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See if your situation is similar to Ahmed

Ahmed is married to Zahra and has two (2) children, aged 6 and 10. They all live in the UAE. Ahmed wants to ensure that, upon his death, Zahra (i) receives all his assets in the UAE; and (ii) become the legal guardian of his children.

What steps should Ahmed take to ensure that Zahra receives all his assets in the UAE and also become the legal guardian of his children?

Guardianship Will

Ahmed needs to correctly understand and act on the following:

1. Guardianship of Children

Ahmed should write a Guardianship Will to appoint Zahra as the legal guardian of his children. If Ahmed fails to do so, his father (Salah) may become the legal guardian of his children after his death. In such a case, Zahra may only keep custody of her children subject to Salah’s legal guardianship. This may not be desirable by Ahmed and Zahra given the potential practical and legal complications. To avoid this, Ahmed must appoint Zahra as the legal guardian of his children after his death through a Guardianship Will in the UAE.

2. Distribution of Ahmed’s Assets

The Sharia law allows Ahmed to give up to 1/3 of his assets to someone outside his legal heirs (such as charity or distant relatives). None of Ahmed’s legal heirs (including Zahra and his children) can be given more share in his assets than what they are entitled to under the Sharia law. For example, Zahra is entitled to 1/8 of Ahmed’s assets after his death. This cannot be changed by Ahmed through a Sharia compliant Will. However, Ahmed can give his entire assets to Zahra through a Gift Deed (Hiba) – see Step 2 – Gift Deed (Hiba).

Gift Deed (Hiba)

Since Ahmed cannot pass his entire assets to Zahra through a Sharia compliant Will, he can do so by the following means:

1. Unregistered Assets

All of Ahmed’s personal and household items (everything he has at home) are his unregistered assets. These assets will be distributed to all legal heirs of Ahmed as they will remain his personal property and form part of his estate upon his death. Zahra will be entitled to 1/8 of these assets only. This can make things difficult for Zahra as these items would be essential part of Zahra and her children’s day-to-day use. Zahra will be under a legal obligation to give away the shares of Salah, Ahmed’s mother and other legal heirs (if any) determined under Sharia law. To avoid the situation, Ahmed must gift all these personal and household items to Zahra through a Gift Deed during his lifetime.

2. Registered Assets

The registered assets of Ahmed include his apartment, company shares, bank account and vehicle. Ahmed can also gift his apartment, company shares, vehicle and the cash in bank account to Zahra. However, Ahmed has to transfer the ownership of the apartment, company shares and the vehicle to Zahra in the relevant Government Departments during his lifetime to ensure the validity of this gift. Otherwise, such a gift may not be enforceable. Gift Deed is thus the only way for Ahmed to ensure that Zahra gets 100% of the relevant asset instead of a 1/8 share only.

Power of Attorney

Given that Ahmed has an apartment, company shares and two (2) vehicles, he may also be well advised to give Zahra the following powers of attorney:

1. General Power of Attorney

Given that Ahmed owns a business and has some other issues where he wants Zahra to represent himself, he should also give Zahra a general power of attorney to ensure that Zahra can manage Ahmed’s business and can take other actions that Ahmed wants Zahra to take in the event Ahmed is either outside the country or is unable to take action due to some illness.

2. Property buy/sell/manage Power of Attorney

Ahmed should sign this power of attorney to ensure that Zahra can manage the apartment or transfer the apartment to herself as a gift. This power of attorney will be crucial in the event Ahmed is either outside the country or is unable to take action due to some illness. If Ahmed has already decided to transfer the apartment to Zahra as a gift, Zahra should give this power of attorney to Ahmed to enable Ahmed to manage the apartment. It should be noted that the powers of attorney expire on the death of the individual signing (principal). The powers of attorney are merely tools to deal with situations arising when the principal is alive and wants the spouse to manage things on his/her behalf.

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Five (5) facts about Sharia compliant Wills in UAE

Ahmed is married to Zahra and has two (2) children, aged 6 and 10. They all live in the UAE. Ahmed has wants to pass all his property to Zahra upon his death. Ahmed is not sure as to who will be the legal guardian of his children after his death. Ahmed needs to keep in mind the following five (5) facts about distribution of his property (estate) after his death:

1. Ahmed can make a Will for 1/3 of his property only

Being a Muslim, Ahmed cannot make a Will in the UAE for more than 1/3 his property. Any such Will can only be made by Ahmed in favour of a charity or someone outside his legal heirs. Ahmed cannot make a Will in favour of Zahra.

2. Ahmed’s legal heirs cannot be given more in a Will

Here is the most crucial part as Ahmed wants to pass all his property to Zahra after his death. As mentioned above, Ahmed cannot make a Will in favour of Zahra. This is because, as a Muslim, Ahmed is not permitted to give anything more to a legal heir than what he/she is entitled to under the Sharia law.

3. Ahmed can give his entire property to Zahra as gift

Ahmed must gift all his property to Zahra through a Gift Deed during his lifetime. Otherwise, everything he will leave behind (including personal effects, household items and real estate) will be distributed amongst all his legal heirs according to the Sharia law. Gift Deed is the only way for Ahmed to ensure that Zahra gets 100% of the relevant property instead of a 1/8 share only after Ahmed’s death.

4. Ahmed must appoint guardians for his children through a Will

Ahmed should still write a Sharia compliant Will to appoint Zahra as the legal guardian of his children. In the absence of this Will, Ahmed’s father (Salah) may become the legal guardian of his children. In such a case, Zahra may only keep the custody of her children subject to Salah’s legal guardianship. This may not be desirable to Ahmed and Zahra given the potential practical and legal complications. To avoid this, Ahmed must appoint Zahra as the legal guardian of his children through a Sharia compliant Will in the UAE.

5. Powers of Attorney

Given that Ahmed runs his own business and has an apartment, he may also be well advised to give Zahra the following powers of attorney: (1) General Power of Attorney(2) Property buy/sell/manage Power of Attorney These powers of attorney will ensure that Zahra will is able to take control of situation where Ahmed is either outside the country or is unable to take action due to some illness.

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