Usufruct Created by Will in Thailand

Creating a lifetime right of use by Last Will and Testament

A usufruct over land or other immovable property in Thailand is most commonly created during the lifetime of the owner and registered at the local Land Office. However, Thai law also allows a usufruct to arise under a Last Will and Testament.

This is particularly relevant in estate planning where the registered owner wishes another person to receive a protected right to possess, use and enjoy the property after the owner's death, while ownership of the land itself passes separately to an heir or other eligible beneficiary. The Thai Department of Lands has published specific registration examples dealing with this situation. Its official forms show how a usufruct granted under a will is registered following the death of the landowner.

This is not the inheritance of ownership of the land. It is the testamentary acquisition of a separate real right over the land.

1. Legal Basis of a Thai Usufruct

Usufruct is governed by Sections 1417 to 1428 of the Thai Civil and Commercial Code. Under Section 1417, immovable property may be subjected to a right of usufruct. The usufructuary obtains the right to possess, use and enjoy the property and also has management rights over it.

Section 1418 permits a usufruct to be created either for a fixed period or for the lifetime of the usufructuary. If no period is stated, the law presumes that it exists for the lifetime of the usufructuary. In all cases, the usufruct terminates upon the death of the usufructuary.

A usufruct therefore separates ownership of the property from the right to possess and enjoy it. This makes it useful for estate planning where the owner does not wish to transfer ownership to the person who needs protection.

For the general statutory rules, see: Civil and Commercial Code Sections 1417–1428 – Right of Usufruct.

2. A Usufruct Can Be Created by a Will

The Department of Lands expressly recognises a usufruct created by testament. Its official registration example describes a situation in which:

• Mr. A is the registered owner of the land;
• Mr. A dies;
• his Last Will and Testament grants Mr. B a usufruct over the land;
• the usufruct is granted either for a specified number of years or for the lifetime of Mr. B; and
• Mr. B subsequently applies to the Land Office to register the usufruct created by the Will.

The official Land Office wording specifically records that the deceased registered owner made a Last Will and Testament granting the applicant the usufruct over the land, either for a stated term or for the lifetime of the usufructuary. This is important because it confirms that a usufruct does not necessarily have to be created and registered by agreement between owner and usufructuary while both are alive.

Usufruct created by Will in Thailand: how a surviving spouse can receive a lifetime right of use while ownership passes separately to heirs. The legal basis for the future right can instead be contained in the landowner's Will, with registration taking place after the owner's death.

3. The Land Is Not Inherited by the Usufructuary

The most important feature of the Department of Lands example is the distinction between inheritance of the usufruct and inheritance of ownership of the land.

The Department of Lands specifically notes that the registration in its example concerns only the testamentary acquisition of the usufruct. It is not a transfer of the land itself by inheritance. Other heirs may therefore inherit ownership of the land while it remains subject to the usufruct.

This distinction can be extremely useful in estate planning.

For example, a Thai landowner may wish to:

• leave ownership of the land to children or another family member; but
• give a surviving spouse the right to live on, use and enjoy the property for life.

Instead of transferring ownership to the surviving spouse, the Will can potentially separate the two interests:

Child or other eligible beneficiary → ownership of the land
Surviving spouse → lifetime usufruct

4. Why This Can Be Important for Thai-Foreign Families

A testamentary usufruct can be particularly useful where a Thai national owns land and the surviving spouse is a foreigner. Foreign ownership of land in Thailand is restricted. Naming a foreign spouse as an heir does not itself remove those restrictions.

A usufruct addresses a different question.

Instead of relying on the foreign spouse becoming the owner of the land, the Thai owner can potentially give the spouse a recognised real right to possess, use and enjoy the property while ownership passes separately. This can be a much cleaner estate-planning structure because it does not depend on the foreign beneficiary becoming legally entitled to permanent ownership of Thai land.

For example:

A Thai wife owns the family home and land. Her Will leaves ownership of the land to an eligible heir but grants her foreign husband a lifetime usufruct.

Following her death, ownership can be dealt with separately while the husband applies to register the usufruct granted to him under the Will.

The Department of Lands' own example demonstrates precisely this separation between succession to ownership and testamentary acquisition of the usufruct.

5. Testamentary Usufruct Versus Lifetime Registration

There are two different estate-planning approaches which should not be confused.

Usufruct registered during the owner's lifetime

The owner and usufructuary attend the Land Office and register the usufruct while the owner is alive.

The right then already exists.

If the owner subsequently dies, the land passes to the owner's heirs or beneficiaries subject to the already registered usufruct.

This generally provides greater certainty for the usufructuary because the right does not depend upon a future Will remaining unchanged.

Usufruct created under a Will

The owner does not create the usufruct immediately.

Instead, the Will states that the beneficiary is to receive a usufruct following the owner's death.

The beneficiary must then rely on the Will and complete the inheritance and registration procedure after the owner has died.

The Department of Lands has published a specific registration example for precisely this type of acquisition.

The advantage is that the owner does not encumber the land with the usufruct during his or her lifetime. The disadvantage is that a Will remains revocable and may be changed by the testator while alive.

Which method is preferable depends on the purpose of the arrangement.

6. Fixed-Term or Lifetime Usufruct

The official Department of Lands example expressly provides for both alternatives:

• a usufruct for a specified number of years; or
• a usufruct for the lifetime of the usufructuary.

This reflects Section 1418 of the Civil and Commercial Code.

For family estate planning, a lifetime usufruct is often the more natural structure where the purpose is to allow a surviving spouse or dependent family member to remain in and use the property for the remainder of his or her life.

The usufruct ends upon the death of the usufructuary. It does not then become an inheritable usufruct belonging to the usufructuary's own heirs.

Ownership of the underlying land, however, continues.

7. More Than One Usufructuary

A usufruct does not necessarily have to be granted to only one person. Thai Land Department practice recognises that there may be more than one usufructuary.

A multiple-usufruct arrangement requires particular care.

A lifetime usufruct granted to young beneficiaries may burden the property for many decades. It should also be clear whether each person receives an individual right and how the remaining rights continue when one usufructuary dies.

Multiple usufructuaries can therefore be useful, but should not be included automatically simply because several family members are intended to benefit.

8. Registration After Death

A clause in a Will describing a usufruct is not itself the final Land Office registration. After the death of the testator, the beneficiary must present the Will and the required succession documents to the competent Land Office and apply for registration of the right.

The Department of Lands example treats this as a specific inheritance registration concerning the acquisition of a usufruct under a Will.

The official investigation form records:

• the deceased registered owner;
• the Will under which the usufruct is claimed;
• the identity of the usufructuary;
• the land concerned; and
• whether the usufruct is for a fixed term or lifetime.

The Land Office example also notes that the applicable inheritance announcement procedure must be followed.

The wording of the Will should therefore clearly identify:

• the immovable property concerned;
• the person or persons receiving the usufruct;
• whether the right is for a fixed period or lifetime; and
• the scope of the intended usufruct.

The actual registration remains subject to Land Office procedure.

9. Ownership Can Pass Subject to the Usufruct

A testamentary usufruct can therefore produce a useful division between two different legal interests.

The owner may provide in the Will for one person to receive ownership while another receives the usufruct.

Once properly registered, the owner of the land holds the property subject to the usufruct.

The usufructuary has the right of possession, use and enjoyment, while the registered owner retains the underlying ownership title.

The Department of Lands' registration example expressly confirms this separation. The acquisition of the usufruct is not inheritance of ownership of the land itself, and ownership may pass separately to other heirs while the usufruct remains in existence.

10. Usufruct Is Not a Substitute for a Trust

This distinction can be particularly relevant where a family is attempting to create a common-law style trust over Thai land.

A Will may attempt to give land to a Thai person with instructions to hold and manage it for a foreign spouse, children or other beneficiaries.

Such arrangements can create legal problems because Thai succession and property law do not simply reproduce common-law trust ownership.

A usufruct takes a different approach.

The ownership remains with the person who legally receives the land, while another person receives a separate property right recognised under Thai law.

For some estate-planning objectives, this can achieve the intended protection without attempting to divide legal and beneficial ownership through a trust arrangement.

A usufruct should not be used as a disguised method of transferring ownership of land to somebody who is not legally entitled to own it. It creates a right of possession, use and enjoyment, not ownership.

11. Example Estate-Planning Structure

A relatively simple estate-planning structure might therefore be:

After the owner's death, succession to ownership and registration of the usufruct can be dealt with separately.

The result may allow the surviving spouse to remain protected in the possession, use and enjoyment of the property without becoming the registered owner of the land.

This structure can be particularly useful for Thai-foreign couples, but the same legal mechanism may also be used between Thai family members.

12. Practical Caution

A usufruct created by Will should be drafted deliberately rather than simply inserting the words “lifetime usufruct” into a general Will.

The property should be sufficiently identified and the intended beneficiary and duration should be clear.

It is also necessary to consider who will inherit ownership of the property because ownership and usufruct will coexist after the death of the testator.

Where several beneficiaries, children of different nationalities, existing occupants, matrimonial-property issues or other registered rights are involved, the succession structure should be considered as a whole.

A Will may also be amended or revoked during the lifetime of the testator. Where greater certainty of occupation is required immediately, registration of a usufruct during the owner's lifetime may therefore be preferable to relying solely upon a future testamentary right.

13. Official Department of Lands Sample – Usufruct Created by Will

The Thai Department of Lands has published an official sample dealing specifically with the registration of a usufruct created by a Last Will and Testament.

The sample is particularly useful because it does not merely discuss the legal possibility in general terms. It shows the actual Land Office registration structure following the death of the registered landowner.

In the Department of Lands example:

• the registered landowner has died;
• the deceased landowner made a Last Will and Testament;
• the Will grants another person a usufruct over the land;
• the usufruct may be for a specified period or for the lifetime of the usufructuary;
• the beneficiary applies after the owner's death to register the usufruct; and
• ownership of the land itself is treated separately from acquisition of the usufruct.

The Thai registration description used by the Department of Lands is:

โอนมรดกการได้มาซึ่งสิทธิเก็บกิน

Inheritance / acquisition of a usufruct right

The Department of Lands also makes an important express clarification in its example: the registration concerns inheritance of the usufruct right only. It is not a transfer by inheritance of ownership of the land itself. Other heirs can therefore inherit the land while it remains subject to the usufruct.