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Here is what you need to know about Sharia Compliant Wills in the UAE
If you are a Muslim living in or having assets in the UAE, you need to consider the below-mentioned documents as part of your estate planning exercise.
Sharia Compliant Will
A Sharia Compliant Will is the most critical document forming part of the estate planning in the UAE. We have outlined below the most important issues that you need to understand while deciding to go ahead with writing your Sharia Compliant Will in the UAE:
1. Distribution of your assets
As a Muslim, the Sharia Law would apply to the distribution of your assets after your death. However, you may attempt to achieve the following objectives through a Sharia Compliant Will:
(a) Give your entire assets to your spouse. This will be subject to you obtaining letters of consent from your legal heirs confirming your wishes. Your legal heirs will need to confirm this consent your death.
(b) Give up to 1/3 of your assets to someone who is not your legal heir (such as charity or distant relatives).
2. Guardianship of your minor children
If you have any children below the age of 21 years, you should note that your wife will not be the automatic guardian of your children upon your death. She will only keep custody of your minor children as per the UAE law. The legal guardianship of your children will be determined by the UAE courts keeping in view the circumstances at the time and it may be granted to a male in your side of the family. The legal guardian appointed by the court will have the authority to exercise legal rights over the minor children and their assets while the children may stay in the custody of your wife. This may not be a desirable situation given the potential practical and legal complications. To avoid this, you should write a Sharia Compliant Will to appoint your wife as the legal guardian of your minor children.
You should also appoint alternate guardian(s) in your Will to cover a situation where you and your spouse both pass away together.
3. Appointment of Executor
Your Sharia Compliant Will should appoint your spouse as the executor of your will to ensure that he/she has full control over the process of obtaining inheritance certificate form the court.
You should also appoint alternate executor(s) in your Will to cover a situation where you and your spouse both pass away together. These alternate executors could be the same individuals who are appointed by you as the alternate guardians.
Gift Deed (Hiba)
If you wish to pass your assets to your spouse during your lifetime, you should consider the following:
1. Unregistered Assets
All of your personal and household items (everything you have at home) are your unregistered assets. These assets will be distributed to all of your legal heirs as they will remain your personal property and form part of your estate upon your death. Your wife will be entitled to 1/8 of these assets only. This can make things difficult for her as these items would be essential part of her and your children’s day-to-day use. She will be under a legal obligation to give away the shares of all other legal heirs (if any) determined under Sharia law. To avoid the situation, you should gift all these personal and household items to your wife through a Gift Deed during your lifetime.
2. Registered Assets
Your registered assets include your apartment, company shares, bank account and vehicle etc. You can also gift your apartment, company shares, vehicle and the cash in bank account to your wife. However, you have to transfer the ownership of the apartment, company shares and the vehicle to your wife in the relevant Government Departments during your lifetime to ensure the validity of this gift. Otherwise, such a gift may not be enforceable.
Power of Attorney
A power of attorney is an important part of estate planning exercise in the UAE. The power of attorney will allow your wife to represent you before third parties including government departments, manage your assets and take other actions that you would want your wife to take in the event you are either outside the country or is unable to take action due to some illness/incapacitated. The power of attorney will however expire upon your death.
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Five (5) things you need to know about Sharia compliant Wills in UAE
If you are a Muslim looking to make a Sharia Compliant Will in the UAE, here are some of the most important issues that you should keep in mind:
1. Distribution of your Assets
Being a Muslim, Sharia law will apply to the distribution of your assets in the UAE. This means that all your legal heirs will be entitled to their shares (as determined by the Sharia law) in your estate after your death. Being an expat, if you are looking to pass on your entire assets to your spouse, you may attempt to achieve this objective by making a Sharia Compliant Will in the UAE. The distribution of your entire assets to your spouse will be subject to you obtaining consent letters from your legal heirs confirming your wishes and the legal heirs confirming their consent after your death.
2. Guardianship of minor children
In the absence of a Will, the legal guardianship of your minor children will be determined by the court keeping in view the circumstances at the time and it may be granted to a male in your side of the family. Your wife will only keep the custody of your minor children. The legal guardian appointed by the court will be responsible for making legal and financial decisions about your minor children. To avoid this, a Sharia Compliant Will should be signed by you to appoint your wife as the legal guardian of your minor children. You should also appoint alternate guardians in case your wife does not survive you.
3. Appointment of Executors
It is important that you appoint your spouse as an executor in your Sharia Compliant Will to ensure that she has the complete control over the probate proceedings after your death. You should appoint at least one or two alternate executors in your Will to ensure that they can act in a situation where you and you wife pass away together.
4. Sharia Compliant Will vs. Gift Deed
A gift deed (hiba) is not the same as Will. The key difference between a Will and a gift deed is that gift deed is a document that is used to transfer assets during the lifetime and a Will is used as a document to transfer assets after the death. You should use the gift deed only if you wish to transfer your assets as a gift during your lifetime. You can indeed transfer 100% of your assets to your spouse or anyone during your lifetime.
5. Sharia Compliant Will vs. Powers of Attorney
A power of attorney is a document where a spouse is appointed as a representative of the other spouse to take action in situations where the spouse granting the power of attorney is not available due to travel commitments, hospitalization or incapacitation etc. This document is particularly important for the UAE expats due to their frequent travelling and requirement that their affairs be managed appropriately in the UAE during those times.A Sharia Compliant Will, on the other hand, is a document that becomes operational upon death and governs the distribution of assets and guardianship after death. A power of attorney expires on death and does not have any provisions regarding the distribution of assets or guardianship.
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