Importance Of Having A Will In The UAE

Will in UAE for Expats
Many of us move to the United Arab Emirates in the hope of securing a brighter, sunnier future for ourselves and our families. As expatriates in the UAE, we are lucky enough to avoid taxes, but death remains an inevitability for all of us. It may not be a comfortable truth to confront, but we must do so if we want to ensure the safety and security of ourselves and the ones we love and care for.

It is never too late to get your finances in order, but if there is one thing that should perhaps come before any bigger financial decisions it should be that of drafting a will.

In the case that you may die in the UAE, it is important to leave a will behind, which is notarized in your home country, the UAE Ministry of Foreign Affairs, and further registered with the courts of the UAE. Or in the event you are making a Will in the UAE, the same should be notarized at the Notary Public attested with your home country’s Counsulate. The applicable law in the case of your death may be the law of your country of citizenship, unless one of your heirs specifically asks the laws of the UAE to apply to the particular estate case, you don’t leave a will behind or intestacy, or if you are Muslim, in which case the Sharia’h law may apply.

What is a will?
A Will is a legal document written by person when they are alive, which appoints a person to distribute their assets in percentage to their family & friends after they pass away.

Why should one make his/her Will in the UAE?
If you leave a will behind, which is properly notarized and registered, then the law of your home country may apply. Under the UAE Civil Code, Federal Law No.2 of 1987, Article 17(1) states: ‘Inheritance shall be governed by the law of the deceased at the time of his death.’ However, if you die without leaving a will, the laws of the UAE may apply to the estate matter. In addition, even if you leave a will behind, the laws of the UAE may still apply to immoveable property such as real estate. According to the Civil Code, UAE Federal Law No. 2 of 1987, Article 17(5): “The law of the UAE shall apply to wills made by aliens disposing of their property located in the UAE.” Article 1219(2) of the Civil Code provides that transfers of estate shall be subject to the provisions of the Sharia’h law. Article 1258 of the Civil Code states that the provisions of the Sharia’h law shall apply to wills. Thus, even if you have written, notarized, and registered a will in the UAE, UAE law may still apply to immoveable property such as your home. However, a Federal Law was passed at the end of 2005, the Personal Affairs Law (No. 28 of 2005), which may allow a foreigner to opt for the laws of his own country to apply on the question of inheritance of his or her property. However, it is still unclear if this law applies to immovable assets (real estate property). Article 11 of this Law states that any inheritance declaration that includes real property rights shall be registered in the real property register. (However, this does not guarantee that the law of the home country will apply to the matter of real property.) The law further states that no dispositions by any heir in connection with any such rights shall be valid or effective against third parties, unless such dispositions are registered. Therefore, in any event, it is important to register your interest in real property upon death of the owner. In order to register the interest in the real property: The relatives of the deceased person must apply to the Court for a declaration that identifies the beneficiaries; the beneficiaries then apply to the Sharia’h Court to commence succession proceedings; and the inheritance declaration is registered on the deceased’s title at the Land Department. The above-mentioned process must be followed in order for the beneficiaries to be possibly recognized as the owners of the property.

Procedure for Registering the Will at the Court
1. The applicant must have a valid residency visa to register the will with the Courts in the UAE.
2. The person making the will needs to visit the court. The presence of two Muslim men as witnesses with him or her to attest the application of the will is required. (Even if the applicant is not a Muslim.)
3. Original copies of the Emirates ID and passport (upon request) of the applicant and witnesses have to be submitted.
4. Payment of AED 2,000/- fees for each application is required. (subject to change)
5. The applicant needs to appear before a judge with the witnesses for an examination of the will application.
6. The applicant needs to submit documents which should be authorized by his or her country, regarding the terms of the will.
7. The applicant will later return to court to receive the certificate after submitting all the information.
8. But if the applicant wishes to cancel the will, the applicant will have to return to the court with the witnesses and pay a cancellation fee and submit all needed documents to get the will annulled.

Administering the Will
Upon recognition by the UAE government authorities of the deceased’s representatives and confirmation that the will may be distributed in accordance with the laws of the country to which the deceased belonged, the trustees or executors can administer the deceased’s estate. In order to get this approval, first an application must be made for a grant of representation in the deceased’s country of domicile. Once probate is obtained, it must be notarized, legalized and/or attested. Furthermore, in the case of intestacy, a letter of administration, which is notarized, legalized, and/or attested, will also need to be obtained from the country of domicile.

Protect your Immoveable Property
In order to ensure that your real property passes to the desired beneficiaries, it is recommended to form an offshore company with, for example, husband and wife as equal shareholders in the offshore company. However, any desired beneficiary could be designated as a shareholder in the company. The memorandum of association of the offshore company would then contain a trigger clause stating that the surviving shareholder becomes the sole owner of the property upon the death of the other shareholder. As shares are considered moveable property, the issue of Sharia’h law would not enter into the picture and the shares may pass according to the memorandum of association.

Take Matters into Your Own Hands
It is also important to know that upon death, an expatriate’s residency visa is cancelled and those family members on their sponsorship must vacate the UAE within 30 days. Furthermore, the local individual and joint bank accounts of the deceased expatriate will be frozen until probate and a court order are obtained, usually within the vicinity of one to two years. Therefore, it is important for an expatriate married woman to keep cash in an offshore bank account to ensure a cash flow in the event of a tragedy. It is also advisable to take out an annuity policy in the event that you have a mortgage or you risk having your house re-possessed in the event that you cannot make the mortgage payments during the time which the bank accounts are frozen and probate is being obtained. Before settling in the UAE as a family, it is important to be aware of the UAE inheritance and wills, trusts, and estates laws. Make sure to put arrangements in place which will secure the livelihood of your family in the event of a tragedy.