This means if you die without a will, the local courts will examine your estate and distribute it according to Sharia law. While this may sound fine, its implications may not be so. All personal assets of the deceased, including bank accounts, will be seized until liabilities have been discharged. A wife who has children will qualify for only 1/8th of the estate, and without a legal will, this distribution will be applied automatically. Even shared assets will be frozen until the issue of inheritance is determined by the local courts, and surviving family members are often left without access to money during this period.
The absence of a will may also goad authorities to intervene in the guardianship of bereaved children, especially when death befalls both parents simultaneously. Unless a will specifies who should raise your children, there is a possibility that their care may be entrusted to others.
A properly drafted will, can ensure that you are in full control of what happens to your family even after you are not with them.
If you own or co-own a business, a significant portion of your wealth - and your family's source of income after your death - is probably linked to it. It is just as important to plan for its future and ensure its seamless continuity and success. You can take recourse in strategic plans like setting up trusts or engaging in numerous off-shore solutions. But since this is a complex area, it is essential to use professional lawyers who can advise you expertly.
If you don't have proper plans in place, you simply cannot be sure what will happen after your death: whether your family will be provided for, who will look after your business, and when and how your beneficiaries will actually stand to benefit. It is best to be prepared today for all that may and can happen tomorrow.
Who Needs A Will ?Read More
- You are automatically subject to unclear UAE regulation as to inheritance/succession issues for expats.
- You do not have any valid and recognised EVIDENCE OF YOUR INTENTIONS – without a Will courts have a choice, whether to apply Sharia Law or Laws of your home country.
If Courts apply Sharia Law the implications can be:
- Courts choose an executor on your behalf.
- Courts can intervene and where you have children CAN APPOINT guardians even if the mother is surviving.
- The distribution of the estate may be contrary to your wishes; as Sharia Law involves fixed ratios to be distributed to legal heirs.eg Wife only receives 1/8 of the total estate.
- Bank accounts and assets get frozen.
- Visas canceled for spouse and your dependants.
FAQ – Wills and Estate Planning
Mr A and Mr B are business partners and equal shareholders in a LLC company in Dubai. Their business is growing rapidly and they are extremely successful. Should Mr. A worry about the future, if one of them dies?
In the event of death of either shareholder, local probate laws apply and this may not meet the succession requirements of either as the shares do not pass automatically by survivorship in this jurisdiction. However, it is possible to secure arrangements to avoid lengthy local probate and guarantee business continuity.
If my husband dies will our joint bank accounts get frozen?
In principle, the government will freeze accounts until all liabilities of your husband are cleared such as loans, credit cards and business debts; this can happen within one hour of a fatality! The procedure for reactivating the accounts is complex, however the process is expedited where a UAE wills in place, another reason to make sure you have one!
Mr and Mrs Smith buy a villa in Dubai in joint names. Suddenly Mr Smith meets with a fatality in a car crash.
He has no will in place. As there is no will in place, the property will be distributed as per Shariah law meaning that Mrs Smith could receive only 1/8th of her husband’s estate despite the property being in joint names.
If I am an expatriate with bank accounts in Dubai, will making a will help my family if these accounts get frozen?
The speed with which you can get an account unblocked is much quicker with a will than in the absence of one. Without a will, more documentation is required and the process is more time consuming.
My husband runs a company and sponsors me and our children. What effect will his death have on our resident visas, staying in the UAE, and managing his company?
It is a grim reality that upon a sponsor's death, the family's visas will be cancelled within 30 days and they will have to leave the country. In the absence of a will, the future of the company also remains uncertain. There are various contingency plans for those wishing to stay in the UAE and/or ensure smooth business transition.
If I don't have a will, is it correct to assume that my spouse will be the automatic guardian of my children?
If you do not have a will, and you die before your child reaches the age of 21, the courts can intervene and appoint a guardian on your behalf. In these circumstances, it is very unlikely that their decision will reflect your wishes.
Mrs Smith, a mother of three, has recently become a widow and she understandably assumes that she will automatically be the legal guardian of her children. A court hearing has been set.
The guardianship of Mrs Smith's children will be decided by a Dubai court under Sharia law and in many cases the guardianship will often be appointed to the father-in-law, of the family. If a will had been in place then the wishes of the father would not have been questioned.
I own property in the UAE and abroad. What are the consequences if I don't have a will?
In the absence of a will, you will be classed as 'dying intestate'. The problem can escalate if you own property in more than one country, and your family can be subjected to prolonged legal battles. In the UAE, the consequences can be far more serious, and your assets may be distributed in a way that is contradictory to your wishes.
We recently bought our villa in Dubai in joint names. Will I automatically inherit that property upon my husband's death?
The general rule is that inheritance issues for Muslim nationals, will be dealt with in accordance with Shariah, and for foreigners, the law of the deceased's home country will apply. There is however some uncertainty with the law surrounding inheritance issues for UAE real estate owned by foreigners and for this reason it is advisable to make a will to clarify a deceased's wishes regarding the disposal of his estate. This is reinforced by the fact that although you have property in joint names, in the UAE there is no 'right of survivorship' concept found in other jurisdictions (i.e. where property passes to the surviving joint owner upon death of a joint owner). Ultimately the courts will decide on a case by case basis.
I am still young. When is the ideal age to get my will made?
For many people, making a will is one of those things that you intend doing someday, but never get around to. Thinking about your own death is not a pleasant activity, but postponing the writing of a will results in dying intestate, leaving you limited or no say in the future of your wealth, assets, business or even children. Bearing this in mind, the obvious answer is that the best time to make a will is 'now'. Although the process may not be enticing, it will give you the peace of mind that your affairs will be dealt with as you intend.
THE DIFC WILLS AND PROBATE REGISTRY
The WPR is a Dubai Government initiative. It is a Registry based in the DIFC and enables non-Muslims to register their wills (“DIFC Wills”) in respect of Dubai movable and immovable assets (“Dubai Assets”).
What are the advantages with DIFC Wills?
The DIFC is a Common Law jurisdiction and the Grant of Probate is issued out of the DIFC Courts. The DIFC Courts are based on a system of binding legal precedents, unlike Civil Code jurisdictions, which laws are based purely on enacted legislation and there is no system of stare decisis. This aspect provides certainty to those who wish to avail of the DIFC Wills.
Why should you not just have your Will from your home jurisdiction ?
Presently the Dubai Courts of Inheritance are presided by Sharia Judges and they rule pursuant to Sharia. Your Executor would have to file an appeal against the Sharia Succession Order to have the home Will upheld (and subsequent to Grant of Probate or Court Order from your home jurisdiction being issued). Not only is the filing of the Appeal, in the Courts here, time consuming but it is an expensive process.
What about these Sharia Compliant Wills which I have been hearing about?
Be careful with those firms stating that they are drawing up Sharia Compliant Wills: Article 242 of the UAE Personal Status Law states that any provision in a Will contrary to Sharia is void. Wills which are just translated into Arabic and notarised do not make them Sharia Compliant.
If you have already made such a Will, you may find that they it may be unenforceable in the UAE. If they have been drawn up by unlicensed will writers posing as legal consultants, or the Executors have not been able to enforce such Wills, please file a complaint against them at the Legal Affairs Department of the Rulers Court of the Government of Dubai: firstname.lastname@example.org
Process and steps to register a DIFC Will
- First, take legal advice as to whether you should or should not have a DIFC Will and how it should be drawn up. Consideration should be given to whether legacies should be spelt out or not, since any amendment would attract fees payable to the DIFC Registry. Furthermore, alternate executors and 2nd tier level of beneficiaries should be considered. In addition, Interim and Permanent Guardians can be considered for your minor children (below the ages of 21).
- Second, fill in the form, which is now available with Trench & Associates, spelling out the details of yourself as the Testator, the Executor(s), the Guardian(s) and Beneficiaries.
- After the Will is drafted and finalized, then book an appointment online or we can do so for you.
- . On the date of the appointment, please bring along the execution copy of your Will, your original Passport or another means of identification. If you do have your Emirates ID, please bring it along.
- If you are making mirror wills, both you and your spouse must be present.
- Please bring along 1 witness. The witness cannot be a beneficiary. Trench & Associates will have a witness to attend with you.
- The Registrar will go through and read out the Will to you and then witness it. The other witness will witness at the same time.
- Interim Guardians are those who are present in Dubai with an Emirates ID. They are provided with certain powers but must defer to the Permanent Guardians as to travel, as per the laws of UAE.
- Permanent Guardians are those with whom the minor child will permanently reside.There is no need to mention their powers since these are already provided in full in the WPR Rules.
- If you have a minor daughter, you must appoint either a couple or a woman to act as the Interim or Permanent Guardian(s).
- It is not a must that you mention Interim and Permanent Guardians in your Wills when you have minor children. Your Wills made in your home jurisdiction may already provide for Permanent Guardians.
- Guardians must not be Muslims.
Probate is issued upon application by the Executor or in his absence, a Beneficiary, submitted to the DIFC Courts. The DIFC Courts will issue the Grant as well as make orders as to Guardianship and is the competent authority to rule in respect of any disputes in probate matters.
Location and details of WPR : DIFC PROBATE
We are At
InvestME Financial Services Dusseldorf Business Point, Office : 608 Al Barsha 1, Dubai
Phone: +971 (0)4 453 4400