Changes to the UAE penal and civil codes

Announced on 8 November 2020

What do the changes to laws on inheritance mean for expat parents in the UAE?

Until now, in some cases, if an expatriate died without a Will, the family of a deceased person would find that the deceased’s assets were divided as per Sharia law - which expats were not used to or did not usually favour.

Previously, if a non-Muslim expat failed to specifically petition to the court to apply their home country’s law to their will upon their death, the UAE courts would apply Sharia law by default.” This would involve some mandatory rules of division of your estate between certain members of your family, which may not always be aligned with your wishes or what you would expect.

the new changes stipulate that, if you have not made a Will at the time of death, the inheritance would be dealt with according to the law of your country of nationality.

With the announced changes, we expect the citizenship of the deceased to dictate how assets will be divided unless there is a written Will (which may itself provide how to distribute assets and which law governs its execution). Therefore, we expect citizenship, more than religion, to play a part in inheritance.

An exception however remains with respect to UAE real estate which shall continue to be subject to UAE laws, unless a Will has been registered in the UAE.

What happens if the parent who passes away without a Will has dual nationality?

The detailed amendments have not yet been released therefore it is still not confirmed.

However, if there was a conflict in respect of the laws of the two countries, then there is a possibility that the UAE law and principles of Sharia would apply.

Do these changes mean it is less important for expat parents in the UAE to make a Will?

Although it may seem that there is now less of a need to arrange a Will for expats living in the UAE, there are some key reasons why you may still want to:

1) You may not agree with the intestacy laws of your country of citizenship

Inheritance generally take effect in one of two ways: (1) as per the terms in a valid Will; or (2) in the absence of a valid Will, as per intestacy laws [laws relating to the estate of a person without a Will.

Previously, if a non-Muslim person died in the UAE, the estate could be divided according to Sharia law. Now, with the announced changes, when such a person dies without a Will, the assets can be divided among his or her heirs according to the intestacy laws of the deceased’s country of citizenship.

Intestacy laws change from one jurisdiction to another, and even in a person’s home jurisdiction, intestacy law may not align with what the deceased would have wanted. Therefore, it is advisable to have a Will to allow the assets of the deceased to pass as the deceased person intended.

2) Making a Will makes things easier for your loved ones

Many non-Muslim expatriates living in the UAE are unaware that in the absence of a registered Will, recognised by the UAE legal system, the process of transferring their assets after death can be time consuming, costly and fraught with legal complexity.

As a practical matter, access to the assets of the deceased individual is restricted. Assets cannot be transferred or be dealt with in any manner without direction from the local Court. In some circumstances, this can give rise to delays and financial complications at a critical time.

3) It's still crucial to arrange guardianship of your child

The importance of arranging guardianship for your child has also not been affected by the announced legal amendments so far.

Serious complications can occur when infant children are left behind and no guardianship arrangement recognised in this country has been put in place.

In default, Sharia inheritance rules would apply to assets and it would be at the discretion of a local judge to choose the child’s guardian.

Under UAE law, the father is the guardian of the child or children. In the event that the father passes away, the closest male relative on the father’s side of the family is appointed as guardian of any minor children. The mother of the children would retain custody, therefore the children may stay in her physical residence, subject to conditions such as her not remarrying. If a woman passes away in the UAE, then the father would remain the guardian and custodian of any minor children.

The amendments did not specifically mention provisions for guardianship of minors or the issues surrounding guardianship and therefore it would still be advisable for parents to consider executing a Will and include guardians for their children.