Will writing in the UAE
In the UAE, the total expatriate population as per the latest population statistics was 8.45 million which is over 80% of the total population of the country. This cosmopolitan culture makes inheritance laws, an important matter of concern for the people living in this country. This concern mainly arises when a person dies intestate in the country i.e. without leaving a Will, the UAE court will apply principles of the Sharia Law for the distribution of his assets in the UAE. Therefore, if a Non-Muslim expat wants his assets to be distributed in accordance with his own wishes or with the laws of inheritance prevailing in his home country then he is well advised to have a registered Will in place.
Why do you need a Will in the UAE?
Fundamentally, the UAE inheritance laws are governed by two Federal Laws, the UAE Civil Code and the Personal Affairs Law of No.28 of 2005. Dying intestate means when a person dies without leaving a Will. According to the UAE Civil Code, if a person dies intestate in the UAE, the courts may adhere to the Sharia Laws with regard to the inheritance of his assets and custody of children. Under Sharia Law, if the deceased is survived by mother, father, wife and three children in which one is a son and other two are daughters, the proportion of share each will receive will be, the wife shall receive 1/8th and mother and father will get 1/6th each, finally the remaining wealth will be shared among the son and daughters, with the son getting the share of two daughters (i.e. the son will get double the share of a female child). These principles of Sharia Law will apply irrespective of the fact whether or not the non-Muslim expat has a legally recognized Will in his home country.
As a way-out from this matter of concern, the UAE Civil Code provides that the law of the home country of an expatriate will apply to determine how his movable assets like cash, investments, car, personal items etc. will be distributed. However, with regard to immovable property, Article 17(5) of the Code states that “the law of the UAE shall apply to Wills made by alien disposing of their real property located in the state.”
Further, the Wills & Probate Registry, established as an ancillary body of DIFC’s Dispute Resolution Authority (DRA), have created a legal regime for non-Muslims foreigners with assets in the United Arab Emirates to allow the creation of Wills under the common law principles. This means that, if a non-Muslim expat registers his Will with the DIFC Courts Wills Service, his assets will be distributed according to his own wishes.
A person may register his Will under either of the below mentioned authorities:
- DIFC Wills Service Centre (jurisdiction only in Dubai and RAK).
- Dubai Courts (All over the UAE).
- Abu Dhabi Judicial Department (All over the UAE).
Other reasons to have a Will registered in the country includes:
- Control of Bank Accounts: Once a person dies intestate in the UAE, all his assets including bank accounts will be considered in a frozen state. This means no further transaction will be allowed before the law interferes and decides as to the distribution of assets and this state applies to both single as well as joint bank accounts. In such a situation, if there is a registered Will in place, it can be a critical instrument for the spouse to get the control of bank accounts upon the completion of the process of probate after the death.
- Guardianship of Children: Without a Will in place, guardianship of your children below 21 years of age may be determined by the courts as per UAE law. Only a registered Will can ensure appointment of your wife as the guardian of your minor children.
- Visa Cancellation: Upon the death of an individual (husband), the visa of his family will be cancelled and they will have to leave the country within 30 days. This means they will get only a short period of time to resolve all the important inheritance issues and a Will is the only instrument that resolves the distribution of assets in an effective and timely manner.
- Transfer of assets: DIFC Courts Wills Service allows non-Muslim individuals to register their Wills in English language which was not possible anywhere in the UAE earlier. If you are a non-Muslim, you can pass on your UAE based movable and immovable assets of any form precisely according to your own wishes through a Will registration process with DIFC Courts Wills Service.
- Service available for both residents and non-residents: DIFC Courts Wills registration service is available for residents as well as non-residents, it does not matter whether you reside inside the country or outside after the registration as long as you meet the below criteria:
- Over 21 years of age.
- Own movable or immovable assets in the country or have children below the age of 21 years living in the UAE.
- Simple registration process: The process of Will registration requires only the testator to visit the offices of DIFC Courts Wills Service located at Dubai International Financial Centre and formally sign the Will in the presence of an officer of the Wills Service who shall witness the signing. The testator is also required to bring an additional witness with him and this will reduce the chance of any claim challenging the validity of the Will in future.
- Common law principles: The DIFC WPR Rules are based on common law principles and legislation of other common law jurisdictions such as the UK, Singapore and Malaysia which make expats from western countries feel familiar with the principles and more comfortable.
- Short probate process: An important advantage of the probate process for DIFC Wills is that the executor can directly file the application for grant of probate without the involvement of lawyers. The process is simple and anticipated to complete standard probate matters within one month which is significantly shorter than any other court proceedings in the UAE.
Single Wills and Mirror Wills
Single Will: A Will for one person who is either not married or if married, has a spouse who does not have any assets in his/her name. This type of will is not suitable for couples having joint bank accounts or joint ownership in any properties. Though a single Will can cover all types of situations including distribution of property, guardianship of children, if applicable and executors, provision of gifts etc.
Mirror Wills: These are two separate Wills for married couples having identical or very similar wishes. Each spouse can make specific gifts of money or property or leave each of their entire property to any person they like.
While writing the Will, one should include the below aspects:
- Beneficiaries: A beneficiary is a person who will receive your assets remaining after paying off your debts and liabilities. It is also possible for you to pass on your entire property to a single beneficiary. In a normal scenario for a married individual, beneficiary will be his/her spouse and if spouse does not survive, the alternate beneficiaries will be the children. The testator can also choose other survivors like grand-children, parents, siblings etc. as alternate beneficiaries. Unmarried individuals can appoint beneficiaries based on their personal interests and circumstances.
- Executors: An executor is a person who will take your Will to the court of law to have it enforced after your death. Once the court issues probate order, executor will pay off the debts and distribute the remaining assets to beneficiaries. Normally a married individual appoints his surviving spouse as the executor.
- Guardians: If you are married and have children below the age of 21 years, you must appoint your spouse as the guardian in the Will who will take care of your minor children after your death. In a situation where both the spouses pass away together, the testator should appoint at least two alternate guardians who should be his/her closest relatives.
In the UAE, where people originally belonging to different law jurisdictions based on culture, religions etc., living together under the principles and laws of this country should not be concerned about the inheritance of their assets here. By writing and registering a Will under the appropriate authority, a non-Muslim expatriate can opt out from the application of Sharia Law principles in the UAE and can ensure that his/her assets are distributed according to his/her own wishes after death. Unlike other jurisdictions, UAE does not recognize survivorship rules which means that the property will not automatically be transferred to the survivor without being interfered by the court and decides to the distribution of assets. In such a situation, only a registered Will permits the non-Muslim expatriates to choose the application of their home country law to matters of personal affairs.
If a person has multiple properties or assets in UAE, he can form an Offshore Company in UAE and hold the assets and make will. Its easy to transfer the assets to the beneficiary when assets are held by an Offshore company.
Please contact our experts if you would like to know more about writing a Will in UAE or how to protect the assets by Offshore Company Formation in UAE.