A vast majority of expatriates living in the UAE is unaware that their families may run into a real difficulty upon the death of a family member in the absence of a Will. In this article, we will give an overview of what happens upon the death of a person if there is no Will in place, and two institutions through which a non-Muslim expat residing in Dubai can register a Will. For the avoidance of any misunderstanding, we wish to reiterate that this article contains information that pertains only to individuals who are not Muslim and have never been a Muslim.
This article, however, is not intended to provide legal advice or opinion, and it is for informational purposes only. If you would like to discuss how this information relates to your particular matter, we encourage you to contact a lawyer through Legalintro.
Which law will apply upon my death if I do not have a Will?
If a non-Muslim expat passes away without registering a Will, it is likely that the Courts will adhere to Shariah Law in respect of distribution of assets and appointment of a guardian under the guidances of Federal Law No. 28 of 2005 regarding the UAE Personal Status Law (the “Personal Status Law”) and Federal Law No. 5 of 1985 concerning the issuance of Civil Transactions Law of the UAE (the “Civil Code”).
What are my options to avoid the application of Sharia Law?
If a non-Muslim individual does not wish Sharia Law to be applied, he or she may have a Will drafted by a specialized lawyer, translated into Arabic, attested by a Notary Public and authenticated by the consulate and other authorities required under the Personal Status Law. Alternatively, eligible individuals have the option to register different types of Wills through the DIFC Wills and Probate Registry (“Registry”) depending on the assets and guardianship arrangements that they wish to cover in the Will in accordance with the principles of the Common Law.
What is the risk that registration of a Will through Notary Publics bears?
Although Personal Status Law allows non-Muslim expatriates to make a Will under the law of their home country to govern succession of their UAE estates, the Civil Code, on the other hand, clearly states that Sharia Law shall apply to Wills made by aliens disposing of their real property located in the UAE. This discrepancy poses a risk and leads to the uncertainty as to whether a non-Muslim expat’s Will might be subject to Sharia Law or the law of his/her country of origin.
Which type of Will should I register?
Considering the risks that the registration through Notary Public bear, the DIFC Wills could be a better option as its rules create legal certainty for the distribution of an individual’s assets and the appointment of a guardian for the children. Such certainty does not only allow individuals to have testamentary freedom to dispose of their assets as they wish, it also ensures that individuals’ estate will be distributed according to their wish. We, however, strongly advise you to speak with a lawyer through our platform and seek legal advice on which type of Will registration suits you best. The right choice can only be made after a specialized lawyer evaluates your personal circumstances and the possibilities of how these are likely to change in the near future.
Who will have the guardianship of my children if there is no Will?
The Court will intervene and determine the guardianship of children below 21 years of age, where there is no Will in place. Under Sharia Law, the guardianship of the children is principally awarded to the father upon the death of the mother on the condition that there is a suitable woman (as determined by the Court) in the family home to look after the children. This said, UAE Courts have a tendency to appoint the closest male relative of the father and not the mother as the guardian of the children upon the father’s death. The mother is rarely appointed as the guardian and this is always subject to the mother not remarrying. In a nutshell, the absence of a registered Will may cause the children to be separated from each other and sent to different families. Use Legalintro to speak to a specialized Will and Probate Lawyer who will be able to draft a Will for the guardianship of your children according to your wish.
What about the distribution of my assets?
Non-Muslim expats have the option to choose the law of their home country for distribution of their assets in the UAE. However, in the absence of a formal Will governed by a law other than UAE law, Sharia Law will apply to the distribution of all movable as well as immoveable assets in the UAE. Since Sharia Law has a its own system of distribution, it may have some unexpected ramifications which differ from your intentions, such as a wife being qualified for only one-eighth of her deceased husband’s estate. Another rule under Sharia Law is that the son receives twice as much as a daughter. It should also be noted that Sharia law requires your personal assets including joint bank accounts to be frozen until all the liabilities of the deceased have been discharged. This includes all loans, credit cards and other liabilities borne by the deceased.
How can I register my Will at the DIFC Will and Probate Registry?
Individuals who are not Muslim and have never been a Muslim, and who are over 21 years of age can register Wills at the Registry either in person or via the Virtual Registry. The Will must only cover assets situated in the Emirate of Dubai and/or Ras Al Khaimah. It is worth noting that since the Registry is a public government body, it does not provide any legal advice or assist individuals in preparing a Will. In other words, the DIFC Registry is not in the position to draft a Will on your behalf.
Who can help me draft my Will?
Your Will is an extremely important document and you are strongly advised to consider taking legal advice in its preparation. The Registry and the applicable laws set down certain requirements that must be met for a Will to be registrable and if these are not met, your Will would be unenforceable. Individuals wishing to register a Will should seek legal advice and assistance from a specialized lawyer who will ask the right questions, draft a Will to suit your specific family circumstances and ensure that the Will is in compliance with the requirements applicable.