Monthly Archives:' June 2014

Last Will and Testament

What is Estate Planning?

Estate planning is a process of anticipating and arranging the disposal of an estate and managing an individual’s asset base in the event of their incapacitation or death.  As part of an estate planning, drafting a Last Will and Testament is recommended.

What is a Thailand Last Will and Testament?

A Last Will and Testament is a declaration of intention by will, concerning dispositions as to your assets or other matters which shall take effect according to law after your demise.  The document will detail your assets in Thailand, such as property, bank accounts, vehicle, and personal valuable items, designating who shall inherit and control them according to your wish to prevent unnecessary complications and quarrels between family members.

Other than assets, what does a Last Will and Testament cover?

Your Last Will and Testament shall cover five important points:

1. Appointing an Executor or the person who will be in charge of settling and ensuring that your beneficiaries will receive their inheritance

2. Naming all the beneficiaries of your assets

3. Procedure on how the assets shall be transferred to your beneficiaries

4. How funeral must be arranged

 

What should I consider when selecting an executor for my will?

Overall, the executor will administer your estate and make sure that everything is done according to the terms of your will.  Appointing a trusted executor is an important decision that needs thorough consideration.  The responsibilities of an executor include making sure all assets are accounted for, all existing debts and tax obligations are paid, and that remaining assets are distributed to the correct beneficiaries in accordance to your will.

Conflict of interest can be avoided by selecting an executor who is not a beneficiary or a business partner.  Most individuals tend to choose family members or other close friends or relatives to act as an executor; it is important that it is someone you can completely trust. Appointing someone as executor does not mean that the chosen individual must do everything themselves. Executors are allowed to hire others to help with various aspects of the process. If you don’t have a friend or family member with the necessary expertise, consider hiring a lawyer, accountant or similar type of professional to act as your executor.

What happens to my assets in Thailand if I don’t have a Last Will and Testament?

In Thailand, when a person dies without a Last Will and Testament, the intestate’s assets must be distributed in accordance with the law.  As stipulated in The Civil and Commercial Code Section 1629, there are six classes of statutory heirs in Thailand.

Each class is entitled to inherit in the following order:

1. descendants

2. parents

3. brothers and sisters of full blood

4. brothers and sisters of half blood

5. grandfathers and grandmothers

6. uncles and aunts

The right of a surviving spouse to share in the estate of a deceased spouse arises automatically from marital status. Spouses who are under separation do not lose the right of inheritance to one another as long as divorce between them has not been granted according to law.  Ordinances awarding such rights on a surviving spouse make the spouse a statutory heir.  Before any distribution of the estate to the relatives, half of the estate (Sin Somros) will belong to the spouse, if any, and the rest will be distributed accordingly.

How do I make a valid Thai Will?

A testator must be competent and at least 15 years of age.  A will may be made in any of the following forms:

• It must be in writing, dated at the time of making the will, and signed by the testator before at least two witnesses present who shall sign their names certifying the signature of the testator;

• By Holograph Document.  The testator must write with his own hand the entire text of the document, the date and his signature.

• By Public Document.  The testator must declare to a District Officer before at least two witnesses what dispositions he wishes to include in his will. The District Officer must note down such declarations and read it to both the testator and witnesses, all affixing their signatures after having ascertained that the statement written down corresponds with the declaration of the testator.

• Secret Document. The testator must sign his name on the document, close the document and sign across the place of closure.  This document must be presented to a District Official with at least 2 witnesses and declare to them that it contains his testamentary dispositions.

It’s very important to observe the correct legal formalities when signing, amending, or revoking your Will.  If you fail to follow all of the specific formalities, then your Last Will won’t be legally valid.

I already have my last will and testament in my home country; do I need a different will for my assets in Thailand?

Different jurisdictions usually require different formalities for the wills. Having a will drafted in your home country to cover all your assets in Thailand may be troublesome to your family, especially in the event that the will might be invalid in Thailand courts should it not conform to the Thai law requirements.  A Thai will should be prepared and signed on Thai territory to ensure that Thai rules regarding the form of your will apply.

Thailand Bail Bond

What is Bail Bond?

A bail bond is one method used to obtain a temporary release of an alleged offender or accused person awaiting trial on criminal charges from the custody of law enforcement officials, sometimes on condition that a sum of money or other form is lodged to guarantee their appearances in court. In other words, it represents an agreement to appear in court on a scheduled date.

What is a Bailsman and who can act as one?

A bailsman is one who provides bail or security for another. It can be any individual, juristic person, or entity that acts as a surety and pledges money or assets as bail to ensure the future appearances of an alleged offender in court.

What is the general rule regarding the right to Bail?

A suspect or alleged offender is presumed innocent until proven guilty. Anybody charged with a criminal offense shall be admitted to bail as a matter of right, with sufficient sureties as prescribed by law before judgment is passed by the court of an offense not punishable by death or life imprisonment.

A written request must be submitted by a bailsman to the investigating officer who will ask for particular documents; the result of the bail review shall be announced within 24 hours.

Can an alleged offender who is kept in custody be refused bail?

According to Thai Criminal Procedure Code, an order which refuses to grant provisional release shall be issued only when one of the following causes exists:
• The alleged offender is likely to escape
• The alleged offender tampered with evidence
• The alleged offender is likely to cause injury to another person
• The person filing for a provisional release or the security offered is not sufficiently credible
• The provisional release will obstruct the inquiry of the officials or the trial in court
If the grant of a provisional release may endanger a key witness, such witness may file a motion of objection to the court.

What is the minimum bail amount required?

The minimum bail amount may vary because the amount of bail for each case is set by the presiding judge of each jurisdiction, considering each particular criminal action and related evidence.

What are the forms of guarantee when posting bail?

In Thailand, there are three guarantee categories when submitting a request for a temporary release:
1. Request for temporary release by using assets (title deeds, bank accounts, etc.)
2. Request for temporary release by using cash
3. Request for temporary release by using the employment status of a public official
(Government, police, military, political officials and state enterprise employees may be used as Bail Bondsmen wherein bail rates are set from 60,000 baht up to 800,000 baht depending on one’s position)

How are bail requests being considered?

In considering a temporary release, the court shall use the following criteria:
• Seriousness of the offense
• Sufficiency of the existing evidence and the credibility of the witness
• Circumstances of the case
• Trustworthiness of the person filing the request or the guarantee given
• Likelihood of the alleged offender to escape
• Likelihood of the alleged offender to create danger caused if released
• Likelihood of the alleged offender to destroy evidence or threaten any key witness
• Existence or non-existence of an objection by an inquiry official, public prosecutor, plaintiff or witness

What are the conditions when a temporary release is granted?

Before granting release, the court will issue a receipt for the asset or for the amount of cash posted as a guarantee along with an appointment letter. The bailsman or the person providing guarantee or security shall be compelled to sign a guarantee agreement in which he ensures to bring the suspect or alleged offender to court on the date of the appointment. Failure to do so shall subject the bailsman to penalty as provided for in the contract.

When shall the bail bond be returned?

The court will order the bail bond returned on the day the judgment is read without the need to submit a request.

Notarization of Documents

What is notarization?

Notarization or notarial act is the official fraud-deterrent process of examining, certifying and record-keeping performed by a notary public or notarial services attorney that solidifies the important document as trustworthy. It is a requirement of many countries that personal or commercial documents originating from or signed in another country to be notarized before they can be officially used or before they can be legally recognized. Once notarized, a document will have more legal credibility.

Why are we being asked to notarize certain documents?

It is an assurance by a duly appointed and unbiased notary public that a document is authentic, that its signature is genuine, and that its signer acted without coercion or intimidation. A notary certifies that the person signing the document is who they claim to be and that they signed the document in front of a notarial services attorney.

What is a notary public or notarial services attorney?

A notary public is a person of integrity who is appointed to act as an impartial witness to the signing of an important transaction and to perform a notarial act which validates the transaction. A notary’s primary purpose is to prevent fraud and forgery by requiring the personal presence of the signer and satisfactorily identifying the signer. In Thailand, unlike other countries, only lawyers/attorneys are given the authority to function as notarial services attorneys through the regulations of the Lawyers Council. For an attorney in Thailand to become a notarial services attorney, he must pass a special legal training course from the Lawyers Council in order to get a notary’s license or attestation.

What are the functions of a notarial services attorney?

A notarial services attorney may execute the following functions:

    • Attestation of signature
    • Certifying true copy of documents
    • Attestation of ID such as passport / driver’s license
    • Authentication of title deeds
    • Administrating an oath and affirmation
    • Testimony and oath and affirmation (affidavit)
    • Attestation of address
    • Confirmation of birth certificate
    • Certification of translations
    • Verification of documents
    • Power of attorney
    • Witnessing contracts and other related documents
What documents normally require notarization?

Examples of documents commonly notarized are passports, bank statements, land title deeds, contracts, power of attorney, applications for international visa, etc.

Is notarization required by law?

Yes, it is required for many documents. Certain affidavits, real estate deeds and other documents may not be legally binding unless they are duly notarized.

How do I get my document notarized?

Be sure to take an unsigned document to the notary as you will be required to sign them in front of the notarial services attorney. You will be asked to present your original proof of identification with photo and signature such as passport or other government issued ID. Your document shall be signed and marked with a stamp or seal to indicate that the signature is legitimate and it wasn’t somebody else pretending as you.

Aside from the notary signature, what particular details must be supplied by the notarial services attorney?

Be sure to check that the document has been marked with a seal or stamp. The notation must correctly identify the date and place of notarization, the full name, title, certificate validity date, and license number of the notarial services attorney.

Does notarization mean that a document and its content are accurate or legal?

Notaries are not responsible for the accuracy or legality of the content of the documents they notarize as notaries merely certify the identity of signers and has no obligation to verify a document’s content. The signers are responsible for the content of their documents.

May a notary refuse to serve people?

Notaries should not refuse to serve anyone because of religion, nationality or lifestyle. A notarial services attorney is only required by law to refuse service to anyone if they have a good reason to suspect fraud and the signer cannot reasonably prove his or her identity and general competence.

Can a document with blank spaces be notarized?

A blank line is an invitation for fraud. Prior to notarization, documents should be entirely completed except for the space intended for the signature of the bearer as the document must be signed in front of the notarial services attorney.

Due diligence on Thai property purchase

What is Due Diligence?

Due diligence is the research and analysis of a company, organization, or individual which is done in preparation for a business transaction or investment. A reasonable person takes extra precaution before entering into an agreement or a transaction with another party to prevent unnecessary harm; the procedure helps identify potential risks and liabilities. Due diligence serves to confirm all material facts and legal parameters in regard to a sale or acquisition by investigation and evaluation of a potential investment.

What is the importance of Due Diligence on Thai property purchase?

Investing in real estate certainly involves a huge amount of money. We cannot deny the fact that there are some fraudulent dealers and developers taking advantage of naïve investors who can easily be victimized in unscrupulous deals. Therefore, investors are advised to take extra precaution before finalizing any transactions. Due diligence is a useful tool for estimating the status of a prospective project and the developer. The failure to conduct the necessary safeguard in ensuring that the potential property to be purchased is what the seller claims or promised it to be usually results in severe consequences such as serious financial and legal distress on the part of the buyer. It must be remembered that almost always after the transfer has been completed, the seller will not be held responsible for any problems not discovered by the buyer.

What are the important factors to consider in carrying out Due Diligence?
    You need to be guaranteed that the seller is holding the said property under a true title of ownership. Land descriptions contained in any title deed must match the records on file with the Land Department. It is necessary to establish whether or not the chanote or title deed has been correctly and legally issued.

    You need to be aware of the burdens existing on the property. It is necessary to review the Register of Records stated at the back of the title document, which contains all encumbrances and liens currently levied upon the property.

    You need to determine whether the seller is the one who holds title to the property and, therefore, has full legal rights to sell the property.

    You need to be aware of any pending or potential legal action involving the property.

    You need to make sure that the developer has all of the required permits and legal documents for a project that is not yet built.

    You or your legal consultant may have some minor concerns with the sales contract, details that can be corrected before signing to purchase.

    You need to be informed of the details and status of the developer. It is essential to know how long the developer has been developing properties in Thailand and the amount of their registered share capital.

    You must have a clear understanding of the rights and obligations of each party. This includes who pays which taxes and fees, when the deposit and balances gets paid, how long the project will take to completion, and what remedies there will be if the project is not completed on time.

    It is recommended that you have a lawyer in Thailand to review the contract drafted by the seller to ensure it is prepared with proper terms and conditions that meet the standard terms as required by relevant laws and confirm that the contract does not contain terms of any hidden cost or drawbacks. Your lawyer will also negotiate and discuss with the seller on your behalf any proposed changes until both parties mutually agree with the content of the final contract then set to meet for signing.

When is Due Diligence conducted?

The need for thorough, detailed due diligence begins prior to the signing of a binding contract. The necessary title and background investigations provide the initial basis to confirm a safe purchase and ensure that both parties deal with each other fairly.

How long does Due Diligence procedure take?

Completion of a due diligence procedure varies with each situation. Due diligence is all about research; that is why a reasonable schedule should be allotted to ensure that all essential aspects are scrutinized. Your lawyer or consultant will evaluate and define the timeframes in which due diligence will be conducted.