First things first! If you are an expatriate living in Dubai, or somewhere else in the UAE, you should make sure you have Will arranged in your home country.
In Europe a Will covers moveable assets, such as cash in your bank account. However different jurisdictions have certain rules so check.
As an Expat, there are even more reasons to have a valid Will in place. Different countries have different rules around inheritance, property and tax. You need a Will that protects your assets as much as possible and ensures that your wishes are carried out in regards to your estate.
Why do you need a Will in the UAE?
Where no Will exists, local law is applied to all assets within the borders of UAE.
UAE Federal Law Number 28 on Personal Status 2005 is the relevant statute for treatment of assets and children of the deceased within the borders of UAE. Within Dubai, Dubai Law 15 of 2017 Concerning the Administration of Non-Muslim Estates in Dubai and Execution of their Wills, provides additional information on the treatment of assets within Dubai.
UAE Federal Law 28 of 2005 Article 1(2) provides that non-Muslims may distribute their assets in accordance with their ‘community or confession’, which is usually interpreted as meaning the law of the non-Muslim expatriate’s home country. There are a number of caveats, such as immoveable assets e.g. real estate and the UAE reserves the right to determine what is and is not an immoveable asset.
Sharia Law is applied to anyone who dies without a Will in the UAE, regardless of religion. In essence Sharia principles dictate that all assets belonging to the deceased are frozen when you die in UAE. This will include property you own, any investment funds, all bank accounts including ATM cards and any other financial holdings.
It is also imperative to note that having your spouse as a joint account holder won’t help, as the bank account will be frozen irrespective of this. Even gratuity payments can get held up by the courts and it may not even be the specified beneficiary that ultimately receives it, if it's not legally expressed before death.
What many do not realize, is that if a husband dies, despite being domiciled from another jurisdiction, preference will be given to the closest male relative on the husband’s side of the family. So too often widows will find themselves in tremendously difficult situations with no access to any money.
What’s often not understood is that this also has implications on child guardianship. Because preference is given to the closest male relative on the husband’s side of the family, in the event of a man’s death, the mother of his children may not get automatic custody.
For those that have completed a Guardianship document in Dubai or the UAE, you must remember that these are merely an expression of wishes and are not legally binding and so does not need to be honored by the courts.
So if you own property, have children or keep a large amount of capital in bank accounts in the UAE having a valid Will drawn up is even more important.
If you want to be sure your wishes will be met after you die, then it’s important you have a Will. A Will is the only way to make sure your savings and possessions (your estate) go to the people and causes that you care about.
Losing someone is incredibly hard, and the last thing any of us want to do is spend those hard times haggling with lawyers and family members. Making a Will keeps your loved ones from having to deal with bureaucracy in a time of sadness.The prospect of contemplating mortality can be hard but making a Will doesn’t have to be.
So what should you do?
In 2015, Dubai International Financial Centre (DIFC) was launched. There are now 5 different Wills available under the DIFC jurisdiction. They are: Financial Assets Will, Guardianship Will, Business Owners’ Will, Real Estate Owners Will and Full Will.
The DIFC is a common law jurisdiction which enables non-Muslim expatriates to gift assets including real estate within the Emirates of Dubai and Ras Al Khaimah to whomever they wish, i.e. circumventing the forced heirship rules that would normally apply.
In all instances you should seek regulated and qualified advice. Any questions related to your estate planning should be routed through a Lawyer or Financial adviser.
In the meantime, as a precaution it is advisable to move most of your money offshore. The UAE has a robust banking system but if Sharia Law is applied on death it could freeze your assets. Moving any large sums of capital you have offshore can prevent this.
Of course you will need to keep some capital here in the UAE and is recommended that you keep a working balance for day to-day requirements, but move any long- term savings or large amounts of capital. Moving your capital offshore means it will be governed by that jurisdiction and will no longer fall under the rules of Sharia law.
If you have children, own any property, financial instruments or hold cash in the UAE it is strongly advisable to seek advice in this area in order to make sure that your family is sufficiently protected.
A few jargon busting tips for those looking to set up a Will:
Testator: The person creating or leaving a Last Will and Testament.
Beneficiary: A person who receives a gift as per the Will. This can be a person, a charity, or any other organisation.
Executor: A person selected by the testator who carries out the wishes of the Will. Executors will distribute assets, deal with creditors, make tax payments, and perform other services on behalf of the estate. The executor can also be a beneficiary.
Witness: A competent person who has reached age of majority that is present with the testator for the signing and dating of the legal Will. Witnesses have to to be disinterested parties; in other words, they can not be a beneficiary,
The following is a general summary of current understanding of Wills in UAE, it is not intended as legal advice.