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October 17, 2017

Last Will and Testament: Your Obligation For The Future… And Our Advice

When will you pass away? Whether fortunately or unfortunately, none of us really knows for sure and this is the argument for creating a last Will and testament to handle your affairs after death. We all know this, of course, yet as life rolls along so many of us put off creating a Will, often until it’s too late. Is it a question of confronting your mortality, procrastination, or lack of resources? You’ll see in this article that none of these excuses is as strong as the argument in favour of creating a Will.

What is a Last Will and Testament?

So many of us picture a Will as an instrument for a lonely and eccentric old gentleman to divide his fortune among squabbling relatives, often with a twist designed to prove which of them is the most worthy. This is the stuff of movies – a real last Will and testament is a tool for anyone to decide how his or her finances and assets will be distributed to loved ones, and also, in some jurisdictions, how dependent children will be raised and cared for.

When you make a Will, whether it applies to Thailand or another country, you essentially create the rules for your own money and dependents after your passing. If you die without a Will, then the State will dictate how your assets are divided and who will be responsible for your children and their future. This is an impersonal and generally undesirable situation that most of us would be more than happy to avoid. The way to avoid it is to make a detailed declaration of your intentions that will be legally binding after your death, so long as your requests do not break the law or infringe on the right of others (sorry, no knife battle between your two scheming cousins to see who will get your house!).

What Should be Included in a Last Will and Testament?

A Will is a legal document allowing you to dictate who will benefit from your assets upon your death and who will take responsibility for your dependents. When you write a Will, you are able to be quite specific about who will receive which part of your estate. As a testator, you can indicate any contributions to charity you’d like to make, personal gifts (such as a house or a watch) to any friends or relatives, and establish guardianship and trusts for your children. Without a legal will and testament, you will have no say regarding all of these actions. It must be pointed out that in Thailand, you can not decide in a Will who will be the guardian of your children. That is decided only by the Law or a Thai Court. Also, you cannot create a trust in a Thai Will but that doesn’t mean you cannot create a trust in a Will in a foreign country.

In your Will, you should name an executor, beneficiaries, and a guardian for any dependent children you may have. In Thailand, the executor is called the “administrator of estate”.

Administrator of Estate (Executor)

The administrator of the estate is the person or institution (such as a law firm or a company) that will execute your wishes according to your Will. It’s normal to select your spouse, an adult child, a friend, a relative or your lawyer as executor to your last will and testament. In Thailand, most people will appoint their main heir as administrator of estate if this person is an adult, however you are able to choose someone else if you wish.

An executor:

– collects and manages your assets after death

– distributes your assets according to what you’ve outlined in your will

– ays your outstanding debts and taxes from your estate

– notifies relevant government agencies (social security, taxes, etc.) and businesses (credit cards,

subscriptions, memberships, etc.) of your death

In Thailand, the powers of the administrator of estate are clearly defined by the Law. In other countries, it is common to state them in a Will to express exactly what the executor can or cannot do.

Beneficiaries (also called “heirs” or “legatees”)

Beneficiaries are the people and organizations to whom you as the testator bequeath your assets. You are able to be general (“I leave the whole of my estate to my husband”) or highly specific (“I leave a sum of 5000 USD to the World Wildlife Fund”) in your description of how your assets are to be divided. You can also request that certain assets be managed, as in a fund for your children to access upon reaching adulthood. Beneficiaries can be friends, relatives, organizations, and even total strangers provided they can be clearly identified and contacted.

Without naming beneficiaries in your last Will and testament, you don’t have any say over who will receive your assets. In such a case, the law would dictate who your legal beneficiary would be. Leaving an unclear Will or no Will can create grounds for fighting among your family members, and that’s certainly not a position that most people want to leave their family in.

Guardian for Your Dependent Children

If you die while you have dependent children (usually this means they are under the age of 18 but majority is 20 y-o in Thailand), you can select a person you trust to fill the role of guardian. If you have a spouse who survives you and who is also a guardian, then that spouse would automatically become sole guardian of your children. We must specify that you cannot appoint a guardian for your children in a Last Will in Thailand, but you can select a controller of property. The controller of property will manage the assets of your heirs if they are children until they reach majority. If you don’t appoint a controller of property and do leave some assets to children, their legal guardian (often a parent) will manage this property for them while they are minors.

However, it’s still best to include a guardian in your Will in any event, most especially if you are a single parent or sole legal guardian. Naming a guardian in your Will can ensure that people you know and trust will take care of your children in case of your untimely death.

Choosing a guardian is a task that deserves special consideration. People tend to name relatives, like the children’s grandparents, however it should be kept in mind that the children may need guardianship for longer than their grandparents may live. When considering a guardian, ask yourself:

– Is the person at an age and physical ability to care for your children?

– Will that person wish to take the role and become a parent to your children?

– Can the person provide your child with a safe, happy, and healthy environment?

– Does the person have the time and financial means to care for your children if you’re not able to leave

sufficient assets for this purpose?

It’s essential that you discuss guardianship with the person that you choose so that he or she knows exactly what would be required and would take on the role.

A last Will and testament is a powerful document which allows you to specify what will happen with your assets, your dependent children, gifts you wish to bestow on others, and management of your debts. In some cases it is wise to include descriptions of your assets and how to access them, as well as alternate beneficiaries and guardians in case your first choices pass away before they are able to fill these roles.

How do you Prepare a Last Will and Testament?

Drafting a Will can be quite simple or quite complicated, depending on the numbers of assets that you own and how these are going to be distributed to different beneficiaries. If your assets are in different countries, it could be a good idea to make a Will in each separate country. Just be careful that all these Wills are valid and that a Will one country does not void a Will in another country.

If you have only a few easy requests to bequeath your estate and name a guardian for your children, then you could easily draft your own Will following the specific guidelines of your state or country. However, if you are dealing with numerous beneficiaries, management of assets, and even setting up trust funds for your children, it’s wise to work with a lawyer to create your will. In Thailand, it is not expensive to consult professional to draft a Will. It will probably cost you less than 10,000 baht, including Thai and English translations, legal advice and other related services.

If you do write your own Will, it’s easy to find the rules and regulations governing this document from local government offices or through the internet, but it’s important to follow them carefully. Certain specifications can include writing your Will in an officially recognized language, writing the entire document by hand in a certain colour of ink, adding your own full name and signature, and not adding any text after your signature. Will must be signed, dated, and witnessed by people who are not beneficiaries of the Will and who therefore have no stake in the distribution of your assets.

Nevertheless, we would suggest you avoid using templates. Templates are impersonal and often not created by professionals, and laws change quickly. You can’t be sure that your template is up-to-date and fully valid. A Will should be designed according to your needs and should also be in a language that you understand. If you make a Will in Thailand, in Thai language and without a translation, how can you know that it is done according to your intentions if you can’t read Thai?

Your last Will and testament must be prepared and signed voluntarily at a time when you are of sound mind according to legal definition. In many jurisdictions, any previous Wills must be indicated in the most recent will in order to revoke the earlier documents. If this is not done, then earlier versions can be considered legal and can be used as grounds to challenge your last will.

Once you have created a last Will and testament it’s best to keep it in a safe place, most commonly with your lawyer. In many jurisdictions, some databases created by the State or Lawyers’ association can help you to trace a Will. Unfortunately, this is not the case in Thailand yet. You should also plan to update your Will, either after major life changes or once every five years to ensure that details are still how you would have them.

The creation of a last Will and testament is simply a responsible step to take to prepare yourself and loved ones for the eventuality of your passing. This document is easy to create and maintain, either on your own or with the help and advice of a lawyer. With just a little time invested, you can ensure that your estate is left to the right people and that your children are cared for by a responsible person of your choice.

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