Hazards of Not Having a Will

  • 07OCT

Make yourself SECURE in the Middle East

As expatriate families, you are concerned about protecting your wealth wisely during your lifetime. But Nita Maru says it is more important to protect your assets - and your family - by deciding now what to do when faced with death.

Who needs a Will?

For expatriates living in the UAE, there is a very simple reason to make a Will. The Government of Dubai's official website states that 'the UAE Courts will adhere to Sharia law in any situation where there is no will in place'.

The top 5 hazards of not having a Will

1. You are automatically subject to unclear UAE legislation as to inheritance/succession issues for expatriates.
2. You do not have any valid and recognized EVIDENCE OF YOUR INTENTIONS.
3. Courts can intervene and where you have children CAN APPOINT guardians even if the mother is surviving.
4. The distribution of your estate may be contrary to your wishes as Sharia Law involves fixed ratios to be distributed to legal heirs. This means if you die without a will, the local courts will examine your estate and distribute it according to Sharia law. While this may sound fine, its implications may not be so. All personal assets of the deceased, including bank accounts, will be frozen until liabilities have been discharged. A wife who has children will qualify for only 1/8th of the estate.
5. There is no right of survivorship (property passing onto the surviving spouse) where the property is held in joint names.
6. There is no automatic succession or transfer of shares between partners where businesses are concerned.
If you don't have estate planning in place, you simply cannot be sure what will happen after your death: whether your family will be provided for, who will look after your business, and when and how your beneficiaries will actually stand to benefit.

Nita shares some frequently asked questions:

My husband and I jointly own a freehold apartment in Dubai. If one of us dies, will the other or our children automatically inherit it? (MJ, Australian, 31)
Nita: In the UAE, inheritance for Muslim nationals is guided by Sharia laws, while the law of the deceased's home country could be applied for non-Muslim expatriates. However, there are many uncertainties regarding real estate inheritance issues, and expatriate property owners are recommended to make wills to overcome these. Unlike other jurisdictions, the UAE does not practice 'right of survivorship' (property passing on to surviving joint owner upon death of the other), and the local courts will make final decisions.
I own property in the UAE and abroad. What are the consequences if I don't have a will? (NJ, Canada, 46)
Nita: In the absence of a will, you will be classed as 'dying intestate'. The problem can escalate if you own property in more than one country, and your family can be subjected to prolonged legal
battles. In the UAE, the consequences can be far more serious, and your assets may be distributed in a way that is contradictory to your wishes.
If I don't have a will, is it correct to assume that my spouse will be the automatic guardian of my children? (SM, Africa, 35)
Nita: If you do not have a will, and you die before your child reaches the age of majority, the courts can intervene and appoint a guardian on your behalf. In these circumstances, it is very unlikely that their decision will reflect your wishes.
I have heard some horror stories of financial troubles after a sudden death. Is it true that if my husband dies, our joint bank account will get frozen, and what must we do to avoid this? (SS, British, 44)
Nita: In principle, the bank accounts of a deceased will be frozen until all liabilities such as car, property and personal loans, credit cards, and business debts are cleared. Sometimes, an account gets frozen within hours of a fatality but the procedures for reactivating it are lengthy and complex. These can be avoided or expedited by planning your estate.
My husband runs a company and sponsors me and our children. What effect will his death have on our resident visas, staying in the UAE, and managing his company? (PRT, South African, 28)
Nita: It is a grim reality that upon a sponsor's death, the family's visas will be cancelled within 30 days and they will have to leave the country. The future of the company also remains uncertain. We offer various contingency plans for those wishing to stay in the UAE and/or ensure smooth business transition.
My cousin and I are business partners and equal shareholders in a small business in Dubai. Should I worry about the future, if one of us dies? (JJ, Indian, 39)
Nita: In the event of a shareholder's death, local probate laws are applied to a business, but the results may be unpredictable as shares do not pass automatically by survivorship, nor can another family member take over in lieu. However, we can secure arrangements to avoid lengthy local probate and guarantee business continuity.
I am still young. When is the ideal age to get my will made? (TH, Singapore, 27)
Nita: For many people, making a will is one of those things that you intend doing someday, but never get around to. Thinking about your own death is not a pleasant activity, but postponing the writing of a will results in dying intestate, leaving you limited or no say in the future of your wealth, assets, business or even children. Bearing this in mind, the obvious answer is that the best time to make a will is 'now'. Although the process may not be enticing, it will give you the peace of mind that your affairs will be dealt with as you intend.
The author is Nita Maru, British qualified solicitor and Managing Partner of TWS Legal Consultants.
Office Suite 3307-3308 Oaks Liwa Heights
Cluster W
Jumeirah Lakes Towers, Dubai UAE
Tel No.: +971 4 448 4284
Email: [email protected]
Web: www.twslegal.ae
Licensed by the Government of Dubai Legal Affairs Department Licensed and approved by Dubai Ruler's Court Registered with the Dubai International Financial Centre Courts' Register of Legal Practitioners
Member of STEP (Society of Trusts and Estate Practitioners)
On the British Embassy's list of recommended law firms
Registered Wills Draftsmen at the DIFC Wills and Probate Registry
Part of the DIFC Wills and Probate Registry working panel
7th October 2018