12 replies to this topic

[DOLLY]

There's a thread recently on GayThailand that gave me a good scare. This is what was posted about an American expat disposing of his property in Thailand:

Actually, a Thai will may not do you any good if you are a citizen of the USA. The same may apply to other countries too, and you would need to check.

I have specifically discussed this with the US embassy. The told me quite clearly that when a US citizen dies in Thailand, the Thai government hands over jurisdiction to the US embassy as soon as possible.

Now the embassy is in control of your remains and possessions. They told me they will not, repeat - will not, honor a Thai will. They won't even honor a will you drafted in the USA. They said upon your death, the first thing they look for is your passport. They then will contact your next of kin, even if they have to track down a distant cousin or something. It is your next of kin who makes all the decisions, regardless of whether you have a will or not. Everything is entirely up to your next of kin. The only way your Thai will may be honored is if your next of kin decides to do so.

That is what the embassy told me. Those of you who are under the impression that your Thai will is going to be honored, check with the embassy yourself.

http://www.gaythailand.com/forums/Gay-Thai...t=20#entry38823

I called my Thai lawyer this morning and he assured me that my Last Will relating to properties and bank accounts in Thailand is perfectly valid and will accomplish transfer of the properties without any problems after my death. He said that the US Embassy does require next-of-kin approval for the disposition of my body remains if I die in Thailand, but that does not mean that my property in Thailand will not be legally transferred by the provisions of my Thai will and that my next-of-kin has no authority to dispose of my estate in Thailand contrary to a valid Last Will.

[Bob]

While I think you're right (that's what my Thai attorney told me - at least regarding dispositiion of my Thai personal property and bank account), that's not what seems to be written on the US Embassy site: US Embassy - Death of Citizen

Another poster on the same thread you cite indicated that the US Embassy told him that they would honor the provisions of your Thai Will and your Thai instructions for dispostion of your remains if you filed a notarized statement to that effect with the US Embassy/Consulate.

[Hedda]

There's seems to be an unfortunate mixing and confusing of two very different legal concepts in this matter which could have disastrous effects, if followed, on the disposition of your estate and property in Thailand.

Your "next-of-kin" is your closest blood relative and the person that the US government designates as the only person who has legal authority to decide what to do with your dead body after you've passed. That makes some sense because no one wants to put your corpse into storage in some Bangkok refrigerator for months, while the process of probating your Will takes place. So your closest blood relative is given the authority to dispose of your remains promptly. Unfortunately, gay partners or lovers have no standing as next-of-kin - at least, not yet.

Being someone's blood-related next-of-kin, however, is very different from being their heir or legatee, i.e., the person(s) you designate in your Last Will to inherit your property. Your next-of-kin blood relatives share in your estate only if you die intestate (meaning without a Will), or if you name them as one of your heirs and legatee in your Will.

If you look at that US Embassy material online,you will see what's called an "Affidavit of Next-of-Kin." If you examine that form, however, you will note the following:

"I, __________, being duly sworn according to the law, do say that I reside at ______ and that on the ___ day of (Name of Decedent) had his/her personal domicile in and was a resident of ______ and on said date _____ (Decedent) died intestate; that I am the (relationship) of the decedent, and as such am legally entitled to his/her estate under the laws of _________, the State of his/her last domicile in the United States."[/b]

Clearly, this Affidavit by its explicit terms is designed only for cases where you have died intestate, meaning without a will, causing your estate to pass to your nearest blood relative. This Affidavit seems decidedly inappropriate by its terms to attempt to dispose of your property in Thailand, if you have a Will making someone else your beneficiary.

I don't think there is any way that this Affidavit, which is not even signed by you, could be treated under the laws of Thailand or any other place as a Will. In fact, presenting this Affidavit to the US Embassy in Bangkok in this form could raise serious questions about the authenticity of any Will when presented for probate, creating a possible legal nightmare for your heirs in Thailand, if your next-of-kin back home should decide to contest your will as a forgery.

I don't have any doubt that my Thai Will is valid to bequeath my estate in Thailand. I also think that the Affidavit of Next-of-Kin is advisable to expedite the disposition of my corpse, but in a revised form, eliminating the troublesome language about intestacy and your next-of-kin being entitled exclusively to your estate. Needless to say, you should rely on your own legal adviser to decide how to proceed.

[mauRICE]

I wonder if it is not even easier, once you've reached a certain age, and a certain level of confidence in your Thai relationship, to make gifts inter vivos and to avoid the hassles of probate and estate duty altogether. My grandparents did that when they turned 80.

If you can't trust your one true love in Thailand, who can you trust?

[Oliver]

I agree with MauRICE; that is certainly my intention.

[TheYenta]

If you can't trust your one true love in Thailand, who can you trust?

You assume that the older farang will die first. What happens if the young Thai guy gets killed in a car crash and the farang finds himself at the mercy of family members he barely knows or trusts.

[mauRICE]

You assume that the older farang will die first. What happens if the young Thai guy gets killed in a car crash and the farang finds himself at the mercy of family members he barely knows or trusts.

Good point, Yenta. I didn't assume that the farang will die first but was basing my comments on the previous two posts where that assumption was made. I'm not suggesting that the farang gives away everythig he's got, but the portion that he wants his partner to have after his passing. That should cover the scenario you envisaged. Or, have a conventional will written and forget about making living gifts if he's got himself entangled with a Thai with a dubious family. Life being as unpredictable as it is, you can't cover for all eventualities.

[Bob]

So your closest blood relative is given the authority to dispose of your remains promptly. Unfortunately, gay partners or lovers have no standing as next-of-kin - at least, not yet.

That may not be the case. One poster indicated that he contacted the embassy and was told that they would honor whatever choices you make yourself provided some notarized statement to that effect is filed with them. I've emailed the embassy with a direct question on the issue and, if I get an answer, I'll advise as to what they say. I further intend (presuming what the one poster said is true) to provide the notarized statement to the embassy (actually, consulate) in the future.

As to those suggesting that the falang transfer his assets during his life to his Thai partner, that seems rather foolish to me. No relationship is guaranteed to last forever and, generally, the best way to get your assets to anybody after you're dead is via a will or trust.

[Larrie Queen]

As to those suggesting that the falang transfer his assets during his life to his Thai partner, that seems rather foolish to me. No relationship is guaranteed to last forever and, generally, the best way to get your assets to anybody after you're dead is via a will or trust.

I agrrree nwith Bob 100%. What if i live to 95 why would i want to trranssferrr my assets to a grreedy Thai then? I might live for anotherrr twenty yearrrs afterr that. What if he dumps me whenn im 105 and finds a sexierrr richer guy??? Will you be my lawyerr Bob?

[Bob]

For the US expats, here's verbatim the reply received from the US Embassy a few hours ago:

The U.S. Embassy will follow the wishes of a deceased American citizen according to the deceased’s legal will. If your will is considered a legal document in Thailand, and the will lists an executor, we would follow the will and take direction from the executor named in the legal will. Hypothetically, if the deceased does NOT/NOT have a legal will, then the Embassy would take direction from the legal Next of Kin. A named executor in a legal will trumps the Next of Kin, but sometimes this is the same person.

The U.S. Embassy can assist with cremation of remains and transfer of a deceased’s assets if the will executor or legal Next of Kin wishes us to assist; OR there is no legal will or a Next of Kin cannot be located.


Hope this helps.

Best regards,

American Citizen Services
U.S. Embassy Bangkok


So, it appears to me that, as long as you have a valid Thai Will, the US Embassy will follow the lead of your named executor as regards both disposition of property and remains.

[Haloi]

Unfortunately, it looks like the US Embassy in Bangkok functions like Thai Immigration: the answer depends on who you talk to. Clearly, what the Embassy told Gaybutton in the opening post and what's printed in their online directives is different from what they have just advised Bob. Somebody has got to get their act together.

[wpcoe]

What is the intent/meaning of the "... NOT/NOT..." in that reply from the Embassy?

With a slash between them, it doesn't seem to be a double-negative, but just what were they trying to say?

[Bob]

What is the intent/meaning of the "... NOT/NOT..." in that reply from the Embassy?

With a slash between them, it doesn't seem to be a double-negative, but just what were they trying to say?

I took it just as a matter of emphasis. And I believe the general rules stated in their online version only deal with situations where the deceased has no Will or where nobody in Thailand knows one way or the other. If you like how they deal with it without a Will, don't worry about it; if not, maybe one should make other plans including, possibly, having a Thai Will made.