Foreigners living in Thailand often require the same personal legal documents with the same content. They want to marry a Thai national and want to protect their personal assets through a prenuptial agreement. They want to divorce a Thai national and need a divorce settlement agreement. They want to leave certain assets in Thailand to a Thai national and want to make last will and testament. Or they want a power of attorney to appoint another person in Thailand to act as their agent on their behalf. Often these documents are more or less standard documents and foreigners do not need to visit a Thai lawyer in his office to obtain such documents. Samuiforsale กฏหมายไทย isn’t simple

• Thai Last Will and Testament
• Thai Prenuptial Agreements
  
• Thai Divorce Agreements
• Thai Power of attorney service

Last will and testament

If you have definite ideas on how you require your estate in Thailand to be distributed when you die then you must make a last will and testament. A last will insures that your assets are given to those who you have entrusted your estate to upon your death. If you are a foreigner with assets in Thailand and you do not have a last will governing your assets in Thailand your wishes may not necessarily be carried out and international private law and statutory inheritance laws shall determine what happens to your properties in Thailand when you die.

Foreigners with assets in Thailand are generally permitted to dispose of their Thai assets according to a 'last will and testament' made in another country. Foreigners may also choose to make a last will and testament specifically for assets in Thailand, excluding assets in other countries through a limited jurisdiction clause in the will. The execution of a last will or distribution of an estate requires a Thai court procedure and approval in which an executor/ administrator of the estate will be appointed or will be given permission to wind up the foreigner's estate in Thailand. A Thai will could dispose of properties in Thailand separately and differently from assets in other countries.

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Prenuptial agreements

A prenuptial agreement in Thailand (before marriage) is a contract governing personal and marital property of husband and wife and is entered into by two people planning to marry. The content of a prenuptial agreement under Thai law primarily includes financial arrangements and provisions for personal assets, management of joint assets and the potential division of common assets should the couple divorce. A prenuptial agreement must be made prior to the marriage and entered into the marriage register simultaneously with the marriage at the government office (amphur) where the marriage takes place or it will be void and the civil code sections 1465 to 1493 (the statutory matrimonial property regime) will govern the terms of property of husband and wife.

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Divorce and divorce settlement agreement

A divorce in Thailand can be quick, simple and hassle free if both parties agree to divorce and agree on the terms of the divorce. In the case the couple agree to divorce and there is no disagreement on the division of properties and matters like child custody, both parties can present themselves at a local amphur in Thailand and apply for a divorce. A divorce in Thailand on mutual consent is quick and easy. Before you turn up at the local amphur it is recommended to have a divorce settlement agreement prepared by a qualified lawyer.< A divorce settlement agreement covers all important legal aspects of the divorce and arrangements between the parties.

If husband and wife want to divorce but cannot agree on the terms of the divorce they must follow a court divorce procedure and they each must obtain the service of a lawyer who will represent them at the court. This is a more costy and time consuming procedure to divorce and requires several court appearances. In a contested divorce the court will end the marriage and among others divide the couples assets and debts according to the law and individual circumstances.

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Power of attorney

A power of attorney lets you appoint someone you trust to manage important matters on your behalf. A power of attorney is used to hand over control of your affairs to another person. The 'principal' empowers another individual 'attorney-in-fact' to act on his behalf. The attorney in fact takes control of the principal’s business and legal dealings subject to the power of attorney. A power of attorney in Thailand can be used for short-term specific transactions which the principal cannot handle himself, or can continue in the event that the principal becomes incapacitated or mentally ill. Government bodies in Thailand often require their own specific standard power of attorney (in Thai script) when someone is acting on behalf of another person in official procedures.

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Real rights in Thailand are basically property rights attached to a real property as opposed to contract rights which are in essence attached to a specific person or persons. The real rights of usufruct, superficies, habitation and servitude have 'droit de suite', meaning if the property is transferred (e.g. through succession, bankruptcy or sale) these rights follow the property and remain in full force against the new owner or any other third party. The second principle of these rights is called 'droit de priorite', meaning that when several rights are recorded on the same property the older real right has priority above the newer right. No real right is complete (enforceable) unless made in writing and registered by the competent official (meaning in Thailand the official Thai Land Registry).

samuiforsale

• Usufruct contract
• Superficies contract
• Habitation contract
• Servitude contract

Usufruct contract

The right of usufruct refers to the rights granted under the Civil and Commercial Code sections 1417 to 1434 whereby the owner of an immovable property (condominium, land and/or house) grants to another person for a limited period of time the right of possession, use, enjoyment, management and the benefits ('fruits') the property may produce. Some describe usufruct as a form of temporary ownership or a life estate.

The right of usufruct is an immovable property right and can be obtained by legal agreement with the owner of the property. The right of usufruct contract must be in writing and registered on the title deed at the local land office to be complete and enforceable. The Thai script version of the usufruct contract will be recorded as a 'memorandum of usufruct' in the official registers of the land office and noted on the backside of the land title deed copy of the owner and on the Land Registry's original. Usufruct follows the freehold title of the land and is not terminated on transfer of the land (e.g. at bankruptcy, transfer of ownership or death of the 'naked' owner of the property). The right of usufruct can be granted for a period of time, up to 30 years, or for the duration of a person or persons' life. Usufruct is a right granted to a specific person or persons, and in any case comes to an end at death of the person or last person granted the right of usufruct.

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Superficies contract (granting the right of)

The Right of Superficies is a transferable and inheritable interest in land to own or acquire buildings construction in, on or above the land owned by another for a specified term. The right of superficies legally separates ownership of anything on or in the land (a structure or plantations) and ownership of the land itself. The right of superficies can be registered as a separate right or in combination with a land lease. A right of superficies and land lease registered on the land title deed is the recommended structure to protect a long term (30-year) land leasehold property investment in Thailand.

The right of superficies can be obtained by agreement with the land owner and must similar to a usufruct be registered on the land title deed by the Land Registry. As a registered right it follows the freehold title of the land and is enforceable against third parties and future (transferee) land owners. The right of superficies may be created either for a period of time up to 30-years, or for life of the owner of the land or the superficiary. If created for a period of time the right of superficies may be renewed upon expiration (Section 1412 Civil and Commercial Code).

The person granted the right of superficies has the right to transfer the right of superficies, and, if registered for a period of time, is transferable by way of inheritance.

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Habitation (right of)

The right of habitation concerns only the right to dwell in a house. The grantee of the right of habitation does not pay rent to the grantor. If there is rental payment made, the matter becomes a rental (tenancy). A right of habitation may be created for either a specific period of time or for the lifetime of the grantee. In case the rights are granted for a specific time period, the law states that such a period may not exceed 30 years; if a longer period is fixed, it shall be enforceable for only 30 years. The right of habitation may be renewed for a period not exceeding 30 years from the time of renewal. Lastly, the right of habitation is not transferable, also not by way of inheritance.

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Servitude contract

Servitude in the form of a 'right of way' is the Thai legal equivalent of an English easement. It is s a non-possessory interest in land. Servitude is governed by the Civil and Commercial code sections 1387 to 1401. Section 1387: 'An immovable property may be subject to a servitude by virtue of which the owner of such property is bound, for the benefit of another immovable property, to suffer certain act affecting his property or to refrain from exercising certain rights inherent in his ownership'. Servitude usually involves two or more separate properties/ plots of land, one of which is burdened and the other benefited by the servitude. The burdened parcel is called the servient property and the benefited parcel the dominant property.

Servitude in Thailand can involve several kinds of benefits and burdens, but usually it involves the use of neighboring well, the use of an access road over adjoining land plots, laying irrigation ditches, laying pipelines or utilities over neighboring plots, but it can also impose building restrictions on a neighboring land plot. A registered right of servitude as a right of way is an important right in case a plot of land is surrounded by other plots without direct access to a public road. In this case a right of servitude registered over adjoining plots guarantees uninterrupted access to dominant property. 

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Various juristic acts and rights concerning immovable properties must be in writing and in Thai script (with or without an English translation) and require registration by the competent authorities (i.e. the Land Department) to be complete and enforceable.

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