What happens to my family and assets following my death? Is my home country will applicable in the UAE? Who takes care of our children should something happen to me?
Questions that trouble a lot of expatriates living in the UAE. The DIFC Wills Service Centre (former DIFC Wills and Probate Registry) as a public entity of the Dubai Government and an ancillary body of the DIFC’s Dispute Resolution Authority offers, since May 2015, a first-of-its-kind service in the MENA region, one that allows non-Muslims a greater choice in determining how their assets in the UAE are to be distributed and in appointing guardians for their minor children residing in the UAE following their death. For a DIFC Will registration, the following four key criteria are to be met:
• The Testator is not a Muslim and has never been a Muslim.
• The Testator is over 21 years of age.
• The Testator owns assets in the UAE (however no requirement to be resident in the UAE).
• Any children for which the Testator wishes to appoint interim and/or permanent guardians for must be habitually resident in the UAE.
Legal Situation in the Absence of a Will
The distribution of assets following a death is normally guided by the UAE federal law (Personal Status Law and the Civil Transactions Code) and public order in accordance with the custom and principles of Shariah law. The UAE Courts will assess the Estate and most likely distribute the assets in accordance with Shariah law, where distributions follow strict regulations and forced heirship rules. Most of the expatriates are not familiar with these rules. In any case, until the inheritance is clarified, bank accounts and other assets remain blocked and subsequently companies might be temporarily paralysed as the shares are frozen.
Guardianship of minor Children:
In the event of a husband’s death, in accordance with Shariah law, the mother does not automatically receive the guardianship of her children. A surviving husband is usually appointed as a custodian and legal guardian of the common children. If both parents die, culturally, guardianship is given to the father’s side of the family.
The application of home country law to immoveable assets remains a grey area in UAE Courts’ proceedings. It is assumed that many have either abstained from buying property or investing in UAE companies because of this uncertainty, or have used an offshore company to secure these real estate assets.
Foreign (Home Country) Law Wills
In the past, people often set up wills in accordance with their home country law. The will was then translated into Arabic, stamped by the UAE notary public, Ministry of Justice and Ministry of Foreign Affairs and submitted to the UAE Courts for its honouring. However, the UAE Courts of first instance usually applied Sharia law instead of applying the Testator’s will. Subsequently, only by appealing the court decisions, the will was honoured as initially drafted.
The UAE Court proceedings are very complex for foreigners, as the court language is Arabic and all documents need to be translated into Arabic. As the UAE courts are usually surcharged with cases, the proceedings can take several months if not years to be completed.
DIFC Will Service Centre
In May 2015, the Dubai International Financial Centre (DIFC) opened the DIFC Wills and Probate Registry (today DIFC Wills Service Centre), which allows non-Muslims to freely dispose of their UAE assets in the event of death (testamentary freedom). Since 2017, Ras Al Khaimah assets can be included as well. Newly, since June 2019 all assets in the UAE can be included in a DIFC Will – a Full Will can even cover worldwide assets.
The Service Centre is an administrative body and does not have judicial functions. It is the DIFC courts issuing the probate grants and court orders for the distribution of the UAE assets and guardianship orders for the protection of minors.
The DIFC wills can finally promote certainty among expatriates, promote investment in the UAE and avoid family members becoming involved in uncertain proceedings that can be encountered in the UAE courts. To the relief of expat families in the UAE, the provisions for guardianship of minor children can be included.
Different Types of DIFC Will
1. As a parent, you are concerned about the welfare of your children and the arrangements for their care should you and/or your partner pass away. With the “Guardianship Will”, the Service Centre allows the parent(s) to register a DIFC Will solely providing for the appointment of guardians for the Testator’s children (of 21 years old or younger) being residents in the UAE. Following the death of the Testator, the DIFC Courts can issue both ‘Interim Guardianship Orders’ as well as ‘Permanent Guardianship Orders’, honoring the Testator’s wishes - provided that the nominated guardians meet the eligibility requirements and their appointment does not contravene UAE public policy.
2. Furthermore, the Service Centre provides a DIFC Will specific to the Testator’s real estate properties situated in the UAE. This “Property Will” can encompass up to five real estate properties (or a share in up to five real estate properties).
3. In case the Testator intends to dispose of more than five real estate properties and/or a variety of assets such as bank accounts, movables (e.g. watch or car) or shareholdings in the UAE, the Service Centre provides for the “Full Will”. Besides these instructions on the distribution on the various assets, the Testator can nominate guardians for his/her children by including guardianship provisions (see restrictions above in Guardianship Will) in this all-embracing, covering all sorts of assets, will.
4. The “Business Owners Will” can encompass up to five separate shareholdings in any UAE free zone company and/or UAE onshore company established in accordance with UAE Federal Law.
5. The “Financial Assets Will” can encompass up to ten separate accounts or a share in up to ten separate accounts that are legally held with a bank or brokerage firm, holding only movable assets comprising monies and/or publicly traded shares, stock or other securities and/or securities issued by any government authority. Each bank account must be registered with a financial institution that is regulated as a bank by the Central Bank of the UAE and, in the case of brokerage accounts, registered with a financial institution that is regulated as a brokerage firm by the Emirates Securities and Commodities Authority or other competent UAE regulatory authority.
A single Testator can only register a “Single Will”, whereas in case the Testator is married and both, the Testator and wife/husband, wish to register a DIFC Will at the same time, then the “Mirror DIFC Will” option should be selected (as this option grants an overall net reduction in registration fees).
Guidelines and Costs
The DIFC Will Service Centre provides a simple and efficient mechanism for non-Muslims to pass on their UAE assets according to their wishes and appoint guardians for their minor children (habitually residing in the UAE):• For the execution of the will in the case of death, the Testator appoints one or more Executors.
• The Testator must be over the age of 21 years.
• UAE residency is not required (except for guardianship).
• The Full Will can cover assets (e.g. bank accounts or real estate) in the UAE and abroad - however any other type of Will can only cover UAE assets.
Following the death of the Testator, it is the responsibility of the nominated Executor to obtain the Order from the DIFC Courts to allow them to administer the Estate of the deceased.
Such application is made directly to the Will Service Centre. After checking the submitted documents, the Service Centre passes the application and supporting documents to the DIFC Courts and a probate case file is opened. The documents are then reviewed by the court and, if all is in order, the Probate Order and/or an Order appointing guardians are granted.
If the Probate Order relates to assets outside of the DIFC, and for all Guardianship Orders, the DIFC Court Orders will require an ʺexecution stampʺ from the Dubai Courts to be enforceable. The Executor(s) are then able to administer the Estate of the deceased Testator, and/or take guardianship of children (if applicable) in accordance with the instructions from the deceased, formalised in the DIFC Will.
Contrary to UAE Courts proceedings, the entire Probate process with the DIFC Will Service Centre and the DIFC Courts is carried out in English and follows common law.
A legal document by which a person, the Testator, expresses his/her wishes as to how his/her property is to be distributed upon death, and names one or more persons, the Executor, to manage the Estate until its final distribution.
Passing on assets (money, titles, real estate property, shares), debt and obligations upon death of an individual.
A person who makes a will.
A person under the age of majority (≤21 years in UAE).
Guardian of Minor
A trusted adult, who will care for and raise the minors in the case of death of the Testator.
The person named by the Testator to carry out the instructions of the Will and administer the Estate until its final distribution. The person needs to be ≤21 years old. Corporate Executor is also possible.
The property of all kinds that a person leaves at death.
Probate is the court process of proving a will is valid and thereafter administering the estate of the deceased according to the terms of the will.
To-do-List in case of death
- List of emergency contacts (family members, first contacts in the UAE, company contacts)
- Contact details of Executor of will
- Details of immediate guardians of minors in the UAE
- Details of permanent guardians of minors in the UAE or home country
- List of assets in the UAE
Methods which DO NOT work:- Undated share transfer forms: Any authority given to a person to date a share transfer, ceases upon the death of the shareholder, therefore a transfer dated by such a person will be invalid. - Using a power of attorney to affect the transfer: A power of attorney will be revoked upon the death of the issuing shareholder; therefore, it will be invalid.
- Nominee ship or bare trust: With this agreement, the beneficial shares ownership remains an asset of the deceased’s estate. If the nominee purports to transfer the shares to another person, pursuant to a verbal or written instruction or agreement, the nominee risks liability for intermeddling in the deceased’s estate. Such instruction or agreement may amount to an invalid testamentary disposition. - Relying on provisions in the memorandum and articles of association of the company: Memorandum and articles can purport to suggest shares can be transferred to a nominee deal with the shares. Persons involved in transferring the deceased’s shares risk potential exposure for intermeddling.
Legalisation of Documents
The UAE and many countries of the Middle East are not part of the 1961 Hague Convention abolishing the requirement of legalization for foreign public documents: they do not recognize the apostille. This means that notarized foreign documents must be legalized by the respective foreign authentications Office and subsequently authenticated by the UAE consulate in that country. Afterwards that authentication is confirmed by the Foreign Ministry in the UAE. This procedure will take approximately two weeks. It can be a very expensive process since the UAE does not only charge by document but also by content. Although the legalization of a university degree e.g. might cost USD 25, the charge for the legalization of the corporate documents of an offshore company ranges around USD 1,000 by the UAE consulate and additional USD 600 by the Foreign Ministry in the UAE. Therefore, it is important to verify beforehand what kind of legalization is needed and will be accepted.
Funeral and Repatriation Services
There are special companies in the UAE which handle everything concerning funerals, cremation and/or repatriation.