Further Reading:
Property Inheritance Issues
Frank who describes himself as an Islander wrote "I live here on Phuket island along with my wife and two children. We are married in the Thai traditional way (not legally on paper) for the last 8 years and doing fine I might add. My question is: the home that we just completed is in her name. For me this was and is the easier route. What I am concerned about is; if something were to happen to my wife what would happen to these assets."
That's always a tricky question and one that many of us tend to avoid
because we don't like to think about it much. However the issue, as
you have clearly already appreciated, is important and needs to be addressed
directly. There is after all, what quite possibly your most important
asset at stake here.
What can you wrong? Well broadly and without intending to cast any doubts
on the current status of your marriage, or being a seer of doom, there
are two potential major issues here, premature death and a break down
of your common law marriage and/or the financial trust that currently
secures your interest in your home.
The first step, which would be effective in mitigating the results of either death or a financial dispute, is to secure some direct rights over your home that would extend beyond your wife's death or offer some protection in a financial dispute. This can most typically be achieved by either registering a lease over the land upon which your home is built and/or taking a direct ownership interest in the house (as a foreigner you can't have direct ownership over the land). I have discussed these mechanisms in many previous articles, so will not explain them further here.
The second step which is really one of general prudence, is for your wife (and you, but for different reasons) to write a last will and testament (a local will is recommended, because probate on a foreign will can be very slow in Thailand). This will should provide a line of inheritance for the land, that is consistent with your objectives - and of course, what is allowable under the law of Thailand. As a foreigner you can no more receive transfer of land under last Will and testament, than you can buy it today, so you cannot receive direct transfer from your wife.
If your children have Thai nationality, the property could always be left to them, though there are a few issues regarding minors owning land which I will discuss later that might detract from this approach. Alternatively the property could be left to anyone whom your wife (and you) deem appropriate. Bear in mind that if you have a lease registered over the land - this lease assigns to heirs and you remain the lessee for the full duration of the lease, even if the ownership changes through inheritance
As noted above, if your children are Thai, they can receive ownership of land and property - and some mixed marriage families wishing to find a secure vehicle to own the family home do indeed put it in their children's name. There are some merit's to this approach, but the major draw back is that one a child under the age of majority, has taken ownership of property they may not sell it (or their parents sell it) with out getting a court injunction to sell it with the proceeds to be used solely in the child's interests. As such you are in effect locked into the property with no ability to sell or trade up or down until your children are 18 years old.
All these issues require considerable thought and consideration to arrive at a solution that best suits your personal needs; discussions which I must say in closing, are probably better discussed with a lawyer than a real estate consultant.