Expats need to make a will to ensure spouses’ access to assets and guardianship of infant children
Many expatriates living in the United Arab Emirates are unaware that in the absence of a will, recognised by the UAE legal system, the process of transferring their assets after death can be time consuming, costly and fraught with legal complexity. Serious complications can occur when infant children are left behind and no guardianship arrangement recognised in this country has been put in place. In default, Sharia Inheritance rules would apply to property and it would be at the discretion of a local judge to choose the child’s guardian.
If an expatriate dies without a will, Federal Law No. 5 of 1985, concerning the issuance of Civil Transactions Law of the UAE (the Civil Code), and Federal Law No. 28 of 2005 regarding the UAE Personal Status Law (the Personal Status Law) guide the local courts on the distribution of assets, only where it is not contrary to public policy. In some cases, it is possible that the courts will apply principles of Shariah law to the estate of a non-Muslim and therefore mandatory rules of division between certain members of the deceased’s family will apply.
As a practical matter, access to the assets of the deceased individual is restricted. Assets cannot be transferred or be dealt with in any manner without direction from the local court. In some circumstances, this can give rise to delays and financial complications at a critical time.
Many expatriates fail to put measures in place to protect their families and their assets. Even where investments are offshore in foreign jurisdictions, individuals fail to consider what would happen to infant children, UAE bank accounts, their freehold properties or shares in this country?
Can a surviving spouse access the joint bank account?
A surviving spouse will not have immediate access to money in bank accounts in the UAE, or even bank accounts held jointly in the names of both spouses. In the absence of a registered will, these accounts will remain frozen until instructions are received from a UAE court and all the deceased’s debts in the UAE (even including parking fines) are paid. The assets will in due course, be distributed by the courts in accordance with Sharia Law and this could potentially take weeks, or even months.
Who will have guardianship of infant children?
If a father of an infant resident in the UAE dies, under Sharia law the closest male relative on the father’s side of the family is usually appointed as guardian of any infant children. The mother of the children would retain custody, subject to conditions such as her not remarrying. If a wife were to die in the UAE, then the husband would remain the guardian and custodian of any minor children. This would be subject to him having a suitable woman living within his home to care for the child (such as a female relative).
In the absence of a registered will or specific instructions appointing interim guardians for minor children, the UAE local authorities would have to intervene and take care of the minors, until such time as the courts approval of a suitable guardian.
How can assets and family be protected?
In May 2015, the DIFC Wills and Probate Registry introduced a new set avenue for succession and inheritance matters for non-Muslims holding assets in Dubai, backed by protocols concluded with other public authorities in Dubai.
The new rules, broadly follow UK law and practice, create legal certainty for the inheritance of an individual’s assets after death and the appointment of guardians for their children. This not only allows individuals to have testamentary freedom to dispose of their assets as they wish, it also provides peace of mind that an individual’s estate will be distributed according to their wishes. The registry provides a simple and efficient mechanism for non-Muslims to pass on their estates, subject to a formal will registration process which functions as an opt-in mechanism. All probate grants are issued by judges of the DIFC Court.
This is a special advertising feature written by Ruksana Ellahi, Senior Associate at Al Tamimi & Company.
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