Process & System
BRITISH LEGAL SYSTEM AND THE UAE LEGAL SYSYTEM
YOUR EXPAT LEGAL WILL ABROAD
Expat Will can produce your expat legal wills for most Jurisdictions that expats tend to reside and we can also procude a expat legal will for assets that are in your home country.
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 expat legal 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’ network of lawyers located outside of the emirate of Dubai can write your Wills to protect your worldwide movable assets. As immovable assets (real estate) generally require a Will in accordance with the laws in the country where the assets are situated
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).
- Enduring Power of Attorney (EPA) were replaced by Lasting Power of Attorney (LPA) on 1st October 2007.
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 Grantor’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:
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 lawyers’ 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.
- the right to be responsible for your child
- The law was changed to make it easier for unmarried fathers to get equal parental responsibility: from 1 December 2003, all you now have to do is for both parents to register the birth of your baby together.
- Parental responsibility for your child gives you important legal rights as well as responsibilities. Without it, you don't have any right to be involved in decisions such as where they live, their education, religion or medical treatment. With parental responsibility, you are treated in law as the child's parent, and you take equal responsibility for bringing them up.
- Unlike mothers and married fathers, if you are not married to your baby's mother you do not automatically have parental responsibility for them.
- Before this change, you could only gain parental responsibility by later marrying the child's mother, signing an official agreement with the mother or getting a court order. You can still get responsibility in these ways - you might want to think about this if you have other children.
A guardian is responsible for the welfare and safe upbringing of a minor. (under 18 years of age in the UK, 21 years of age in the UAE) 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 above in the UK / 21 or above in the UAE.
- The Civil Partnership Act 2004 came into force on 5 December 2005. This enabled same-sex couples to obtain legal recognition of their relationship. Couples who form a civil partnership will have a new legal status, that of civil partner.
- Civil partners will have equal treatment in a wide range of legal matters with married couples, including:
- Tax, including inheritance tax
- Employment Benefits
- Most state and occupational pension benefits
- Income related benefits, tax credits and child support
- Duty to provide reasonable maintenance for your civil partners and any children of the family
- Ability to apply for parental responsibility for your civil partners child
- Inheritance of a tenancy agreement
- Recognition under intestacy rules
- Access to fatal accidents compensation
- Protection from domestic violence
- Recognition from immigration and nationality purposes
- With the introduction of civil partnerships there has been important changes affecting same-sex couples who claim income related benefits, regardless of whether the couple decide to form a civil partnership.
- In order to form a civil partnership you must first give notice. A civil partnership can be formed in England and Wales at a register office or an approved premise.
- The General Register Office has information on the process and costs of forming a civil partnership.
- The Department for Work and Pensions has published a leaflet containing information on how partnerships may affect your benefits.
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.
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.
- Will - A legal document which sets out the wishes of the testator for the distribution of his or her estate and certain other matters after his or her death
- Beneficiary - Anyone who receives anything from your Will
- Executors - those people you choose to make your Will happen
- Administrator - Someone who is appointed by law to settle your affairs if you die without a Will
- Guardian - A person with legal control or responsibility for a Minor (i.e. a child under 18 in the UK, under 21 in the UAE)
- Minor - Under English Law, a person under the age of 18; Under UAE law, a person under the age of 21.
- Testator - A person who makes a Will
- Witness - A person who signs a Will to verify that they saw the testator(rix) sign it and that he/she was of sound mind at the time. Each Will must have two witnesses
- Issue - Your children
- Sibling - Your brothers & Sisters
- Codicil - To make small change/amendment to an existing Will you can add a codicil.
- Crown or Treasury - The UK Government. If you do not have a Will and have no next of kin, the Crown receives your estate
- Estate -The total value of everything you own at your death, less any outstanding commitments
- Funeral arrangements - Directions you can give in your Will regarding your wishes such as details of your burial, funeral services, 'In memoriam' gifts in lieu of flowers, etc
- Inheritance Tax - A 40% tax payable on larger estates. (A legacy to charity is free of Inheritance Tax)
- Intestate (or Intestacy) - The name for the situation that arises when someone dies without making a Will
- Legacy - A gift in a Will - either a specific item (a Specific Legacy) or a gift of money (a Pecuniary Legacy)
- Obtaining Probate - The legal process of establishing that your Will is valid and that your executor(s) is/are legally authorised to manage your estate
- Residue or Residuary Estate - The remainder of your estate after the deduction of tax, debts, legacies, and the expenses of administration
- Residuary beneficiary - A beneficiary who receives the residue of an estate, or part of it
- Trust - An arrangement under which a person or persons (the trustee or trustees) hold and manage property for the benefit of another person or persons (the trust beneficiary or beneficiaries)
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:
- The father's share is one sixth when the deceased leaves a son or a son's son. However, if the deceased is not survived by a son or grandson, his father will, in addition to this share (the one sixth), also gets a share of being "Asaba". (Asabaat includes relatives in whose line of relationship no female enters).
- The grandfather's share is like that of the father's share. In relation to this, according to Imam Bukhari amd Imam Muslim, the presence of the father deprives brothers of their share in the inheritance. But this is not the case for a grandfather. Abu Hanifa is also of the opinion that the presence of a grandfather deprives the brother of his share in the inheritance. Also, the grandmother of the deceased has no share in the presence of the father of the deceased. However, she has a share in the presence of the grandfather.
- The third set of heirs are uterine brothers and sisters. They are entitled to one-sixth if their number is one, and one-third if they are more than one
- The husband's share is half the property of the deceased wife if she has no children. But if she has children, then it is one-quarter
- As for the wife, if her spouse dies childless she is entitled to one-fourth. If, on the other hand, he has a child or children, her share is reduced to one-eighth.
- If the deceased leaves behind a daughter, her share is half. However, if he has more than one daughter, then they are entitled to two-thirds.
- If the deceased leaves behind male child(ren) as well as daughter(s), then the daughter(s) would be treated as "Asaba" and the male child(ren) would be entitled to double what the female child(ren) receives As for granddaughters, they stand on the same level as daughters. If, for instance, there is a situation where the deceased is survived by a daughter and also by one or more granddaughters, they would be entitled to a one-sixth share. Moreover, if a son survives the deceased, the granddaughter is not entitled to any share. However, if he is survived by grandsons and granddaughters, they would be treated as "Asaba" and the male grandchild would be entitled to double that of the female grandchild
- Furthermore, if the paternal grandmother or maternal grandmother survives the deceased, she is entitled to one-sixth. The maternal grandmother is deprived of her share if the mother of the deceased is alive, and if the father is alive, the paternal grandmother is deprived of this share.
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
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.