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4 Key Issues that Explain the Importance of Will in UAE

The expats make a vast majority of the population in the UAE. They come to the UAE to work, earn a living and build their careers and eventually end up staying in the country for many years. In parallel, they continue to build families and assets around them.

As the UAE is a Muslim country, the laws of the country are governed by the principles of the Shariah. The inheritance laws distinguish between Muslims and Non-Muslims in respect of the distribution of their assets and appointment of guardians for their minor children.

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Shariah based inheritance law applies to the estate of everyone either residing in or having assets in the UAE. The law, however, respects the religious faith of everyone and provides an option to the Non-Muslims to opt out the application of the Shariah Law through a duly registered Will in the UAE. It is thus critical that Non-Muslims understand the importance of a Will in the UAE.

This article explains four (4) key issues comparing situations where a Non-Muslim individual passes away with or without a Will to highlight the importance of Wills in the UAE:

1. Distribution of Estate of Deceased

Here are the key differences in the distribution of estate of a Non-Muslim with and without a Will:

 Without a Will  With a Will
Beneficiaries are determined by the Shariah Law. Beneficiaries are determined by the Will.
Wife gets 1/8 of the estate of husband. Wife can get 100% of the estate.
Husband gets 1/4 of the estate of wife. Husband can get 100% of the estate.
Only the legal heirs get their shares in the estate of a deceased as per the Shariah Law. Anyone can be appointed as a beneficiary.
Parents get 1/6 (each) of the estate of the deceased. It is optional to involve parents as the primary beneficiaries. They can be selected by the testators are alternate beneficiaries.
Children get their share in estate. Boys are entitled to a double share compared to a girl. Children can be appointed as alternate beneficiaries. The surviving parent can be given 100% of the estate to allow full control over the management of estate.
Siblings may automatically be entitled to a share in the estate in some situations. Siblings can be excluded from the distribution altogether. They can be included as alternate beneficiaries, if required.

Accordingly, you can choose any distribution mechanism in your Will to reflect your wishes. In the absence of a duly registered Will, the distribution mechanism prescribed by the Shariah Law will apply to your estate.

2. Guardianship of Minor Children

The issue of appointment of guardians of minor children is settled as follows:

 Without a Will  With a Will
Legal guardian is determined by the court. Legal guardian is determined by the Will.
Husband’s father could be appointed as legal guardian. Wife can be appointed as legal guardian.
Wife may only keep custody of minor children with legal guardianship potentially granted to the father of the deceased. Wife can be appointed as the legal guardian as well as the custodian of the minor children helping her avoid any potential disputes related to the upbringing of minor children.
In the absence of immediate family members as eligible guardians, the court decides the issue. You can cover all potential scenarios by appointing multiple layers of alternate guardians to cover situations where both parents pass away together.
Where the permanent guardians are outside the UAE, the authorities may need to intervene. If the permanent guardians appointed in the Will reside outside the UAE, temporary guardians can be appointed to ensure that the children are taken care of by these trusted individuals until the permanent guardians arrive in the UAE to take custody of the minor children.

Related: Nominating Guardians in UAE Wills

3. Probate Process

It is mandatory for everyone to complete the probate process regardless of whether the deceased does or does not leave a Will behind. However, the process of probate is made easier with a UAE registered Will as follows:

 Without a Will  With a Will
The legal heirs are determined by the UAE court with necessary evidence produced by the person requesting the probate order. The court requires two (2) witnesses (who knew the deceased and his/her family closely) to give statements in the court identifying the actual legal heirs left by the deceased as per the Shariah Law. The court records statements from these individuals with cross-questioning to ensure that the statements given by the individuals are reliable. The beneficiary is determined by the Will.
There is no requirement to call any individuals to provide any statements.
If the legal heirs are resident outside the UAE, they are required to either travel to the UAE to represent themselves before the court or appoint someone else through a power of attorney to represent them. Only the executor appointed in the Will is required to present himself/herself before the court. The beneficiary is not required to be present either in person or through a power of attorney.
The cost involved in the process may be significant in both cases where the legal heirs either decide to travel to the UAE or appoint someone through a power of attorney. The legalization of the powers of attorney can also be expensive. This is in addition to the court fee payable for the probate order. The only cost payable is the court fee for the issuance of the probate order.

4. Timeline for Probate

The timing of the probate process also varies in both situations as follows:

 Without a Will  With a Will
As the process involves establishing the legal heirs and the requirement that the legal heirs either present themselves in person or through a power of attorney, the timing for the issuance of a probate order can vary depending upon how quickly these steps can be completed. The issuance of probate order is usually quick in cases where the deceased leaves a Will in the UAE. The executor is only required to file the application for the grant of probate together with copies of the death certificate and the Will to obtain the probate order.

Here are the options for Non-Muslims to register their Wills in the UAE:

Wills in Dubai – These Wills can either be registered with the DIFC Courts Wills Service or Notary Public.

DIFC Wills – These Wills are registered with the DIFC Courts Wills Service.

Wills in Abu Dhabi – These Wills are registered with the Wills Registry for Non-Muslims established by the Abu Dhabi Judicial Department.

All of the above options cover the assets throughout the UAE. DIFC Wills, however, provide an option to the non-Muslims to include their assets outside the UAE depending upon the enforceability of the DIFC Wills in the relevant jurisdiction.

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