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Testament or Last Will
Testament or Last Will
Making A Will
A will is the instructions of a person or the testator regarding what to do with their assets or estate after they die. In Thailand, disposition of a deceased persons property and probating of their will is governed under the Civil and Commercial Code. You should have a will in order to ensure that your assets are distributed as you wish them to be, and to avoid problems and disputes among your heirs after your death.
A will may also contain instructions on how to dispose of your body when you die, what type of funeral you want, and who should be notified in the event of your death.
A will may also contain directions from you as to what to do if you are seriously injured and left in a vegetative state, whether to try extraordinary methods to revive you should you suffer heart failure or some other illness, and other such instructions.
You may designate the executor and indicate who should take care of any minor children in your will. While the Thai courts are not bound by these, it is your best opportunity to inform them and your heirs of your desires and intent. Without such instructions, others will make these decisions after your death without the benefit of your intent.
Once you write a will, you should review it periodically to verify that it continues to represent your intentions. A will can be revised at any time before the testator's death. To create a will, the testator must be at least fifteen years of age and have foil mental capacity. Although a will remains valid under Thai law even after marriage or divorce, it should be reviewed and modified as necessary to reflect the change in circumstances.
In most cases a will must be in writing and is valid when the testator signs it in the presence of two witnesses who are over twenty years of age and are of full mental capacity. An oral will may be made in time of war and under special circumstances.
Foreigners should definitely have a written will. It can be a simple document written in either Thai or your native language or both.
Authenticated wills that have been written outside of Thailand may be accepted in Thai courts, but must be translated into Thai. Under Thai Law, probate (the process of disposing of the deceased's estate) and trusts do not exist. You may want to make a will to distribute your material goods in each country in which you have assets. In this case, each will needs to address the assets that you own in that country only.
There is no inheritance or death tax in Thailand. However, if land or buildings and certain assets are to be transferred to beneficiaries, the Land Department will charge fees for the transfer.
Your funeral will be arranged by the person appointed as executor in your will, or a person who is specifically prearranged by you or your family.
Although making a will is a simple process, we suggest that you use a lawyer to assist you in drafting and executing your will in order to ensure that it complies with Thai law. Once a will is written, it should be kept in a safe place. This could be in your own possession, with someone you trust outside of Thailand, with a lawyer, or in a bank deposit box. You should also inform the appropriate people that you have a will and where it is located. If it is not known that you have a will, nobody will be able to execute your wishes.
Divorce With A Court Order
If your spouse refuses to give you a divorce or you cannot agree on the terms of settlement, you may go to court and obtain a divorce. Thai law requires that you establish grounds for a divorce before the court will grant the divorce.
Grounds For Divorce
Thai law sets out the following grounds for a divorce:
  • The husband has treated or honored another woman as his own wife, or the wife has committed adultery.
  • One spouse has committed a criminal offence or a serious act of misconduct. (Thai law does not define misconduct, but acts that shame the other spouse or subject them to insults or ridicule will suffice.)
  • One spouse has harmed the other or suffers from mental illness.
  • One spouse has deserted the other for one year or more.
  • Either party has lived separately for three years or more.
  • One spouse has disappeared for three years or more.
  • There is a lack of marital support from the other. (Thai law requires both parties to the marriage to support the other to the extent they are able to. If one party does not, it is grounds for. divorce.)
  • One spouse has been declared insane for more than three years and is not curable.
  • One spouse has broken the bond of good behavior. (Thai law allows the parties to a marriage to enter into an agreement of good behavior and define the terms within the agreement. If one party fails to live up to this agreement, it is grounds for divorce.)
  • One spouse has an incurable disease that may affect the other.
  • One spouse has a permanent physical handicap that makes it impossible to cohabit as husband and wife.
The process of petitioning the court for a divorce is complicated, so you will need to hire a lawyer. A lawyer can process the divorce in court and act on your behalf if you are living outside Thailand. To do so, you will need to provide him with a power of attorney.
You will have to supply your lawyer with the facts regarding your marriage, children (if any), assets, and pertinent dates and circumstances of the marriage. If you have a prenuptial agreement, it will be reviewed and considered in the Thai court. Remember that Thailand is considered a community property jurisdiction, so property acquired during the marriage is subject to division, with half going to each spouse. If you have considerable assets in your home country, and are seeking a divorce in Thailand, division of those assets will be very complicated and involve conflicts of law and other concepts outside the scope of this book. You will need the assistance of an attorney in Thailand and your home country to resolve these issues. Also, both parties are responsible for debts incurred during the course of the marriage.
If the parties cannot decide on a settlement agreement for the division of property, child custody and support, and other such matters, die court will decide for them. This is almost never a good resolution and will significantly increase the costs for obtaining the divorce. Fees for having this process done by a lawyer for a simple case can start at approximately 30,000 baht and exceed 100,000 baht depending on how complex the case is. It takes two months or longer to get a court order for dissolution. The lawyer will represent you in the preliminary hearings, but you may have to appear in court if the court orders you to do so.
A court order dissolves the marriage and the divorcing parties do not need to register their divorce. If there are other conditions that they want to register, they can do so in the presence of a registrar officer to finalize the divorce.
If you register your marriage in your home country, your divorce will need to take place there and will be processed according to the laws of your home country. You will need to consult with a lawyer from your home county to determine the steps necessary to get your divorce.
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