Top 10 tips: Arranging a will in Dubai
Feeling overwhelmed by paperwork? Information overload? Tania Jarjur, partner at Tacitus Advisors FZE, shares her legal insights to make sure you have everything in order when it comes to wills. Stay calm and read on…
Expats in Dubai are rejoicing, but perhaps not for the reasons you would think. DIFC finally welcomed its Wills and Probate Registry in May 2015, making Dubai the first Emirate to offer a place where non-Muslims can tackle issues of inheritance in the unfortunate event of a death. This means when tragedy hits, you’ll be more than equipped to handle the distribution of your Dubai-based assets in a clear and streamlined way.
While registering a will with the DIFC seems expensive, the peace of mind knowing your possessions will be distributed the way you choose is invaluable. You may ask, why not include your Dubai assets in your foreign will? Because as soon as an expatriate passes away in the UAE, all their assets (including bank accounts) are frozen until the Shari’a courts finalise distribution. This process can be taxing, time consuming and can sometimes cause tricky issues with visas/sponsorships for your children and spouse.
So now you decide you need a DIFC will, and perhaps assume you can save a little money on lawyer fees if you draft one yourself. We advise against drafting your own will mainly because wills are particularly complicated legal documents; even DIFC wills have certain specific requirements and restrictions that you may not be aware of.
To save you the hassle of sifting through dozens of websites and advice, here are our top 10 tips to keep in mind when registering a DIFC will or guardianship for your children:
List your assets
This may be common sense, but you’d be surprised what assets people forget to list in their will. Assets include your bank accounts, real estate property, company shares, valuables (such as jewellery or carpets) or intellectual property rights.
Allow options for beneficiaries
When people set out to draft a will, they tend to imagine themselves as the first to go, leaving all their loved ones alive and well. Unfortunately, we live in an uncertain world. You need to think through multiple succession options in the event that your initial choice for a beneficiary pre-deceases you. For example, you may choose your spouse and/or your children as your beneficiary for all your Dubai-based assets. But what happens if your wife and your children pre-decease you, or worse you were all taken together? These are extremely tough questions yet important to think about to make sure your will stands the test of time.
Many foreign countries give their citizens the option of selecting a trust as a beneficiary in their will. Trusts keep beneficiaries private and enable the beneficiaries of the trust to change without having to amend the will. While the DIFC does allow trusts to be listed as beneficiaries, they require certain information to be disclosed. Depending on your reasons for creating a trust, you may need to choose alternative beneficiaries.
Every will needs an appointed trustee (also known as an executor). The trustee is entrusted with ensuring the assets are distributed in accordance with your wishes. It is important to choose someone you can truly count on, or who you know can be fair and objective.
Choose successor trustee
In the same way it is important to think of multiple succession lines of beneficiaries, it is important to list a successor trustee in the event the appointed trustee either pre-deceases you, or is unable or unwilling to act as the trustee.
Every DIFC will needs two witnesses. One witness will always be an employee of the DIFC Wills and Probate Registry. You have to bring a second witness to the DIFC when registering your will. A witness cannot be a beneficiary to the will.
Children under the age of 21 can be listed as beneficiaries to your will. However, the trustee will hold onto the assets until the children are 21 years old, at which point the trustee will transfer the assets. Another reason your choice of a trustee is very important!
What if your wife is pregnant with your first child when you register the will, and you intend to have at least one more child? While the DIFC does allow wills to list future children as beneficiaries, there are specific DIFC requirements of how to label the future classes of beneficiaries.
The DIFC introduced the concept of temporary and permanent guardians for your children. In appointing guardians, however, you must adhere to the UAE public laws that forbid certain male adults from taking care of minor females.
Keep it updated
Once the will is drafted and filed, it is important to re-visit the will every few years, as laws and requirements can change. It is also important to re-visit your will any time you encounter a significant life change or a milestone (the birth of a child, a death in the family that impacts you financially, marriage, divorce or retirement).
We understand all this can be overwhelming and confusing, but at least you can rest assured you have the DIFC on your side when the time comes. Don’t forget to bring your lawyer.
What if you…
Already have a foreign will in Place?
If you already have a foreign will, it is still prudent to register a separate DIFC will, otherwise the Shari’a court will continue to have jurisdiction over distributing your Dubai assets. This process can take months, if not more than a year, during which all your assets, including your bank accounts, are frozen until the Shari’a court makes its final decision. Both your Dubai-based lawyer and your foreign lawyer should work together to ensure that both wills are valid, and that one does not contain language that contradicts, cancels or voids the other.
Were assured your will is Shari’a Compliant?
The labeling of wills for all the assets of non-Muslims as “Shari’a compliant” is a misrepresentation. Unbeknownst to many, Shari’a compliant wills can only deal with one-third of your estate without the consent of the beneficiaries who would have been the heirs under Shari’a. Without such consent, it is likely that the Shari’a court will only allow that one third to be designated to non-family heirs. Needless to say, despite having such a will in place, it is still advisable to register a separate DIFC will.
Written by Tania Jarjur, thetacitusgroup.com