As if expat life were not fraught enough with challenges and complications, families of those who invest in properties here face further complications in the sad event that the property owner passes away without a will.
Nita Maru, a Solicitor and Managing Partner of TWS Legal Consultants, here shares some legal advice regarding the issue.
How different is the UAE inheritance system from that of other countries?
In the UAE, inheritance for Muslim nationals is guided by Sharia law, while the law of the deceased’s home country can be applied for non-Muslim expatriates. Sharia is not a codified law and is capable of adaption, development and further interpretation. Matters of inheritance coming before the Dubai courts are heard by one or more judges.
Juries are not used. Furthermore, unlike in some Western jurisdictions, there is no system of precedent in Dubai Court or the UAE. In addition, there are many uncertainties regarding real estate inheritance issues. Unlike other jurisdictions, the UAE does not practice ‘right of survivorship’ (property passing on to a surviving joint owner upon death of the other, as would be the case in Commonwealth jurisdictions), and the local courts will need to make the final decisions on property ownership.
This is why the introduction of the new DIFC and Wills Probate Registry (DIFC WPR) is a great option for non-Muslim expatriates preparing DIFC wills to ensure their Dubai property passes to their chosen heirs as per their wishes.
What are the most common inheritance concerns of clients who own property here and what are the solutions?
The most common concerns are from expatriates that have bought property here either in their sole name or jointly with their spouse. They may be confused as to which inheritance laws apply to their assets upon their demise, and usually assume that the laws of their home country automatically prevail over local UAE laws.
As a general rule, inheritance issues in such cases are dealt with in accordance with Sharia. Succession under Sharia principally operates by a system of forced heirship or reserved shares.
For non-Muslims they now have the option of registering a will with the DIFC WPR, which will provide certainty in passing their Dubai estate to their chosen heirs or they can transfer unencumbered real estate into an offshore company. The solutions offered depend on each individual case hence legal advice should be sought from the outset.
Why is it important for expats living in the UAE to have a will, and what are the consequences of not having a will in place?
For expats living in the UAE, there is a very simple reason to make a will; generally the UAE Courts will adhere to Sharia Law where there is no will in place. This means that if you die without a will, the local courts will examine your estate and distribute it according to Sharia law.
All personal assets of the deceased, including bank accounts, will be frozen until liabilities have been discharged. A surviving wife who has children qualifies for one eighth of her deceased husband’s estate, and a surviving husband who has children qualifies for one quarter of his deceased wife’s estate.
The remainder of the estate will be distributed among other family members, depending on who survives the deceased at the date of death. Without a will or succession planning in place this distribution will be applied automatically.
Even shared assets will be frozen until the issue of inheritance is determined by the local courts. There is also no automatic transfer of shares where businesses are concerned. Administering an estate in the absence of a will is often lengthy, costly and complex, not to mention the prolonged disputes with heirs.
What is the most common instrument that is used for passing assets upon death and what are its main characteristics?
A will is the most common instrument used for passing on assets to inheritors chosen by the deceased, and it details how you wish your estate to be distributed after your death. Apart from dictating who should inherit your assets, a will can also be used to specify other wishes such as long-term guardians for your children, executors and specific gifts. One can also take recourse in setting up more strategic plans like establishing a trust or more sophisticated offshore solutions depending on their financial or family circumstances.
Recently I have heard about the new DIFC Wills and Probate Registry. How does the formation of the registry help expatriates with assets in Dubai?
The new DIFC Wills and Probate Registry provides a mechanism for non-Muslims with assets in Dubai only to pass on their assets according to their wishes. The rules provide non-Muslims, resident and/or non-resident in Dubai, with the option and right to choose the way in which their assets are distributed; they will have the freedom to distribute their assets as they wish.
As a “common law” jurisdiction, the use of the DIFC WPR procedure provides certainty and offers a speedy administrative process of a deceased non-Muslim’s estate in Dubai. This is further reinforced by the cooperation process agreed between the DIFC Dispute Resolution Authority and the Dubai Land Department which will facilitate the smooth transfer of property during the stage of succession. In turn this will boost confidence, capital investment and economic growth.