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28 March 2024

Where there’s a will, there’s a clear future

Published
By Criselda E Diala

( LIZ RAMOS)   

 

 

Benjamin Franklin famously said “in this world nothing is certain but death and taxes”, and although UAE residents do not pay taxes, death is inevitable – and being prepared for what happens afterwards is key. When someone dies, loved ones are often left in the dark as they try to settle the deceased’s affairs including property, business and investments.

 

And there are many practical, as well as emotional, issues to deal with. Experts recommend drawing up a will as it allows the person making it to distribute their assets in the way they hope would avoid any family feuds.

 

But writing the document can be a confusing and difficult process, especially for expatriates with funds in the UAE and their home country. Laws related to death, inheritance and wills vary country to country, which is why lawyers say it is vital to make a will at the earliest opportunity so when the time comes any confusion is ironed out quickly and last wishes adhered to.

 

Carol Alderson, a legal consultant and partner at Al Midfa Lawyers and Associates in Dubai, says drawing up a will should be a priority. “As soon as you start accumulating wealth you should make a will, however old or young you are. No one knows what is going to happen tomorrow and it is important that your assets go to the people you want,” she says.

 

Mohammad Marria, Estate Planner of Just Wills, a United Kingdom-based company operating a franchise in Dubai, says many people do not understand the possible implications if they die without the vital document.

 

“Your will is the most important piece of paper you will ever sign,” he explains. “It is your last wishes on how you would like your estate to be distributed. And it’s not just about money and property. It is also about safeguarding the welfare of children. Without that document, things could get pretty nasty and messy.”

 

Expatriate Wills, a professional will writing company that has helped many British expats based in Dubai, says: “If you die intestate [without a legal last will and testament] then as an expat your estate will probably remain tangled up in probate, which causes prolonged legal battles and feuds even in the nicest families.”

 

As the UAE is a Muslim country, all courts adhere to Shariah – the primary source of Islamic law – but in some cases where the deceased has not left a will non-Muslims may not have to follow to it.

 

Although there is some confusion around how exactly this works, Alderson says: “The beneficiaries would need to revert to their own country in the first instance to obtain a court judgment. That document can then be used in the UAE courts to identify the wishes and national laws of the deceased.

 

“The families of a British subject, for example, who dies in the UAE without leaving a will could revert to the UK courts and obtain Letters of Administration from the court to identify the appropriate beneficiaries,” says Alderson. 

 

The UAE courts accept wills from expatriates of any religion or nationality. All expatriates with a valid residency visa can make a will.

 

Registration and attestation does not need to occur until after death when a number of different documents must be produced to the court in the UAE to obtain a succession certificate.  If the will gets authorised by the expatriate’s home country, then the wishes of the person can be followed regarding disposal of money and property.

 

“It is necessary for those living in the UAE, to make a will according to the laws of their own country. If the attestations are undertaken in the home country, the UAE courts do not have to look at whether the will is valid in the deceased country as the laws of inheritance of that country will also be required to corroborate the same ,” says Alderson. 

 

If there is no will, Shariah court’s decision could apply. Under this, there is a particular procedure based on a fixed share allocation system for the disbursement of a deceased assets to family members.

 

“If any one dies in the UAE, his UAE accounts will be automatically frozen by the bank as soon as authorities learn of the death,” says Alderson. The brother inherits twice as much as a sister, a son inherits twice as much as a daughter and the descendants of the mother, brother and sister inherit equally as do their descendants.

 

If the husband dies without any surviving children, the wife will receive two-sixths of the assets. “A wife is also entitled to claim maintenance from her sons, if appropriate, but would need to make an application to the court,” says Alderson. If a wife dies without any surviving children, half of her property will go to her husband, the remainder of her assets will go to her “asabaat” or paternal relatives – father, grandfather, uncles and nephews. If she is survived by her children, the husband will only get a quarter of the assets.

 

This will be reduced to one eighth if they have children. Under existing property laws, the UAE has allowed foreign ownership in some areas. As a general rule, inheritance issues for UAE nationals are dealt with under Shariah, but for expatriates if there is a will the property will be dealt with in accordance with that. “If someone leaves a property in a will it will automatically be distributed as requested and in accordance with the laws of the deceased,” says Alderson.

 

Marria says if a foreigner has drafted a will either in their home country or in the UAE, the local courts will honour their wishes provided it does not go against his or her’s country’s inheritance law.

 

“There are some countries that allow their citizens to delegate a portion of their assets to heirs if they do not have a will. The UK  has its own system called the Laws of Intestacy,” he says. India does not have a uniform code of inheritance law because its constitution  allows a person’s religion to decide on inheritance issues. France implements a different succession law where even very young children can inherit properties. Although preparing a will is not something many people relish Marria insists it is essential in the long term. “The basic principle is, if you do have something special you want to go to somebody, make a will,” he says.

 

Alderson says: “Seeking legal advice and seeing a qualified lawyer who specialises in making wills could save a lot of long and painful legal process after death.”

 

While most people refrain from discussing the realities of passing away, Marria says he just tackles it head on. “Death is guaranteed. It goes with life. There’s no magic wand that will stop it from happening to anyone. All we can do is be prepared for it.”

 

 

The numbers

 

Dh2,000: The average cost of aprofessionally drafted will

 

10: The number of days it takes to have a will approved

 

55%: The amount of Britons who have not made a will 

 

Dh60: The cost of getting a will approved by the courts

 

 

What you need to know

 

- Most countries have an embassy in the UAE, and they often hold a list of lawyers who prepare wills. Alternatively use attorneys in your home country. Al Midfa Lawyers and Associates can help
Call: 04 227 2701.

 

- A potential testator should list all of his or her assets and appoint an executor – a person who will make sure that all assets will be passed on to the rightful beneficiaries.

 

- Remember to keep separate bank accounts if you are married, and an offshore account. Bank accounts that are maintained outside the UAE will not be governed by the Emirates’ legal jurisdictions. For those who have existing insurance policies, check with your agents if you have properly filled out “beneficiary forms”.

 

- Documents or wills drafted outside the Emirates have to be notarised and legally attested before the UAE courts recognise them as valid.  Once the UAE has confirmed the authenticity of the document, the legal representatives or executors will be given full authority to manage the deceased’s estates.

 

- Expatriates who own property in the UAE should write a will, have it translated into Arabic and notarised at their embassy or consulate, to make sure the property is passed on as they wish.

 

- The person making the will needs to visit the court. The presence of two Muslim men as witnesses are needed to attest the application of the will. This is even if the applicant is not a Muslim. The Dubai courts can be contacted on www.dubaicourts.gov.ae or call: 04 334 7777.

 

- When appearing before a judge Dh60 must be paid to the court for the examination of the document.

 

- Once a will has been drafted, keep it in a safe and secure place. While a will has no expiry date and is valid for ever, it is highly recommended that it be revised depending on the testator’s circumstances, such as a change in status or addition of children.

 

- Prepare for the worst. Testators should specify “disaster clause details” in their wills. Since no situation in life is guaranteed, people should also be open to the possibility of a tragedy that may result to the death of all the members of his/her family. In this case, he/she should mention if he/she would want the assets to go to a trust fund or a charity organisation or to some other beneficiary.