Creating a (last) will in Cambodia and the actual job description of a Cambodian Notary (public)

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Creating a (last) will in Cambodia and the actual job description of a Cambodian Notary (public)

Post by JonnyBeeGee » Tue Dec 24, 2019 10:54 pm

Hello forum!

Just asking if anyone has:

1) drafted a (Notarial) will for use in Cambodia using the services of a Cambodian notary;
2) had a Cambodian notary simply notarize a will that you (the testator) had written in English;
3) had experience of using a will after the death of someone in Cambodia. (Mainly wondering what kind of will it was and was it effective in smoothing the transfer of assets, looking out for interests of specified children, etc.)

I found this article https://www.b2b-cambodia.com/articles/g ... -cambodia/ which is fairly helpful in that it explains the three types of wills (notarial, private, secret) that you can get made/make yourself here in the Kingdom and a little about the type of involvement that each requires of a Cambodian notary, lawyer, and courtroom.

Notarial Wills
  • Are drafted by a Cambodian Notary based on what the Testator says in front of three witnesses (including the Notary).
  • Are the most accepted by institutions (such as a bank I assume).
  • Still probably need to be brought before a judge to get a ruling as to authenticity (before the Testator passes I assume).
  • The fee (charged by the notary) for the creation and notarization of this will is a certain percentage of the value of assets listed in the will.
Secret
  • Also called "hybrid" as it is really a mixture of a notarial and a private will.
  • May involve the help of a notary or attorney in the drafting.
  • Is brought before a notary and two witnesses ALREADY SEALED.
  • The SEALED WILL (note - not read out) is stated by the testator to be his or her will.
  • The notary dates (and stamps?) the envelope as well as the witnesses and the testator.
  • Is thought to be less costly when compared to a Notarial will.
Private Wills
  • Must be HANDWRITTEN - CANNOT BE TYPED.
  • Does not require any services from a notary or attorney (or witnesses I presume).
  • Will most likely need to be taken before a judge to get ruling as to authenticity (through handwriting analysis I assume?) before it is applicable.
Today, I visited two notaries with the intent of finding out whether a Cambodian notary could simply stamp my will after seeing me and two witnesses sign it. I took a copy of a will (typed) that I had drafted using Freewill (a common will drafting site for US residents) https://www.freewill.com/. I think that in essence what I was trying to get notarized was a "secret" will. Neither of the notaries seemed to express interest in simply putting their notarizing stamp on my basic will. They offered wildly different prices for drafting a notarial will, and could not give me real answers as to how "private' or "secret" wills actually work. In fact they seemed to caution against using these two types of wills. Of course, it is probably in the best interest of notaries to "sell" clients on a notarial will, as they can collect higher fees from drafting the will (and possibly creating multilingual versions). It could also be the case that notaries advise people to create notarial wills as these wills are most recognized by the Cambodian legal apparatus.

(I was also taught about what the actual job description of a notary (public) is in Cambodia. The job (seems) to have a lot more clout than a simple notary public in a country like the USA. Here is an article that goes a bit into detail about that: http://www.ppnp.com.kh/notary-public-profession/.)

I guess a big question that I have is that as creating a will in Cambodia seems to be much more expensive and involved than creating a will in more economically developed countries, is it really necessary? I mean in certain circumstances, such as when starting a family, we are taught that it is crazy and reckless to not have a will in our home countries, but here in Cambodia...perhaps you must have substantial assets to really consider going through the legal processes of creating a usable will?

Any insights into/experiences with these matters would be very helpful.
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Re: Creating a (last) will in Cambodia and the actual job description of a Cambodian Notary (public)

Post by pczz » Wed Dec 25, 2019 1:19 am

I did this a couple of years ago. The will can be expensive. I was quoted $800 but I think its a percentage of the assets listed in it.
I used Phnom Penh notary Public in Canadia Tower. The person you want to talk to is Minsum Solidar. Very nice lady, trained at the Sorbonne in Paris, speaks almost fluent English and French.
As far as I can tell International law says your assets dealt with according to the laws of the country the assets are in. Your US will has no legal standing here if you die here.
Not all Notaries are real Notaries so be careful. There are a handful who are authorised by the Ministries Amongst other things they can do official translations which then have to be stamped by the MOFA. I got caught once already, when the notary turned out not to be a notary!
Alternatively ACLEDA told me all I need to do was give them a letter witnessed by a notary stating who was to get my money and they could just turn up with the death certificate OR I couldopen a joint account and then if one person dies the other one just carried on using the account. Really depends what assets you need to worry abou
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Re: Creating a (last) will in Cambodia and the actual job description of a Cambodian Notary (public)

Post by samrong01 » Wed Dec 25, 2019 2:26 am

I did a will a while back on the advice of my lawyer. I can tell you that he advised me that:
1. It does not need to be notarized by a notary - any registered lawyer will do.
2. The will must be hand written and witnessed (in writing) by two independent witnesses followed by the lawyer's official stamp and signature. It is then sealed in an envelope by the lawyer and stamped by him. Three original copies are done - one for the lawyer, one for you, and one for the executor. It is quite tedious hand writing three copies.
3. I think the witnesses should be Cambodian but not clear on this point.
4. The other options (Secret and Private) noted in the law as you describe above are only valid for Cambodian citizens.
5. The cost depends on your lawyer. Mine quoted $2000 including execution of the will. In the end I did not pay up front due to my relationship with him.

Generally it can be preferable to transfer assets to the beneficiary before death to avoid probate and complications. Of course this is not always possible but is an option to consider.
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Re: Creating a (last) will in Cambodia and the actual job description of a Cambodian Notary (public)

Post by JonnyBeeGee » Wed Dec 25, 2019 8:02 am

Thanks so much PCZZ.

This is very helpful information.
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Re: Creating a (last) will in Cambodia and the actual job description of a Cambodian Notary (public)

Post by JonnyBeeGee » Wed Dec 25, 2019 8:04 am

Thank you so much Samrong01.

I am beginning to very much believe your last point.
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Re: Creating a (last) will in Cambodia and the actual job description of a Cambodian Notary (public)

Post by armchairlawyer » Fri Dec 27, 2019 1:00 pm

JonnyBeeGee wrote:
Wed Dec 25, 2019 8:04 am
Thank you so much Samrong01.

I am beginning to very much believe your last point.
Yes, exactly. Failing that, I would recommend, in the case of banks, to get a clear statement from your bank as to what they will require upon your death, and hope they stick to it. Without that, I would say go for the full monty notary route. As you say, the notary method here is much more than a glorified witnessing. The fees are substantial. Don't expect the notary to know what your bank will require, ask them and get it in writing, even when you are going the notary route.

There is no standard practice and banks can be difficult, asking for more and more documents. For sure, it is necessary to specify in your will not only the bank name but your specific account numbers. This can lead to expensive remaking of wills when you open new accounts.

If the joint account method is too risky, consider leaving your online banking details and PIN in coded form with your lady in an envelope addressed to a trusted friend. Tell the friend the method to interpret the numbers. (Edit - of course you have to think about incapacity as well as death).Or hope you don't die a sudden death (or death in another country) so you have time to empty your bank accounts before you die.

If you make a Cambodian will be sure to state clearly in it that it only deals with your assets in Cambodia. And state your wishes for burial/cremation. Say you want to be buried/cremated in Cambodia. If you appoint a lawyer as executor he/she will earn substantial fees when dealing with your estate. You probably don't want them spending a load more sending your body off somewhere. Even if you appoint a friend as executor, s/he will have to spend a load of dosh on the funeral, getting the death certificate, getting court orders etc.
Last edited by armchairlawyer on Fri Dec 27, 2019 1:07 pm, edited 1 time in total.
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Re: Creating a (last) will in Cambodia and the actual job description of a Cambodian Notary (public)

Post by armchairlawyer » Fri Dec 27, 2019 1:04 pm

samrong01 wrote:
Wed Dec 25, 2019 2:26 am
I did a will a while back on the advice of my lawyer. I can tell you that he advised me that:
1. It does not need to be notarized by a notary - any registered lawyer will do.
2. The will must be hand written and witnessed (in writing) by two independent witnesses followed by the lawyer's official stamp and signature. It is then sealed in an envelope by the lawyer and stamped by him. Three original copies are done - one for the lawyer, one for you, and one for the executor. It is quite tedious hand writing three copies.
3. I think the witnesses should be Cambodian but not clear on this point.
4. The other options (Secret and Private) noted in the law as you describe above are only valid for Cambodian citizens.
5. The cost depends on your lawyer. Mine quoted $2000 including execution of the will. In the end I did not pay up front due to my relationship with him.

Generally it can be preferable to transfer assets to the beneficiary before death to avoid probate and complications. Of course this is not always possible but is an option to consider.
I don't think you did a notarised will. Sounds like a secret one. Your last point is spot on.
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Re: Creating a (last) will in Cambodia and the actual job description of a Cambodian Notary (public)

Post by daeum_tnaot » Fri Dec 27, 2019 2:35 pm

To me, this is just another sign about Cambodia how difficult it is to do something that should be fairly straightforward.

Has anyone had experience with the part about bringing the will before a judge to be validated? That sounds like a nightmare.

My (brief) experience with lawyers here is that it is fairly opaque, which allows lawyers to charge more or less as they see fit. There's no "market" for services, as it were. I thought about an innovation to create an app, kind of like a TripAdvisor for lawyers, to help consumers wade through this.
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Re: Creating a (last) will in Cambodia and the actual job description of a Cambodian Notary (public)

Post by phuketrichard » Sat Jan 11, 2020 9:35 am

daeum_tnaot wrote:
Fri Dec 27, 2019 2:35 pm
To me, this is just another sign about Cambodia how difficult it is to do something that should be fairly straightforward.

Has anyone had experience with the part about bringing the will before a judge to be validated? That sounds like a nightmare.

My (brief) experience with lawyers here is that it is fairly opaque, which allows lawyers to charge more or less as they see fit. There's no "market" for services, as it were. I thought about an innovation to create an app, kind of like a TripAdvisor for lawyers, to help consumers wade through this.
agree;
Just for reference, in Thailand...
The most common last will and testament in Thailand is a last will in writing, dated at the time of making and signed by the testator in the presence of at least 2 witnesses who sign their names to certify the signature of the testator (section 1656 of the Civil and Commercial Code). It is not required that such a will is notarized or registered for it to be a valid legal will.
https://www.samuiforsale.com/family-law ... i-law.html
In a nation run by swine, all pigs are upward-mobile and the rest of us are fucked until we can put our acts together: not necessarily to win, but mainly to keep from losing completely. HST
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