer or the testator or their legal representative)[25]

A will can be made in writing provided that:

a.         it is dated as of the time that the will is made;

b.         signed by the testator in front of at least 2 witnesses who must then sign their names on the will certifying the signature of the testator.

It is worth noting that no changes can be made to a will so made unless it is made in the same way as stated above.

Where a person other than the testator is the actual writer of the will then such person must sign their name on the will and include a statement in the will confirming that he is the writer.[26]

 

Type 2 - Holographic Will (will made in the testators own handwriting)[27]

A testator is entitled to write their own will in their own handwriting provided that the following conditions are met:

a.         All of the text must be in the testators own handwriting;

b.         the will must be signed and dated by the testator.

In relation to changes to a holographic will, such changes will not be legally effective unless they are made in the same way as stated above.[28]

Recommendation: If a testator wishes to use this approach then on a practical note they should be careful to ensure that their hand writing is legible as otherwise it could result in their holographic will being unable to be interpreted and followed.

 

Type 3 – Will by Public Document[29]

Under this type of will, the testator must declare their testamentary intentions for the disposal of their property before a Nai Amphoe (District Office Chief) before at least 2 other witnesses. In this approach the following steps must occur:

Step 1 – The Chief District Office must note down each testamentary disposition of the testator and then read it back to the testator and the 2 witnesses. If the testator is not fluent in Thai it would be sensible to use a certified translator for this step.

Step 2 – The testator and the 2 witnesses must sign their names on the written testamentary disposition statement prepared by the Chief District Office after they have verified that the statement corresponds to the verbal instructions of the testator.

Step 3 – Finally the Chief District Office will sign, seal and date the statement and this shall certify that the will has been made in compliance with s. 1658 of the Civil and Commercial Code.

Step 4 – Once the will has been signed by the Chief District Office they will make a copy but such copy will not be provided to a third party during the testator’s lifetime. However, if the testator later wishes to take back such copy of the will he can obtain it from the Chief District Office at any time.

Recommendation: If a foreigner who is not fluent in Thai wishes to use this approach to making a will it is recommended that at least one of their 2 witnesses be able to translate for them so as to ensure that their wishes are accurately reflected in the statement prepared by the District Office Chief. It may also be a good idea for the testator to have the draft statement translated by a suitably qualified and independent translator before they and their witnesses sign it.

Note: A will made in this way may upon request be made outside the Amphoe Office[30] but the writer expects that the Testator would need to provide the Chief District Officer with a good reason to have this granted, i.e. the testator is too unwell to visit the Amphone Office and they are in hospital and unable to move due to health/mobility problems.

 

Type 4 – Oral Will[31]

If a person faces exceptional circumstances such as imminent danger or death or during an epidemic or war and as a result, such person is prevented from making a will in any of the other ways as detailed above, then they may make an oral will. To do this the following conditions must be met:

i.          The testator must declare his testamentary intentions regarding the disposition of his property before at least 2 witnesses who are present at the same time;

ii.         Such witnesses must promptly appear before the Chief District Office and state before such officer the testator’s testamentary dispositions that were given verbally before them. When appearing before the Chief District Office the witnesses must also inform him of the date and place where the oral will of the testator was given along with the exception circumstances under which the will was made, i.e. in a war zone and during a battle.

iii.        The Chief District Office will then record the statements of the witnesses and the witnesses must then sign their names on the statement or if they are unable to sign they can affix their finger print on the document.

Note: This type of will has a strict time limit in that it will expire one month after the testator has been placed in a situation where they are able to make a will on any of the above prescribed manner. Hence, if a soldier was placed in an exceptional situation such as an isolated battle and in such situation they were unable to make a will in the other prescribed ways and as such they gave their will orally to 2 visiting journalists who were visiting the battlefield who subsequently informed the Chief District Office of the testator’s intentions then such will would be void in 1 month of the soldier leaving the battlefield/ immediate war zone and being able to use other methods for making their will.

 

Type 5 – Will by Secret Document

A testator can also make a will by secret document. The requirements for this type of will are as follows:

a.         The testator must sign their name on the document which details their testamentary dispositions;

b.         The testator must physically seal such document (i.e. put in an envelope) and sign their name across the place of closure;

c.         The testator must produce the sealed document to the Chief District Officer in the presence of at least 2 suitable witnesses and declare to all of them that the sealed document contains his testamentary dispositions. Furthermore, if the testator has not written the document entirely himself in his own handwriting then he must also inform the witnesses and the Chief District Officer of the name and address of the writer of the testator’s will.

d.         Following the Chief District Officer noting down on the cover of the sealed document (i.e. the envelope) the declaration(s) of the testator and the date that the sealed will was produced, the Chief District Officer will then affix his seal to the sealed will of the Testator and then sign and the 2 witnesses shall also sign the sealed document (i.e. the envelope).

Note: Thai law makes a number of exceptions as to who can act in the stead of a Chief District Officer with respect to making wills under Type 3, 4 or 5 (above). For example, if Thailand is engaged in an armed conflict or war then in such case, if a person is serving in the Royal Thai Armed Forces and they wish to make a will according to type 3, 4 or 5 as the case may be, then a military officer or official of commissioned rank has the same powers and duties as those of the Chief District Officer.[32]

 

How can a Thai citizen make a will if they are living outside of Thailand?

According to Thai law, if a Thai subject wishes to make his will in a country outside of Thailand then such citizen can make it according to the legal requirements of the jurisdiction they are making it in or in accordance with the requirements prescribed by Thai law. [33]

If a Thai citizen who wishes to make a will by Public Document (type 3) whilst overseas, then they can do so before a suitably authorized Thai diplomatic officer at a Royal Thai Embassy or Consulate provided that such diplomatic officer is acting within the scope of their authority.[34] If this approach is to be used, it would be advisable to check with the Thai Ministry of Foreign Affairs to understand which diplomatic officers are authorized to act in this capacity at a particular overseas diplomatic mission.

Recommendation: If a Thai citizen has assets in both Thailand and overseas it may be sensible to have a separate will for Thailand and a different will for the other jurisdiction(s) where their property is situated as each jurisdiction may have different legal requirements for a will and as such if a will it made according to the law of one jurisdiction it may not comply with the law of the other jurisdiction and thus may not be able to be adhered to by the executor of the estate.

 

Wills - General Information

Who cannot inherit under a will?

The writer of a will or a witness to a will (nor their spouse) cannot inherit under the will.[35]

 

Capacity Requirements of Testator, Legatee and Witnesses

The mental capacity of a testator must be considered only as of the time that they made their Will.

However, with respect to a legatee under a will, their capacity is only to be considered as of the time that the testator dies. [36]

 

In relation to the witnesses of a will, the following types of persons are not legally able to act in this capacity:

1.         Persons who are not considered as legally competent;

2.         Persons of unsound mind or who have been adjudged as being quasi incompetent;

3.         Persons who are deaf, or dumb or blind.[37]

 

Revocation and Lapse of a Will or a clause in a will

 

Interpreting a Will

Creditors:

The Creditors of a testator are entitled to claim cancellation of any testamentary disposition creating a foundation only in so far as they are prejudiced thereby.[38]

A legacy made under a will to a creditor of the testator is presumed not to be made in payment of the debt due to such creditor.[39] Hence, if the presumption is to be rebutted then the Will should expressly state that the testamentary legacy is to go towards the satisfaction of the debt owed to such creditor.

General Interpretation of a Will

Where a clause in a will is vague in that it could be interpreted in several ways, the way which best assures the observance of the intention of the testator shall be preferred according to Thai law.[40] In determining the intention of the testator, the writer recommends that various types of evidence would be useful including evidence from other parts of the will which are not vague, evidence of the writer of the will who took drafting instructions from the testator etc.

If the testator has made a will and made a legacy by describing a legatee in such a way that there are several persons matching the description of the legatee then if the matter cannot be clarified then all such matching persons shall be entitled to inherit the bequeathed legacy in equal shares.[41]

Recommendation: Given, section 1685 of the Civil Code (above) it would be sensible for each legatee mentioned under a will to be clearly identified in the document by mentioning their full legal name, address, and other identifying features such as their ID card/passport number etc, this way the intentions of the testator can accurately be followed.

 

The Funeral of the Deceased:

Who has power to arrange?

The administrator under a will (i.e. executor) has the power and the duty to arrange for the funeral of the deceased unless the deceased has appointed another person to handle this purpose.[42] If there is no administrator 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 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.[43]

Costs and expenses of funeral:

If the funeral of the deceased is delayed for any reason then the person who is empowered to arrange 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. In determining what is ‘reasonable’ one should be aware that consideration will be given to the deceased’s station in life, moreover the amount reserved for the funeral cannot prejudice the rights of the deceased’s creditors. [44]

Example: If a deceased person had many valuable assets but had significant debts and their funeral was delayed due to an investigation into the cause of their death then the amount of money reserved for their funeral by their administrator would likely need to be sufficient to reflect their wealth & social status in society but the amount of funds reserved must not undermine the deceased’s creditors from obtaining repayment of the monies owed to them hence the size and expense of such funeral may need to be scaled down to ensure that creditors’ rights are not unfairly prejudiced by this expenditure.

 

Wills – Revocation & Lapse

A testator can at any time revoke his will entirely or partly.[45] However, if a previous will is to be revoked wholly or partly by a will made later then such revocation is only legally effective if the latter will is made according to law.[46]

 

A disposition under a will is revoked if the testator has intentionally already made a valid transfer of the property which is the subject of the will. Moreover, the same rule applies if the testator has intentionally destroyed such property.

 

A testamentary disposition under a will lapses under the following situations:[47]

1. If the legatee dies before the testator;

2. If the testamentary disposition is to take effect on a condition being fulfilled and the legatee dies before its fulfilment, or it becomes certain that the condition cannot be fulfilled;

3. If the legatee refuses the legacy;

4. If the whole property bequeathed is, without the intention of the testator, lost or destroyed during his lifetime and the testator has not acquired a substitute or a claim for compensation for the loss of such property.

 

Nullity of a Will or a Clause in a Will:

A will made by person who has not yet reached the age of 15 is void.[48] Moreover, a will made by a person adjudged incompetent is void. [49]However, a will made by a person who is alleged to be of unsound mind but not adjudged incompetent may only be annulled if it is proved that at the time they made their will the testator was actually of unsound mind.[50]

If a testamentary disposition in a will appoints a legatee subject to the condition that the legatee must in turn dispose of the bequeathed property in favor of a third person, such condition shall be deemed as  non-existent.[51]

After a testator has died, any interested person is entitled to apply to the court to have the will cancelled due to duress, however if the testator continues to live for more than 1 year after he has ceased to be under the influence of duress then such application by an interested person cannot be made.[52]

 

Prescription Period (Time Limitations/ Restrictions) for Cancellation Actions:

No legal action for cancellation of a testamentary disposition (the bequeathing of property to an heir by will) can be entered (i.e. filing a lawsuit) later than:

1. – Three (3) months after the date of the death of the testator if the grounds/reason for cancellation were known to the plaintiff during the lifetime of the testator;

2. – Three (3) months after the plaintiff has acquired knowledge of such ground in any other case.

However, if such testamentary disposition affecting the interests of the plaintiff is unknown to him, even though the grounds for cancellation were known to him the period of 3 months shall run from the moment when such disposition is known or ought to have been known by the plaintiff.

In any case, such cancellation action cannot be entered into later than ten (10) years after the death of the testator.[53]

 

Administration & Distribution of an Estate

Appointment by Testator

An administrator of an estate (i.e. the Executor) will include those person(s) who are appointed by a will or by order of the court.[54]

An administrator of an estate which is by will, may be appointed by

  1. The testator himself; or
  2. The person nominated for the purpose in the Will of the testator.[55]

Issue re More than One Administrator:

A testator may appoint one (1) or more persons to be an administrator of his estate.[56] However, unless otherwise provided in the Will, if more than one (1) person has been appointed to act as an administrator and because some of them are unable or unwilling to act in this role, then is only one (1) person willing to act as the administrator then such individual is solely entitled to act as administrator. However, if there remain several persons willing to act as administrators it is legally presumed that they cannot act separately.[57]

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.

 

Acceptance or Rejection of Administratorship

At any time within one year from the death of the testator but only after 15 days from the date of the death, any heir or interested person is entitled to give notice requiring any person appointed as administrator by will to declare whether they accept or refuse the administratorship. If a person so notified does not declare his acceptance within one (1) month from receipt of such notice then then he shall be deemed to have refused the administratorship. One should also be aware that acceptance cannot be made after one (1) year from the death of the testator unless by permission of the Court.

 

Appointment of Administrator by the Court:

Any heir or an interested person or the public prosecutor can apply to the Court to appoint an administrator of the estate in the following cases:[58]

  1. If on the death of the testator any statutory heir or legatee is not to be found or is abroad or is a minor;
  2. If the administrator of the estate or the heir is unable or unwilling to carry on or is impeded in carrying on the administration or distribution of the estate;
  3. If a testamentary disposition appointing an administrator of the estate has no effect for any reason whatsoever.

Such appointment will be made by the Court in accordance with the provisions of the will (if any). Failing such provisions, the Court may make an appointment for the benefit of the estate, having regard to the circumstances and taking into consideration the intention of the deceased testator as the Court thinks fit.

The functions of a court appointed administrator commence from the date that the order of the court is heard or is deemed to have been heard. [59]

 

Persons Unable to be an Administrator of an Estate:

The following types of persons are unable to be an administrator of an estate:[60]

  1. A person who is not sui juris (i.e. a minor cannot be an administrator). According to section 19 of the Thai Civil and Commercial Code “a person on the completion of 20 years of age ceases to be a minor and becomes sui juris”;
  2. Persons of unsound mind or adjudged quasi incompetent;
  3. Persons adjudged bankrupt by the Court.

 

Administrator Resignation & Discharge:

Any interested person may, prior to the completion of the distribution of the estate, apply to the Court for the discharge of an administrator for reason of neglect of his duties or any other reasonable cause.[61]

Even after having assumed his functions, the administrator may resign for any reasonable cause subject, however, to him obtaining the permission of the Court.

If no inventory is made by the administrator in due time 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, the administrator may be discharged by the Court.[62]

 

Rights and Duties of an Administrator (including Remuneration for acting as Administrator)

  • The administrator of an estate shall take proper steps to seek for the interested person and shall notify them within a reasonable time of the testamentary dispositions concerning them.[63]
  • The administrator of an estate has the right and duty to do all such acts as may be necessary for complying with the express or implied order in the will and for the general administration or distribution of the estate.[64]
  • The administrator of an estate cannot, unless permitted by the will or the court, enter into any juristic act (legal act) where he has a conflict of interest which conflicts with the interests of the estate.[65]
  • An administrator of an estate is not entitled to receive remuneration out of the estate unless permitted by the will or by a majority of the heirs.[66]
  • The administrator of an estate must act personally when carrying out his functions unless he 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.
  • 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.
  • The administrator of an estate must perform his duties and complete the account of management and distribution within one (1) year from the dates specified in the Sections 1728, unless the period of time is otherwise fixed by the testator, by a majority of the heirs or by the Court.

 

Administrators Liability to the Heirs:

The administrator of an estate will be liable to the heirs in accordance with the following sections of the Civil & Commercial Code:

  • Section 809 - If required by principal, the agent must at all reasonable times give information as to the conditions of the matter entrusted to him. He must render an account after the agency has come to an end.
  • Section 810 - The agent must hand over to the principal all the moneys and other properties which he receives in connection with the agency.
  • Section 811 - If the agent has used for his own benefit money which ought to have handed over to the principal or to have used for the principal, he must pay interest thereon from the day when he used it for his own benefit.
  • Section 812 - The agent is liable for any injury resulting from his negligence or non-execution of agency, or from an act done without or in excess of authority.
  • Section 819 - The agent is entitled to retain any property of the principal in his possession by reason of agency until he has been paid all that is due to him on account of agency.
  • Section 823 - If an agent does an act without authority or beyond the scope of his authority, such act does not bind the principal unless he ratifies it.
  • Section 831 - The extinction of agency cannot be set up against a third person acting in good faith, unless the third person is ignorant of the fact through his own negligence.

 

No approval, release from liabilities or any other agreement concerning the account of management provided in Section 1732, shall be valid unless such account has been delivered to the heirs together  with any document relating thereto not less than five years after the termination of the administratorship.[67]

Heirs and Third Parties:

The heirs are bound to third parties by acts which the administrator has done within the scope of his authority by virtue of his administratorship. However, they are not bound by a juristic act entered into by the administrator with a third party if such juristic act was entered into for consideration of any property or other advantages given for his personal benefit or so promised to him by the third party, unless the heirs give their consent.

Inventory Issues

Where an administrator is appointed by the Court for a particular purpose, he is not required to make an inventory of the estate unless the inventory is required for such purpose or by an order of the Court.[68]

 

The administrator of an estate must begin making an inventory of the estate within fifteen (15) days:[69]

  1. From the death of the testator if, at such time, the administrator has knowledge of his appointment under the will entrusted by the Court.
  2. From the date when the administrator has knowledge of his appointment by the Court beginning from the date that the order of the Court is heard or deemed to have been heard (if they are appointed by the Court), or
  3. From the date of his acceptance of administratorship in any other case.

 

The administrator of an estate must have the inventory of the estate finished within one (1) month from the starting date (as prescribed immediately above); but this period of time may be extended by permission of the Court on application made by the administrator before the expiration of the month. The inventory shall be made in the presence of at least two (2) witnesses who must be persons interested in the estate.

The following types of persons cannot be witnesses for the making of any inventory under the provisions of this Code.[70]

i.          A person who is not sui juris (i.e. a minor cannot be an administrator). According to section 19 of the Thai Civil and Commercial Code “a person on the completion of 20 years of age ceases to be a minor and becomes sui juris”;

ii.         Persons of unsound mind or adjudged quasi incompetent;

iii.        Persons who are deaf, dumb or blind.

 

If no inventory is made by the administrator in due time 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, the administrator may be discharged by the Court.[71]

 

Realization of Assets, Payment of Debts and Distribution of an Estate

Creditors:

  1. The creditors of an estate are entitled to be paid only out of the property of an estate.[72]
  2. A creditor of the estate may enforce his claim against any heir. However, where there is an administrator of the estate, he must be summoned by the creditor to appear in the action.[73]
  3. So long as all the known creditors of the estate or legatees have not been satisfied by the performance or distribution of the estate, the succession is deemed to be under management. During such period, the administrator is entitled as such to do the necessary acts of management such as to enter actions or to submit answers in Court and so on. The administrator must take all necessary steps to collect the debts due to estate within the shortest possible time. After the creditors of the estate have been satisfied the administrator must divide the estate.[74]
  4. Before the division of the estate the creditor of the estate may enforce full payment of his claim from the estate. In such case each heir may, up to the time of division inclusively, require that the performance be made out of the deceased testators estate or secured there from.[75] After the division of the estate, the creditor may claim performance from any heir up to the extent of the property received by him. In such case an heir who has made performance to the creditor in excess of his proportionate share in the obligation has a right of recourse against other heirs.[76]

 

Order of Preference for Payment of Debt from Estate:

Without prejudice to the creditors having special preferential rights under the provisions of the Civil & Commercial Code or other law and to the creditors secured by pledge or mortgage, the debt due by the estate shall be paid in the following order and in accordance with the provisions of this Code concerning preferential rights:[77]

  1. Expenses incurred for the common benefit of the estate;
  2. Expenses incurred for the funeral of the deceased testator;
  3. Taxes and rates due by the estate;
  4. Wages due by the deceased testator to any clerk, servant or workman;
  5. Supplies of daily necessaries made to the deceased testator;
  6. Remuneration to the administrator.

 

Order of What Property must be used first for Payment of Debts:[78]

Unless otherwise provided by the deceased testator or by law, his property shall be appropriated to the payment of debts in the following order:

  1. Property other than immovable property
  2. Immovable property expressly appropriated to that purpose by will, if any;
  3. Immovable property to which the statutory heirs are entitled as such;
  4. Immovable property bequeathed to a person upon the condition that he shall pay the debts of the deceased testator;
  5. Immovable property bequeathed under general title as provided by Section 1651 (bequeathed to a statutory heir or legatee);
  6. any specific property bequeathed under a particular title as provided by Section 1651 (bequeathed to a statutory heir or legatee);

Any property appropriated under the foregoing provisions shall be sold by way of public auction, but any heir may prevent such sale by paying, to the extent required for the satisfaction of the creditors, the value of the whole or part of the property as may be determined by an appraiser appointed by the Court.

 

Distribution to Heirs:

The administrator is not bound to deliver the estate or any part thereof to the heirs before one (1) year has elapsed from the death of the deceased testator unless all the known creditors of the estate and legatees have been satisfied by the performance and distribution.

 

Obligations on Heirs to Administrator:

The heir is bound to disclose to the administrator all the properties and debts of the deceased known to him[79]

Vacant Estates:

Subject to the rights of the creditor of the estate, where on the death of a person, there is no statutory heir or legatee or creation of foundation under a will, the estate devolves on the state (i.e. Thai Government).[80]

Prescription (Time Limitations):

Time Limits on Statutory Heirs for Legal Actions Concerning Inheritance:

An action concerning inheritance cannot be entered later than one (1) year after the death of the de cujus or after the time when the statutory heir knows or ought to have known of such death.[81]

 

Time Limits on Legatees (i.e. heir under Will) for Legal Actions Concerning Inheritance:

An action concerning a legacy cannot be entered later than one (1) year after the time when the legatee knows or ought to have known of the rights to which he is entitled under a will. Subject to the provisions of Section 193/17 of this Code, a creditor having against the deceased testator a claim which is subject to a prescription longer than one year is barred from bringing an action after one (1) year from the time when he knows or ought to have known of the death of the deceased testator.

 

Overall Ten (10) Year prescription Limit:

In no case shall claims under the foregoing paragraphs be entered later than ten (10) years after the death of the de cujus.

 

Inheritance Act (2015) - Key Provisions

Section 11 - Subject to section 12, the following persons who receive an inheritance shall be persons liable to pay tax under the provisions of this Act:

(1)  a person of Thai nationality;

(2)  a natural person of non-Thai nationality who takes up residence in the Kingdom under the law on immigration - This may apply to you depending on your residence status.

(3)  a person of non-Thai nationality who receives an inheritance being a property situated in Thailand. In the case where the inheritor is a juristic person, the juristic person that is registered in Thailand, or that is formed under Thai law, or whose shares of more than fifty per cent of the paid-up registered capital are held by persons of Thai nationality at the time of entitlement to the inheritance, or that more than one half of the total number of the members of the body empowered to manage its business are of Thai nationality, shall be deemed as a person of Thai nationality.

In case of (3), if, at the time of the de cujus’s death, the inherited property is situated in Thailand, regardless of its subsequent change, such property shall be deemed situated in Thailand, and the inheritor thereof still has the duty to pay tax in accordance with section 12.

 

Section 12 - A person receiving an inheritance from each de cujus, irrespective of whether he or she receives it on one or several occasions, and provided that the aggregated value of inheritance received from every de cujus exceeds one hundred million baht, must pay tax only on the excess of the value over one hundred million baht.

The value of inheritance under paragraph one means the value of all properties inherited deducted by the amount of debt assumed from such inheritance.

The value of inheritance under paragraph one shall be reconsidered every five years. In such consideration, regard shall also be had to the rate of change in consumer price index calculated by the Ministry of Commerce for official use in that period of time. The re-determination of value of inheritance shall be made by enactment of a Royal Decree.

 

Section 14 - Taxable inheritances are the following properties:

(1)          immovable property;

(2)          securities under the law on securities and exchange;

(3)          deposits or any other money of the same nature over which the de cujus has the rights to withdraw or claim from the financial institution or the person who has received such money;

(4)          vehicles with registration evidence;

(5)          financial property additionally prescribed by Royal Decrees

In case of inheritors under section 11 (1) and (2), tax shall be paid on property situated both inside and outside of Thailand. In case of inheritors under section 11 (3), tax shall only be paid on property situated inside of Thailand. The determination as to whether a property is situated in Thailand shall be as prescribed by Ministerial Regulation.

 

Section 15 - The value of property shall be calculated on the basis of its due price or value on the date on which the property is inherited, as follows:

(1)  in case of immovable property, it shall be the assessed price of immovable property for the purpose of collecting fee for right and juristic act registration under the Land Code deducted by the amount of eviction in accordance with rules prescribed by Ministerial Regulation;

(2)  in case of securities listed on the Securities Exchange of Thailand, it shall be the price of such securities at the closing time of the Securities Exchange on the date of inheritance;

(3)  in other cases, it shall be in accordance with the rules prescribed by Ministerial Regulation, but such rules shall be prescribed in a general manner and without being specific in nature.

If it is necessary to convert foreign currency into Thai currency, it shall be computed based on the exchange rate and in accordance with rules and procedure prescribed and published by the Revenue Department.

 

Section 16 - A person liable to pay tax shall calculate and pay tax at the rate of ten per cent (10%) on the portion of value of inheritance taxable under section 12. However, if the inheritor is an ascendant or a descendant, the tax shall be paid at the rate of five per cent (5%)




[1] S. 1603

[2] S. 1601

[3] S. 1605

[4] S.1606

[5] S. 1607

[6] For a list of statutory heirs see section 1629.

[7] S. 1608

[8] S. 19

[9] According to s.32 of the CCC this means a person who has a physical or mental infirmity, or who is periodically or habitually intoxicated or who suffers from other similar causes which results in them being incapable of managing their own affairs or if their management of their affairs would likely cause detriment to how own property of family. In such cases the person may be adjudged as being quasi incompetent by the Court if an application is made by their spouse, parents, children, guardian, curator or the person taking care of them, or the Public Prosecutor (see section 28 of CCC).

[10] S. 1610.

[11] S. 19

[12] S. 1612

[13] This Government official is at the District office.

[14] S. 1613

[15] S. 1615

[16] S. 1618

[17] S. 1618

[18] S. 1620

[19] S. 1621.

[20] S.1754

[21] S. 1623

[22] S. 1627

[23] S. 1628

[24] S.1637

[25] S. 1656

[26] S. 1671

[27] S. 1657

[28] S.1657

[29] S. 1658

[30] S. 1659

[31] S. 1663

[32] S. 1669

[33] S. 1667

[34] S. 1667

[35] S.1653

[36] S. 1654

[37] S. 1670.

[38] S. 1680

[39] S. 1683

[40] S. 1684

[41] S. 1685

[42] S. 1649

[44] S. 1650

[45] S. 1693

[46] S. 1694

[47] S. 1698

[48] S. 1703

[49] S. 1704

[50] S. 1704

[51] S. 1707

[52] S. 1708

[53] S. 1710

[54] S. 1711

 

[55] S. 1712

[56] S. 1715

[57] S. 1715

[58] S. 1713

[59] S. 1716.

[60] S. 1718

[61] S. 1727

[62] S. 1731

[63] S. 1725

[64] S. 1719

[65] S. 1722

[66] S. 1721

[67] S.1733

[68] S.1714

[69] S 1728

[70] S.1729 (refer to s. 1670)

[71] S. 1731

[72] S. 1734

[73] S. 1737

[74] S.1736

[75] S. 1738

[76] S.1738

[77] S. 1739

[78] S. 1740

[79] S. 1735

[80] S. 1753

[81] S.1754