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Expat Wills

Legal Process

BRITISH LEGAL SYSTEM AND THE UAE LEGAL SYSYTEM

THE UAE LAW AND YOUR UK WILL

The United Arab Emirates is essentially a civil law jurisdiction heavily influenced by French, Roman, Egyptian and Islamic (Sharia) law. Principles, such as adopting previous court judgments as legal precedents, are generally not recognized (although judgments delivered by higher courts are usually applied by lower courts).

For UK citizens, your UK Will can be used to distribute your assets in the UK and your assets in the UAE. Although as a general rule the law where a property is situated is used to distribute real estate (immovable property).

If your real estate is situated in an ex-colonial country, as a general rule your UK Will should be accepted by the courts of that country to distribute your real estate. However, if you have real estate in a country that does not accept your UK Will such as France you must make a separate Will complying with that countries law, attestation and notarisation process.

In the UAE matters of inheritance are governed principally by two federal laws, Federal Law No. 5 of 1985 regarding the law of Civil Transactions in the UAE (the Civil Code) and Federal Law No. 28 of 2005 regarding the UAE Personal Affairs Law (the Personal Affairs LaW).

As the personal affairs law states the law of a foreigners home country will apply to matters of inheritance, your UK will is accepted by the UAE courts. However it is not clear if your wishes within your UK Will can apply to your real estate situated in the UAE or your home country law only applies to movable property (cash, shares, savings, liquid assets etc).

Whereas the Civil Code states in one part that the law of the home country will apply to matters of inheritance, it later states that where a Will made by a foreigner deals with the disposal of real estate in the UAE, UAE law will apply.

Cases in the UAE are initially heard by the Court of First Instance and can be appealed at the Court of Appeal and then finally at the Court of Cassation. Court proceedings in the UAE can be lengthy and expensive. All issues of inheritance for foreigners will first be heard at the Court of First Instance.

As professional Will Writers we can take instructions for your Will here in Dubai and have your Will written in accordance with the rules/laws of your domicile country.

It is therefore imperative that if you live in Dubai and own assets and property in Dubai or any other country that you have a valid Will that can be taken to the UAE courts by your heirs should you die whilst still a resident with assets in the UAE. Expat Wills can write your will to cover your world-wide movable assets. As immovable assets (real estate) generally require a Will in accordance with the laws in the country where the assets are situated

WHAT MIGHT AFFECT MY EXISTING UK WILL

It should be noted that marriage nullifies all previous Wills, If you have re-married your Will is now null and void and any estate will fall under the laws of Intestacy (dying without a Will).

POWER OF ATTORNEY

A person can appoint someone to act as their Attorney and sign documents on their behalf - the common Power of Attorney's are: General Power of Attorney - person appointed can sign any document on the Appointor's behalf. Specific Power of Attorney - limits the person appointed to sign only in relation to the item specified, i.e. my property 25 Anywhere Street

The one thing these Powers have in common is if the person who gave them the Power becomes mentally incapable they are automatically revoked. It then means applying to the Court Of Protection to be appointed Receiver but the Court oversees everything, says where any money has to be invested, requires accounts for every penny spent (literally) being submitted yearly and on top of that charges a healthy fee (Solicitors usually become involved as well - need we say more).

The Alternative:

Lasting Powers of Attorney

This Power of Attorney is different in that if the person giving the power becomes mentally incapable it is not revoked. All that is required in that case is to register it but the Attorney carries on as before without the involvement of the Court of Protection.

So our advice is anyone who has an elderly relative with assets they should get them to do a Lasting Power of Attorney (whilst they are able mentally) ~ hopefully it will never be required but believe us, if it is, you will save a lot of expense, time and hassle than having to go to the Court of Protection.

Parental Responsibility

Guardians For Your Children

A guardian is responsible for the welfare and safe upbringing of a minor. (under 18 years of age) at the time of your death. Parents who are making Mirror Wills should name a guardian in both their Wills in the event that they should die together, but an appointment (or the responsibilities) of a guardian; (in most cases) will not take effect until the death of the surviving parent. Guardians must be 18 or over.

Civil Partnership

TRUSTS AND HOW THEY OPERATE

Trusts are administered by between one and four trustees who are initially selected by the person creating the trust. Trustees can be other relatives, friends or professionals like a solicitor. Ideally trustees should be contemporaries of the son or daughter but finding suitable trustees is often a real difficulty. You are looking for a mix of personal interest in the welfare of your son or daughter and financial expertise. Professional trustees can be paid for their time but parents are often wary about how much these fees will deplete the trust fund. The trust can meet other trustees' expenses.

Payments are most commonly made by the trustees to provide things the state does not. It is usual for payments to be made as required and not regularly and as such are treated as capital rather than income for benefit purposes.

On the eventual death of the primary intended beneficiary of the trust any remaining assets can be distributed to other named beneficiaries or perhaps donated to a charitable organisation according to the terms of the will or trust deed.

WHAT IS PROBATE?

When a person dies somebody has to deal with their estate (money property and possessions left) by collecting in all the money, paying any debts and distributing what is left to those people entitled to it. Probate is the court's authority; given to a person or persons to administer a deceased person's estate and the document issued by the Probate Service is called a Grant of Representation. This document is usually required by the asset holders as proof to show the correct person or persons have the Probate Service's authority to administer a deceased person's estate.

Legal Definitions

ISLAMIC (SHARIA) LAW

The United Arab Emirates is essentially a civil law jurisdiction heavily influenced by French, Roman, Egyptian and Islamic (Sharia) law. Common law principles, such as adopting previous court judgments as legal precedents, are generally not recognized (although judgments delivered by higher courts are usually applied by lower courts).

Because of the general confusion surrounding inheritance issues for foreigners in Dubai, the courts will have the discretion as to whether the laws of the country to which the deceased belonged are adopted or if Islamic Sharia law is applied.

In either case it is absolutely essential that a valid Will is available to the courts because should the courts decide not to use the law of the country to which the deceased belonged but instead apply UAE law then one third of the estate must be liquidated and distributed in accordance with the deceased Will. However the remaining two thirds is then distributed to the heirs as per the fixed shares prescribed by Islamic Sharia law.

The fixed shares in accordance with Sharia law are as follows.

Asaba

Asaba are relatives who only receive their shares once the heirs in the abovementioned Dhawu'l-Fara'id group have received their entitlement. Women do not enter into this calculation of the line of relationship and there are no fixed shares in this category either, i.e. sons are the first to inherit the residue of the estate and daughters are entitled to half of the shares that are awarded to the sons

Dhaw-ul Arham

The members of this category include relatives who are related through the female heirs; they include, for example, a daughter's son or daughter, a son of the daughter of a son and maternal grandfather.