The Importance of Having a Will
06 Oct 2021
For those that may not know – what is a Will?
A Will is a legal document in which an individual states their wishes in relation to distribution of their assets in the event of death.
What are the main things a Will covers?
As well as the distribution of assets (called the ‘estate’), a Will can cover many other important decisions such as the appointment of guardians for minor children, expressing funeral wishes, the setting up of trusts for disabled beneficiaries and the nomination of executors to take charge of the administration of the Will. The role of the executors is to ensure the wishes stated in the Will are upheld after any liabilities, expenses and taxes are settled.
Can anyone have a Will? Or is it usually those with family/children?
Anyone who has assets, whether they are immovable assets such as real estate, or movable such as bank accounts, investments or shares should have a Will. In the UAE, assets that are subject to local inheritance laws include local bank accounts, cars, boats, end of service gratuity benefits and UAE-based real estate, including off plan properties.
In addition, those who have minor children should also have a Will to ensure the appropriate guardians are appointed, not only to care for the children whilst they are young, but also to manage the assets that the children inherit to ensure they are appropriately preserved for the current and future education, benefit and maintenance needs of the children. In the UAE a minor is a child under the age of 21.
Furthermore, if you have specific personal possessions, perhaps of sentimental value that you wish to leave to particular individuals, then it is advisable to put a Will in place to ensure your wishes are clear and can take effect in the event of your death.
Finally, for those individuals who have assets in different countries which may be subject to various inheritance tax / succession regimes, it is usually advisable to put separate Wills in place, each in accordance with the laws of the land where the assets are based.
Where do you start when it comes to getting a Will? Are there different types?
The first step would be to make a list of all the assets that you own, noting the type of assets (e.g. real estate, bank accounts, company shares etc.), and then note the location of the assets. For some classes of assets, the location will be obvious, for example, if you own real estate in UAE, then UAE inheritance laws would apply to succession of that asset in the event of death, and you would be advised to put a UAE Will in place.
For other asset classes it may not be as obvious, for example, offshore bank accounts. You may operate these online but they are actually based in offshore jurisdictions such as Jersey or Switzerland. The laws of those jurisdictions would potentially apply to succession of those bank accounts, or alternatively, your ‘home country’ laws may apply instead. This is where it is important to seek specialist legal advice to ensure your wishes are upheld in respect of all the assets that you own regardless of their location.
In the UAE, there are different inheritance laws that apply to Muslims and non-Muslims.
It is permissible and indeed strongly advisable, for non-Muslim individuals who own assets in the UAE, to register a local Will through either the DIFC Wills Service Centre (DIFC WSC) or through the Abu Dhabi Judicial Department Non-Muslim office (ADJD). Both registration options can cover assets in any Emirate in the UAE and can also include guardianship provisions for minor children. The choice of registration option shall depend on your specific circumstances and it is vital that specialist legal advice is sought to ensure the most appropriate registration option is followed.
For Muslim individuals there are also options available for registration of specific types of Wills and also other arrangements and structures that can be put in place to ensure assets are distributed in the desired manner – again specialist legal advice should be sought to guide and inform on the options available.
- The next step would be to decide who you wish to appoint as executors, guardians and beneficiaries (individuals that would inherit your assets), and in what shares. It is advisable to also discuss this with close family and your legal advisor whilst planning your Will.
- Finally, the drafting and signing of the Will is very important. If the drafting is not clear, your wishes may not take effect in the manner you intend, or at worst, the entire Will may not be valid. Similarly, if the Will is not signed in accordance with the correct legal formalities it may not be upheld in the event of your death.
If you have a Will done in the UAE is it legal in the country you are from/passport holder for?
This shall depend on how your Will has been drafted, and where your assets are based. It is advisable to seek specialist legal advice to ensure that your wishes are upheld in the most efficient manner, in the context of both the UAE laws, the laws of your home country and any overriding considerations that would apply.
What are the key important reasons for having a Will?
A Will is the only document in which you can legally declare your wishes for distribution of your assets after your death, and appoint guardians to care for your minor children. A Will, if correctly drafted, can clearly communicate your wishes for distribution and ensure there is no ambiguity in how your estate should be dealt with.
A Will may provide inheritance tax benefits and also allow the formation of a Trust upon death, to ensure vulnerable and minor beneficiaries are cared for by the appropriate individuals.
Finally, leaving a Will and appointing executors allows your loved ones to deal with your assets in a quicker and more efficient manner through a formal probate procedure, as opposed to having to deal with the longer and often more costly, distribution of assets where no Will exists.
In addition, you may wish to benefit unmarried partners, step children, adopted children, remoter relatives (such as aunts, uncles or cousins), charities or existing trusts and this can only be done in an appropriately drafted, and legally executed Will.
What happens if you don’t have a Will? Especially those with property or children?
In the absence of a valid Will, any assets that are owned shall be distributed in accordance with the default inheritance laws of the relevant country - called the intestacy laws.
Intestacy laws are usually quite rigid and benefit only legal spouses and blood relatives, in fixed shares. Intestacy laws do not usually allow unmarried partners, stepchildren, adopted children or any other parties to inherit a deceased individual’s assets. Furthermore, if there are no such surviving relatives (i.e. legal spouse and blood relatives), the deceased person’s assets may pass to the State.
The absence of a valid Will may also give rise to unfavourable inheritance tax exposure in some jurisdictions.
Guardianship of minors is also adversely impacted in the absence of a valid Will. In such circumstances, legal guardians may have to be determined by a relevant Court and this appointment may not necessarily be in line with the parents’ wishes, or indeed be those individuals who the children are familiar and comfortable with.
For further assistance and information on making a Will for UAE-based assets and guardianship of minors, please click here.
The above is a general commentary on the various matters and should not be construed as specific legal advice.