Americans Require a Will While Living Abroad. Case of Thailand
November 14, 2012 By Cathy Tran Reck & Associates Ltd.
Advancement of modern technology allow people to migrate effortlessly across borders in increasing numbers in this century. People live and work outside their home country, and some adapt to their adopted homes by having their families abroad. Expatriates have a unique myriad of concerns about their assets in their adopted country in the event of death. The inevitable question is: Do I need a will while I am living abroad?
In short, it depends. Thailand is a case in point in this article.
Having a will or not depends on whether the majority of your assets are in the foreign country and whether you have it distributed in a manner that is unconventional or different than what the law would normally dictate if you die intestate - or without a will.
If you have assets in Thailand and the you do not want the Thai government to manage the distribution of your assets after your demise, then you do need a will. If you have assets in general and you do not want it to pass intestate, then again the answer is yes you do need a will. Thailand is no exception to the rule and most long term residents have a binding, enforceable will to not only control their remaining assets but also to dictate how to manage their remains, specific instructions on medical decisions, and on any specific requirements that they want taken care of in the worse situation.
For long term Thai residents who may not be Thai nationals, the most common will in Thailand is a will made pursuant to section 1656 of the Civil Code (Inheritance).
Section 1656: A will may be made in the following form, that is to say, it must be in writing, dated at the time of making, dated at the time of making of the will and signed by the testator before at least two witnesses present at the same time who shall then and there sign their names certifying the signature of the testator. No erasure, addition or other alteration is valid unless made in the same form as prescribed by this section.
Making a Thai will. If you make a Thai will you must ensure that your foreign will excludes Thailand and that any subsequent last will you make in another country does not supersede the testamentary dispositions under your Thai will.
What to include. You want to make a specific or general will but are not sure where to start? The list below includes the kind of information you need to consider.
Personal information of the testator
Full name, date of birth, address, nationality, passport number;
Heirs: details of the heirs, full names, dates of birth, address, nationality, substitutes in case the heir(s) predecease the Testator;
Executor of the will (the job of an executor is to administer your estate);
Names and addresses of executors (most married people choose their spouse as the executor if they are giving their entire estate to their spouse). You can appoint one executor and a substitute executor if the executor predecease, however they must be appointed by the court;
Witnesses of the will;
Full name and details of ID-card or passport;
Funeral requirements;
What should happen to your body when you die;
Specific legacies, money or property that you give to someone after you die (not included in a general will). Do you wish to give any jewelery cash legacies? If so state amount of gift, full name and address of legatees (including charities).
Residue (residuary beneficiaries), where is the rest of your estate (your residue) to go? Provide details of who you wish to inherit the residue of your estate including the respective shares or percentages. Names of any substitute beneficiaries of residue if the above named predecease you.
Finally, it depends on your net worth or your valuation of your net worth at the time of your death. Drafting a will may be a pointless and expensive endeavor if you have little assets or if your assets reside in another country. For instance, if you are an American living in Thailand and most of your assets are in America, then you may need to draft a will that is executed in America and not in Thailand. There are a myriad of legal issues attached to documents that are executed abroad (i.e. jurisdiction, witnesses, conflict of law, and procedure). Saying that though, the best course of option is to draft a foreign will where you refer to the other will as incorporated as one executed instrument. There is no guarantee that it will not be contested by your family but it is one step in protecting your interest.
ABOUT THE AUTHOR: Cathy Reck
U.S. lawyer currently based in Bangkok, Thailand with limited office representation in Ho Chi Minh City, Vietnam. Licensed in California and a native Vietnamese speaker.
Copyright Cathy Tran Reck & Associates Ltd.
More information about Cathy Tran Reck & Associates Ltd.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
Having a will or not depends on whether the majority of your assets are in the foreign country and whether you have it distributed in a manner that is unconventional or different than what the law would normally dictate if you die intestate - or without a will.
If you have assets in Thailand and the you do not want the Thai government to manage the distribution of your assets after your demise, then you do need a will. If you have assets in general and you do not want it to pass intestate, then again the answer is yes you do need a will. Thailand is no exception to the rule and most long term residents have a binding, enforceable will to not only control their remaining assets but also to dictate how to manage their remains, specific instructions on medical decisions, and on any specific requirements that they want taken care of in the worse situation.
For long term Thai residents who may not be Thai nationals, the most common will in Thailand is a will made pursuant to section 1656 of the Civil Code (Inheritance).
Section 1656: A will may be made in the following form, that is to say, it must be in writing, dated at the time of making, dated at the time of making of the will and signed by the testator before at least two witnesses present at the same time who shall then and there sign their names certifying the signature of the testator. No erasure, addition or other alteration is valid unless made in the same form as prescribed by this section.
Making a Thai will. If you make a Thai will you must ensure that your foreign will excludes Thailand and that any subsequent last will you make in another country does not supersede the testamentary dispositions under your Thai will.
What to include. You want to make a specific or general will but are not sure where to start? The list below includes the kind of information you need to consider.
Personal information of the testator
Full name, date of birth, address, nationality, passport number;
Heirs: details of the heirs, full names, dates of birth, address, nationality, substitutes in case the heir(s) predecease the Testator;
Executor of the will (the job of an executor is to administer your estate);
Names and addresses of executors (most married people choose their spouse as the executor if they are giving their entire estate to their spouse). You can appoint one executor and a substitute executor if the executor predecease, however they must be appointed by the court;
Witnesses of the will;
Full name and details of ID-card or passport;
Funeral requirements;
What should happen to your body when you die;
Specific legacies, money or property that you give to someone after you die (not included in a general will). Do you wish to give any jewelery cash legacies? If so state amount of gift, full name and address of legatees (including charities).
Residue (residuary beneficiaries), where is the rest of your estate (your residue) to go? Provide details of who you wish to inherit the residue of your estate including the respective shares or percentages. Names of any substitute beneficiaries of residue if the above named predecease you.
Finally, it depends on your net worth or your valuation of your net worth at the time of your death. Drafting a will may be a pointless and expensive endeavor if you have little assets or if your assets reside in another country. For instance, if you are an American living in Thailand and most of your assets are in America, then you may need to draft a will that is executed in America and not in Thailand. There are a myriad of legal issues attached to documents that are executed abroad (i.e. jurisdiction, witnesses, conflict of law, and procedure). Saying that though, the best course of option is to draft a foreign will where you refer to the other will as incorporated as one executed instrument. There is no guarantee that it will not be contested by your family but it is one step in protecting your interest.
ABOUT THE AUTHOR: Cathy Reck
U.S. lawyer currently based in Bangkok, Thailand with limited office representation in Ho Chi Minh City, Vietnam. Licensed in California and a native Vietnamese speaker.
Copyright Cathy Tran Reck & Associates Ltd.
More information about Cathy Tran Reck & Associates Ltd.
View all articles published by Cathy Tran Reck & Associates Ltd.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
