Will a “will” help in the UAE for non-muslim expats?
It is a debatable proposition as to how the movable and immovable assets of non-muslim expats in the UAE will be dealt with, upon their demise. There are conflicting views whether the laws of deceased home country shall apply on inheritance matters or the local UAE laws, i.e; shariah laws will prevail. It is also important to acknowledge that UAE is a civil law country and therefore the judicial precedents are not binding in nature, which further adds to the uncertainty in the position of inheritance laws. The exact interpretation of the legislations is a judge’s individual view and his definition of the applicable laws.
Inheritance laws in the UAE
Inheritance matters in the UAE are primarily governed by two federal legislations viz; The Personal Affairs Law No. 28 of 2005 (“Personal Affairs Law”) and the UAE Civil Code, Federal Law No. 5 of 1985 (the “Code”).
The UAE inheritance laws make a strict demarcation between the laws governing inheritance of movable and immovable assets in the UAE. In terms of Article 17.1 of the Code, the movable assets of the deceased shall be governed by the law of deceased home country at the time of his death.
However, Article 17.5 of the Code states that the immovable assets of the deceased shall be governed by laws of the UAE, i.e; the sharia’h law. In order to liberalize the law, Government of UAE legislated the Personal Affairs Law in 2005 which permitted the non-muslim expats to opt to use the law of their home country for distribution of their assets in the UAE, irrespective of the fact whether or not the non-muslim has a legally recognized will in his/her home country.
Article 1 of the Article 1 of the Personal Affairs Law states that:
1 Pursuant to Article 17.1, a procedure is required to be followed.
STEP 1: An application needs to be made for a grant of representation in the deceased’s country of domicile.
STEP 2: Once the probate is obtained, it must be notarized, legalized and/or attested before it may be recognized by the UAE authorities as authentic and valid.
STEP 3: On recognition in accordance with the laws of the country to which the deceased belonged, the trustees or executor have full power to administer the estate of the deceased in accordance with his/her wishes.
In case of intestacy, a letter of administration is also required to be obtained from the country of domicile of the deceased. This document also needs to be notarized, legalized or attested. The trustee must then approach the Court to apply for recognition of the will.
copy of the law certified by their respective consulate or embassy in their place of residence. In practice, the courts rarely allow this option of opting laws of home country by the deceased.
The uncertainty reached a higher level when recently the Government of Dubai stated in their official website that UAE courts will adhere to Shariah law in any situation where there is no will in place.
Upon death of the Expat, irrespective of whether he/she has a will or not, the following probate process takes place.
- In terms of the sharia’h laws the bank accounts are frozen, whether in personal name or in joint names. Access to these accounts are not permitted until the inheritance matter has been adjudicated.
- A death notice from the Central Bank is issued to all the banks by way of a memorandum. All payments to be made by the account are immediately stopped, however, all payments deposits are kept alive
- The court initiates an estate audit to determine the inheritance shares
- The legal heirs of the deceased or the representatives of the deceased may withdraw money from the frozen account only after acquiring a court order.
- In case of joint accounts, the court contacts the involved partner(s) and reviews the percentage of shares of the deceased before unfreezing the account
- If the deceased has a partnership company, that company’s account is made inaccessible to any partner until the deceased is severed from the trade license and any partnership contracts
- The residence visas of all the dependents are cancelled
- The Embassy/Consulate of the home country is informed in terms of applicable international laws
In determining the inheritance shares and issue a succession certificate, the sharia’h courts ensure that the debts of deceased are settled from his estate before distributing to his successors.
Bank accounts, visas, guardianship etc
To prevent all accounts being frozen, it is advisable to have individual bank accounts rather than joint account, such that when one of the spouses dies, the account of other spouse is available.
As will can be executed only upon the death of the person, it is advisable that the husband and wife have a general power of attorney authorising to act on each other’s’ behalf in case either of them are critically ill or disabled but not dead.
It is advisable to have a will as there is a fair chance of shariah law applying to the probate procedures. The expats may also loose huge proportion of inheritance to taxes if the assets are parked outside the UAE. Without a will, the court may appoint the guardian of surviving minors, against their wish. Will is the only legal instrument that can be used to appoint guardian for the children. It is also advisable to appoint temporary guardians of the children while the permanent guardians make their way to the UAE from their home country and till the time the probate is granted.
Drafting and notarization of will
In order to have a will, the testator must have the following information handy.
- Assets in the UAE (with proof of ownership).
- Liabilities, and to whom they are to be paid.
- Proof of residence.
- Passport copies of the entire family.
- Other official documents such as marriage certificates etc.
Note: Applications must be submitted in person or by a representative holding the power of attorney.
The testator would determine how movable assets and immovable assets in his or her estate should be distributed and who should be the Executor of their Will.
The Will may include assets located in and outside the country. However, if the testator owns property, for instance, in India, it is advisable to make a separate will for those assets.
No sooner than the will is drafted, it is needed to be :
- Translated into Arabic
- Attested by the Dubai Courts or Notary, and
- Attested by the Indian Consulate.
It is also possible to cancel or amend a Will. This would require the entire process to be repeated.