Where there’s a will, there’s a way to protect your family (November 2020)

I have published articles on this topic before but in light of the recent changes to the personal status laws in the UAE, this has been updated to cover the new rules.

If you have assets, and more importantly, if you have children, then you need a Will. This is a subject that many people are reluctant to address but there are many misconceptions and an all too common reluctance to talk about the relevant issues. In this article I want to set out a few facts and answer the most popular questions that I am asked.

Who needs a Will?

In short, just about everyone. If you have assets you will want to specify you will receive them after your death. By leaving a Will that clearly states who should receive your property and money when you die, you can prevent unnecessary distress at an already difficult time for your family or friends. Assets can also be distributed faster.

family protectIf you have children it is important to have a Will so that in the terrible event of both parents dying you get to specify who would bring them up. If you do not specify guardians then the decision will rest with a judge and they will choose whom they deem to be suitable which could well be family members who do not share your views.

For expats, there is the dual consideration of assets in home countries, in the UAE, and sometimes for property in a third country plus the different inheritance rules in each jurisdiction. Complicated situations require proper planning and proper advice.

What happens if you die without one?

Without a Will you have no say in what happens and anything you own will be distributed in accordance with the law of the land where they are located or your home country laws, and this may not be what you want, especially as a spouse may not be a sole beneficiary.

If you die intestate, the legal term used when someone dies without a Will, it not only complicates matters but it can also take much longer for the estate to be settled, that is, for the assets to be distributed. If you have a spouse or children who need money to live on this can be a real problem.

What are the new laws in the UAE?

Changes to legislation came into effect in November UAE and covered a range of issues. You can find an overview for all the areas in this article:

New personal laws in the UAE but what do they really mean for you?

In respect of wills, the big change is that expats will be able to have the inheritance rules of their home country applied instead of Sharia law and interestingly, this applies to non-Muslims and Muslims alike. Prior to this, Sharia applied to all assets for Muslim expats with no option to contract around that and non-Muslim expats had to write a local will if they did not want Sharia distribution of assets on death.

One big exception to consider

The new changes do not apply in respect of property in the UAE so if you own a villa, apartment or commercial premises, Sharia law will still apply.

This image shows a standard distribution in accordance with Sharia and if you do not want this to apply, you will require a UAE will but note that this is not an option for Muslim expats.

I have had people say that if this is applied, family members will just transfer their share of ownership but this can be far more complicated that it might appear. Not only can it cause family conflict but there can also be tax issues in home countries. Far better to set up a will so that there are fewer problems and financial matters can be settled more quickly at a difficult time.

What if you don’t want home country distribution of assets?

Not everyone will want their home country rules to apply and it can also take some time for local courts to verify the inheritance rules of another country. This is certainly progress but can be more complicated that it might appear.

  1. The information published refers to country of ‘citizenship’ which means the passport an expat is using. If someone has more than one passport or nationality, it is likely to be the one they use for their residency visa.
  2. A number of countries have what is known as ‘forced heirship’. This means the distribution of assets in death is laid out in law and assets pass to ‘protected heirs’, generally a spouse and children, and cannot be changed no matter what the individual requires. Not wholly dissimilar to Sharia law distribution in many respects. Such countries where forced heirship applies, to varying degrees, include France, Portugal, Germany, Spain, Cyprus, Brazil, China, Japan and many more.
  3. In countries that don’t have any version of forced heirship, there is usually a system that permits the bulk of assets to go to a spouse and then children but many people will have additional requirements. If you want to leave an uneven distribution, to take advantage of inheritance tax provisions by skipping a generation, to make gifts to godchildren, cousins, parents, friends, or charities, you need a will.

I believe it will be quicker to settle an estate if a local will is in place. That applies in home countries too. It is easier for those left behind if this process is made quicker and simpler.

Will the UAE authorities take my children?

I have seen this rather scaremongering claim many times but it is simply not true. The UAE Government does not want to take the children of expats and the only time a child may be taken into care is if both parents die, or are incapacitated, and there are no instructions as to who should look after them in the short term, nor any family members in the vicinity who can step in.

Do I really need a UAE Will when I am living here?

This depends on your personal circumstances. For many expats who have limited assets in the UAE and do not own property here drawing up a second local Will is not always necessary but the cost of a simple will has reduced in recent years.

Given the delays in settling an estate on death, there can be several benefits in having a UAE will even if you don’t own property. Even if you don’t require a UAE will, you are likely to require a home country will and this is essential if you have minor children and want to organise temporary guardianship for them.

Many people are put off by the cost but wills are often not as costly as you may think and are usually a small price to pay to look after your family properly.

What are the UAE will options?

DIFC

The DIFC (Dubai International Financial Centre) Wills Centre (formerly the DIFC Wills & Probate Registry was set up in 2015 and is a method of registering wills that means that Sharia law will not apply to property. This route is available to non-Muslims only

This is a useful option for anyone who own property in the UAE as it is the most complete way to ensure that the property will be passed wholly to your spouse, or to your preferred beneficiaries. It is not cheap with the registration fees being AED 10,000 for a single person, or AED 15,000, plus VAT, for a married couple, on top of the cost of writing an appropriate Will, but that is still a small sum in comparison to a property worth several million Dirhams.

Unlike other local will options, it can be possible to include assets in other countries in a DIFC will and temporary guardianship can be included as well as permanent ones.

Although this option is fairly costly. I consider it the most secure and comprehensive way to fully protect assets for absolute peace of mind.

ADJD 

The other local option, available to all non-Muslim residents in the UAE,  is with the Abu Dhabi Judicial Department (ADJD). Suitable Wills can be registered with the Wills and Probate Registry established by ADJD.  This allows residents of any emirate to register their Wills and assets.

In the event of death, the ADJD Will must be presented to the Courts under ADJD. The Court will issue the Probate Order which would allow the Executor to administer the estate of the deceased. This is likely to take longer than the DIFC route but is significantly cheaper. As well as the cost of drafting a suitable will (see later in this article), there is an official translation charges AED 850 (AED 892.50 inc VAT) for a single will or AED 950 (AED 997.50 inc VAT) for mirror wills, plus a registration fee of AED 950.

Dubai Courts has an option for expats to register Wills with them but I do not recommend this option as it can take a long time for assets to be unfrozen and there are no guarantees

What is the temporary guardianship about?

If you have children under the age of majority, your Wills should specify your chosen permanent guardians in the event of the death of both parents. In many cases the permanent guardians will be resident in a home country so this is a document that is arranged as an adjunct to a main Will and states who you wish to look after your children before the permanent guardians arrive in the UAE, and also allows them to take a few days to get organised before jumping on a plane. At time of writing, few people are able to travel to the UAE and this situation may continue for a while. It means that the children can stay with people they know, in a familiar place, thus lessening the shock and loss at a traumatic time.

This is not mandatory but is a ‘belt and braces’ approach and I believe it to be a good idea for younger children particularly. Depending on the type of Will chosen, there may not be an additional cost to arranged a Letter of Wishes for an Interim Guardian.

We’re Muslim so what are our options?

For expat Muslims, the new rules mean that they will no longer have Sharia law applied to assets on death, unless that is the law of their home country. For most, home country laws can now be applied as mentioned earlier in this article.

Expat Muslims can still make a form of UAE will but there are more restrictions. This would be a Sharia compliant will, something that is only an option for Muslim, despite the incorrect claims that I see. Generally, an individual has free choice regarding one third of their assets but there may be the ability to make gifts in accordance with the Hiba guidelines.

It is also possible for Muslims to specify guardians for minor children if both parents agree. Under UAE law if one parent dies the surviving natural parent will have care of the child, unless a court rules to the contrary which is not common.

It is important to get advice from a lawyer who is an expert in this area and authorised to write such wills.

How long does a will last?

A Will can last indefinitely but in practice they will need to be rewritten later in life as circumstances change. In most countries a will is invalidated by marriage. This means that unless a new one is written the laws of intestacy will apply. This is not the case upon divorce with an ex-partner often retaining a claim unless a new will is made.

It is usual to write new Wills after the birth of a first child (which can include provision for any future children) and at retirement, but requirement depends on your situation.

How do I go about getting a will?

Wills should only be written by expert lawyers. I work with a locally based legal practice who write the Wills for my clients but I have streamlined the process and reduced the fees. The procedure is that you meet with me to clarify your particular circumstances (although this can be done on the telephone at the moment), to obtain answers to questions, and to decide what type of Will you need. I will go through the implications of the relevant laws and run through what else you can do to protect your family.

Once you have decided to go ahead, you have to complete a questionnaire, provide proof of identity, and then the lawyers can start preparing your Wills but you do not have to have additional meetings with them (unless selecting the DIFC route where there is normally a second step although this is done by video meeting at this time) we will oversee the process. Note that there is no charge for the initial meeting/discussion to discuss options and

What else do I need to consider?

The majority of expats would like a say in how their assets are distributed on and want to make financial provision for their spouse and children. As bank accounts in the UAE are frozen in the event of the death of any account-holder, steps should be taken to ensure that the remaining spouse is not without access to money.

I recommend separate bank accounts and keeping the majority of money offshore. Life policies should be in place and set up correctly which often means putting them in trust to avoid inheritance tax and ensure a faster pay-out of proceeds.

If you and your spouse are from different countries, this can affect the inheritance rules and you need to be aware of this. This is particularly relevant to British expats with a foreign spouse.

More information can be found in these articles:

The benefits of offshore banking for expats

Protecting what matters most – your-family

Looking after your family in the event of death is about more than the will, although that is very important, and part of proper planning is to review all the associated issues.

 What does it cost to write a will?                                                                                                                                                                                                                                                                      In most cases, the cost of writing wills is less that you might think and I have reduced prices with a respected legal practice for my clients.

The costs will vary depending on a number of factors including nationality, religion, where assets are held, complexity of situation and other requirements. For UK and Commonwealth citizens who require relatively straightforward Wills written in accordance with home country rules the fees start at AED 3,150 including VAT.  This is for both single people and couples with almost identical requirements.

If you have an existing Will that reflects your current wishes and simply require a Letter of Wishes for guardianship as a standalone document, or to stand alongside a home country Will this usually costs AED 1,750.

For UAE wills, there are additional charges as mentioned earlier in this article.

How do I get started?

advisorThe first step is to arrange a meeting or call with me and we can take it from there. No pressure, no obligation, just professional and ethical advice tailored to your specific circumstances. During the meeting I will also explain the implications of UAE law in respect of bank accounts and other assets and answer any questions you may have on this or other topics.

As with most matters, personalised advice is required based on your specific situation. To arrange a meeting to discuss arranging a Will, or for advice on any other personal financial planning issue, please email me at keren@holbornassets.com 

If this article seems familiar, it is an updated version of ones I published in October 2016 and March 2020 includes additional information. Please take a look at the other useful articles on this website.

 

About FinancialUAE

A qualified and experienced Independent Financial Adviser based in Dubai, UAE. Professional and ethical. Freelance writer on personal financial issues & the On Your Side column in The National. Weekly co-host in Capital Radio UAE. Senior Partner at Holborn Assets LLC, Dubai, UAE.
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1 Response to Where there’s a will, there’s a way to protect your family (November 2020)

  1. Pingback: Where there’s a Will there’s a way to protect your family | Financial Planning in the UAE

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