Hughes Krupica: Planning for death

Therefore, if the deceased left a will of assets in Thailand, but overlooked the interests outside of Thailand relating to assets in Thailand, there could be a problem. The classic issue that I have seen is that of a ‘share’ in an offshore company. It is not legal, post death, to attempt to transfer the deceased’s shares to a beneficiary of a jurisdiction which doesn’t govern the shares. If the jurisdiction has reciprocal arrangements, such as many commonwealth countries, then the will in the reciprocating country becomes important and there may be a process to be administered prior to perfecting any transfer.

Backdating documents prior to the death of the deceased is an obvious fraud and violation. Further, attempting to transfer shares without the necessary skill or expertise can easily be detected – documents can be carbon date tested, signature experts can check signatures, and non-lawyers often make mistakes if they are trying to cover their tracks when inventing paperwork. Was that share certificate signed? Was there a supporting stock transfer instrument? Do the share book ‘stubs’ from which the share certificate should have been detached, match the share certificates?

Many fraudulent acts rely upon the immoral concept “the person is dead anyway and there isn’t anyone we believe will challenge what I am/we are doing”. This is completely contrary to the legal protections which relate to a valid or invalid ‘disposition’ of an estate by a person. Changing what someone wanted to happen after they died, without their consent because they are dead, is obviously a violation of their rights, and law.

Don’t buy property from an estate without advice
I have seen property marketed in Phuket by persons purporting to have ‘inherited’ the property. I have even seen offers of completions and monies exchange hands without any supporting paperwork – not on my watch, I hasten to add. It is not correct that if a government office accepts a transfer, that the transfer is always legal. A government office is only required to ask for certain documents to support an application, and is not required to over extend itself to look for, or try to detect, fraudulent dealings with estates.

If you know something is being sold because someone ‘died recently’, and the price is ‘reduced’, spend some additional monies making sure what you are buying is legitimately being sold. You should still make an overall saving, even after paying for additional checks.

Appoint executors carefully; plan for the unexpected
If you intend to use someone as your ‘executor’, then you should remember that unless they are a family member or a very close personal friend willing to give up their time for free, that anybody else will have to spend a significant amount of administrative time dealing with your estate and third parties. You must, if you wish for them to be able to carry out their duties effectively, ensure they have the right to deduct from your estate ‘reasonable’ fees and expenses.

If you have an executor who is also a beneficiary, but there are other beneficiaries, this can cause conflicts if there is any question by beneficiaries as to how distributions are made. Sometimes it is better to have an independent unrelated executor, and other times not.

It pays also to make contingencies for accidental death, which might of course be your death and that of your beneficiaries or executor. In a place like Phuket, death due to road accident is an unfortunately highly likely event due to the obvious carelessness on the roads and the lack of enforcement of speeding and dangerous driving, to name but a few issues.

On such a basis, make sure you provide for ‘alternative’ executors and name a few beneficiaries in order in the event the beneficiaries you first name die with you, or before you.

Nobody enjoys planning for death, the discussions around death or facing up to the unpleasant consequences of a poorly ordered estate.

Aside from the process of drafting a will, which many seem to do these days by downloading a template from the internet, a practice which this author advises against, you should also go through a process of discussing the will with the relevant qualified persons who understand the relationship between the jurisdictions of your assets, and understand what happens in practice when people die.

By Desmond Hughes, Senior Partner, Hughes Krupica
Hughes Krupica is a law firm which specialises in Real Estate; Construction; Hospitality; Corporate; Marine; Dispute Resolution; and Litigation, operating in Bangkok and Phuket, servicing clients in relation to their business activities in Thailand and in other regions of Asia. www.hugheskrupica.com