A will, also referred to as a person’s final testament, is an extremely important legal document that officially records the wishes of the person making it as to how and amongst whom the property and all other assets standing in the person’s name are to be distributed after the death of that person.
Why is a will important for NRIs in UAE?
Unlike India, the United Arab Emirates is a Muslim country governed by Sharia (Islamic) law. If an NRI dies without a will in the UAE, and he is a Muslim, then the courts in UAE will apply the Sharia law to distribute all his assets – movable as well as immovable - in the UAE. If, however, an NRI who is not a Muslim dies in the UAE without a will, then his legal heirs are given the option to opt out of the application of Sharia law to distribute his assets in the UAE. By opting out, his assets may be distributed as per the personal and inheritance laws of the religion of the deceased person or those of India.
The laws of inheritance are applied in the UAE only when the deceased property holder has not created his will. As per Article 313 of the UAE Personal Status Law of 2005, inheritance refers to the act of distribution of the deceased person’s property among the rightful owners. As already mentioned, in case the deceased is a Muslim, the inheritance will be distributed as per Sharia laws. In case the deceased NRI is a non-Muslim, Articles 11 and 12 of Federal Decree-Law No. 41 of 2022 are applicable.
1. Distribution of inheritance of a Muslim as per Sharia Law
Sharia law is outlined in the Holy Quran and follows that system for the distribution of an inheritance. Legal heirs may include spouses, children, grandchildren, siblings and parents. The inheritance is to be distributed after the costs of the funeral and all the debts of the deceased person have been paid. Non-Muslims are legally not allowed to inherit the property of a deceased Muslim person.
Having a will in place allows the assets of the deceased person to be distributed only among those he wanted to enjoy the fruits of his hard work.
2. Distribution of inheritance of a non-Muslim opting out of Sharia Law
In case a non-Muslim NRI dies without a will, the following steps are followed to distribute the inheritance. Please note that each step is applicable only if the conditions detailed in the previous step are not applicable in a particular situation:
- The property is to be divided in equal measures among the spouse and children of the deceased intestate person.
- If there are no children, then the property is divided equally among the parents and spouse of the deceased person, with each getting 50 per cent of the property.
- In case only one parent of the deceased NRI is alive, then the spouse will inherit 50% of the property and the remaining property, 50% in this case, will be further divided into two halves that are equal. One part, that is, 25% of the total inheritance, will be awarded to the living parent, and the other 25% of the total inheritance will be distributed among the brothers of the deceased person.
- In such cases where the deceased person has no spouse, children or brothers, his parents will be awarded the entire property. Conversely, if no parent is alive and brothers exist, the entire property will be distributed among the brothers.
These steps are applicable only when a non-Muslim person dies without leaving behind a will. In such cases, the children of the deceased non-Muslim NRI may also request for the distribution of the property as per Indian succession laws.
3. Guardianship of children
In case a person dies without leaving a will, UAE laws state that the courts will determine the guardianship of children below the age of 21 years. The mother of the children is not automatically considered to be the guardian of minor children as per UAE laws. Leaving behind a duly registered will ensures that the guardianship of your minor children is granted to your wife.
4. Access to bank accounts
All bank accounts of a deceased person, whether in single holding or held jointly with anyone else, are automatically frozen as soon as the news of the death of an individual is received by the banks as per Article 379 of the UAE Civil Code. Having a will allows your spouse to be able to access and control your bank account and the funds after your will has undergone the process of probate.
A point to be noted is that a will helps expedite the process of distribution of the assets of the deceased smoothly in the UAE as the law mandates the cancellation of the residence visas of the family upon the death of the husband. In such cases, the family is compulsorily required to leave the UAE within 30 days. Not leaving a will behind will make it very difficult for the legal heirs to complete all the issues relating to inheritance effectively and in a timely manner.
What are the different types of wills based on what you own in UAE, and steps to make and register the will
There are 2 types of wills that may be created by non-Muslims who reside in UAE and own assets there:
Notary Public Will: These are wills that are written in a bilingual format – in English as well as Arabic. Such wills need to be registered with a notary public in the same Emirate where the person preparing the will resides or has the assets. So a person who resides in Dubai and has assets in Dubai compulsorily needs to get the will registered with a notary public in Dubai.
DIFC Will: In the UAE, residents over 21, regardless of their religion, can register their wills with the DIFC Courts Wills Service (DIFC CWS). These wills follow common law principles and are prepared and registered as per the DIFC WPR Rules.
You benefit by registering your will with DIFC WPR mainly for the following points:
Unlike in a will registered with a notary public, you may distribute all your property – movable as well as immovable through a DIFC WPR registered will.
The DIFC WPR Rules address all possible situations you may come across with respect to drafting your will or its probate in the future. This is, thus, a more comprehensive system covering most eventualities and situations.
If your will is registered with the DIFC Courts Will Service, a probate order is issued much quicker.
Apart from these types of wills, there are two other sub-types of wills as described below:
Single Will: A single will is a will for one person who is either not married, or even if married, whose spouse does not have any assets under his or her name. A single will is suitable for a married couple only in those cases where the couple does not have either a joint bank account or any property owned in a joint name. A single will is otherwise comprehensive as it deals with all situations such as the distribution of property, appointment of a guardian for minor children, appointment of an executor for the administration of one’s property and for dealing with gifts in wills.
Mirror Wills: Mirror wills cater to married couples with joint bank accounts and jointly owned properties. As the name suggests, mirror wills are for those couples where both spouses have the same or similar wishes in the distribution of their property. Mirror wills allow couples to appoint guardians for their children and leave the entire property they individually hold to any particular person as they wish.
Wills in the UAE, if drafted only in English, need to be translated to Arabic also. NRIs have the option to get their will attested by the Indian Consulate upon providing proof of ownership of the assets mentioned in the will. Such submission at the Indian Consulate is to be done personally by the person whose will it is or by a person authorized by a specific Power of Attorney mentioning that the holder is representing the applicant for his or her will.
How much is your will likely to cost?
The cost you are likely to incur for preparing your will in the UAE depends on the type of will and the value of the assets being distributed. Following is only an estimation of the official fees and charges:
The official fee for registration of a single will by Dubai courts is AED 2,020.
In the case of a mirror will prepared by both husband and wife, the Dubai court fees will be doubled and the fees will be around AED 4,040.
DIFC Courts will charge an official fee in the range of AED 5,000 and AED 10,000 for single wills depending on the type of assets covered by the will.
In the case of a mirror will in the DIFC Courts, the charges are between AED 7,500 and AED 15,000, once again depending on the type of assets you wish to distribute through your will.
Abu Dhabi Civil Courts also allow you to register will since 2021. The fee charged for registration of your will at the ADJD Civil Wills Office is AED 950.
You may choose to register your will online yourself or to get it drafted by DIFC-approved Wills draftsmen or by a lawyer or law firm of your choice. Charges for such drafting vary accordingly.
What if you have a will in India and UAE?
NRIs may have a separate will to distribute their property and other assets in India. In such cases when they are making a will in UAE, they should specifically mention that this will is being prepared to cover the distribution of their property and assets in the UAE only.
Conclusion
NRIs leave their homeland and go to the UAE to work hard to create assets and buy properties with the fruits of this hard work. Their objective is to be able to live a better life and to provide their spouses, children and people back home with a better quality of life. The time after the death of any person is stressful for their entire families, and at such trying times, they should not be beset with worries about how to be able to access and enjoy the fruits of the labour of their deceased family member. Thus, all NRIs who reside in the UAE and Dubai must create and register their wills to avoid inconveniencing their families.
