Estate planning

Expatriates and non-Muslims acquiring assets in the UAE – property in particular – may not realize that their estate planning with regard to inheritance allocation may not hold up according to local laws.
Estate planning
By Martin Saldamando
Thu 01 Feb 2007 12:00 AM

An informal survey of lawyers in Dubai who advise clients on freehold property investment reveals that only about 5% of buyers are aware of the laws regarding non-Muslim, foreign nationals and the purchase of freehold property. If you have a legal will and you want your home country laws to apply to the way your inheritance is distributed to heirs, your case will have to be proved before a UAE judge.

As property investors in the UAE start to focus on the long term, they will seek more clarity on how their freehold property ownership could be passed on to their descendents when they die. It is a controversial issue, still open to many interpretations, and at present one that sparks intense debate among lawyers.

“Of our clients who are aware of the laws regarding personal status for non-Muslims, they usually have concerns about joint ownership, for example a husband and wife, and who would get ownership of the property if either spouse dies,” says Alexis Waller, property lawyer with the Middle Eastern regional office of British law firm Clyde & Co.

Furthermore, Waller observes, “Such matters are governed principally by two federal laws – the UAE civil code and the UAE Personal Affairs Law. Inheritance is unlike other property ownership pre-requisites, such as title registration. The latter issue was directly addressed by promulgation of one local Dubai Law, the Real Property Registration Law which provides official freehold ownership rights to expatriate investors, and also establishes a property registration mechanism at the Dubai Land Department.”

The rule in the UAE is that the home country law of the deceased will apply to general, non-real estate matters of inheritance only, and this principle has been confirmed by various judgments issued by the local courts.

If you are a non-Muslim expatriate and want your home country laws to apply to the way your inheritance is distributed amongst your heirs, they or their legal representatives would be required to bring a case before a judge in a UAE court.

For example in 2000, the Dubai Court of Cassation (Supreme Court) issued a ruling (No. 49 & 50) that in matters of personal status, such as marriage, inheritance and succession, claims made by non-Muslim, foreign nationals would be decided by a UAE judge using the home country law of the non-national as the rule of reference. However, there is a caveat, being that this should only be the case if the country from which the non-national comes from, itself has an inheritance law in place. Also, only if there are no UAE legal conflicts with the home country law. These aspects would be investigated and determined by a judge.

Notably, the UAE is not a common law jurisdiction, so unlike the UK, court decisions are not binding on future decisions the courts make. All court decisions are purely discretionary.

Some legal experts have interpreted the aforementioned 2000 ruling, and other similar local court rulings, surmising that if an expatriate’s home country laws on inheritance allow the citizens of that country to transfer their real estate to heirs by use of a will, then it follows that UAE judges would also allow this distribution of real estate.

While this thinking might indeed be in line with an international outlook on protection of foreign investment, it is actually much more common in practice worldwide that in matters relating to inheritance of real estate, such assets are excluded from application to the home country law of the deceased person.

The UAE is no exception, and the federal civil code clearly states that the law of the place where the property is situated applies to inheritance matters relating to real estate. Also, that the law of the UAE shall apply to wills made by non-nationals disposing of any of their real estate owned in the country.

Judges in the UAE determine cases of inheritance of any real estate located in the UAE (and owned by an expatriate at the time of death), by applying to the provisions of the UAE civil code, which could cause difficulties for non-Muslims because it means that Islamic Sharia law will apply to how the real estate is passed on to their heirs.

Fair Share

In 2005, the new UAE Personal Affairs Law (also a federal law) was promulgated, setting out specific rules for the appointment of heirs and the distribution of a deceased’s estate for both national and non-national Muslims in the UAE. As set out in chapter two of the English translation of this law, “Shares and their Holders”, the method of disposition of a deceased’s estate is quite complicated, and it takes a specialist in Islamic law to determine exactly the amount of each particular estate that an individual heir would receive.

As an example, if a deceased was married, with one son and one daughter, the entire estate could be distributed as follows: one-sixth of the entire estate would be awarded to the wife, with two-thirds of the remainder to the son and one-third to the daughter. Some property investors may find it difficult to accept such a distribution of their real estate assets, and so they should seek legal advice.

Yet, interpretations of the new law differ too such an extent that some lawyers in the UAE insist that the Federal Personal Status Law should determine how real estate is to be distributed as per the documented will of the expatriate owner.

Money asked several legal experts in Dubai to study the Personal Affairs Law and give their opinion. They found it difficult to determine with certainty whether the Personal Affairs Law has any bearing on real estate owned by an expatriate, or if its provisions would take precedence over the Civil Code’s absolute restriction on real estate inheritance. This study did not reveal any specifics on whether real property and immovable assets located in the UAE could be distributed as per a non-Muslim expatriate’s home country laws. Notably, the new law neither refers to wills of foreign nationals, nor to whether such wills will be honoured.

The Personal Affairs Law refers to inheritance and succession matters in general, whereas the UAE Civil Code is specific on matters of real property. This has given rise to halting endorsements of the Personal Affairs Law, many of which have been published in local press reports.

For example, Lisa Dale, partner and head of the property law department at Dubai-based Al Tamimi & Co. Advocates and Legal Consultants, recently published the following: “Whilst it is not entirely clear, it would seem that as a result of the new Personal Affairs Law, a foreigner can opt for the laws of his own domicile to apply on the question of inheritance of his property.”

Some legal advisors go further, having absolute confidence in the Personal Affairs Law and its ability to override the civil code restriction. Last year, eminent lawyer Essam Al Tamimi, gave a speech on the topic at a property investment function in Dubai. He is quoted as saying, “The new law [Personal Affairs Law]

protects the rights of the foreign investors. In case a foreigner does not want to be subjected to the UAE inheritance laws, then their case will be dealt with in line with the law of their country. In such instances, the party concerned will have to prove their case properly in light with their own country’s laws in front of the UAE’s judges.”

Whereas, at the same function, Shahram Safai, a partner at Afridi & Angell Legal Consultants in Dubai, fervently disagreed. Safai says, “Recently, there has been a lot of discussion about the UAE Personal Affairs Law, but in my view it doesn’t have any effect on the fact that inheritance of real estate will be governed by Islamic Sharia law. Real estate is immovable property, and so there will always be a conflict with the provisions of the UAE civil code, which states specifically that the UAE law will apply to matters of inheritance of immovable property.”

Furthermore, Safai notes that “In general matters of inheritance, however, the Personal Affairs Law will apply, but that is only for disposing of tangible personal property such as furniture, jewellery, automobiles, etc., which are part of the deceased’s estate”.

“I also don’t see how the civil code would not apply,” comments Waller. “The civil code would take precedence because the code is more specific on the matter of immovable property in the state, whereas the Personal Affairs Law is more general. What we don’t have is something in writing with hundred percent certainty on this subject. It has not been tested yet in the courts, and therefore, we always advise our clients to make and validate a will just in case,” he adds.

Offshore Structure

The Dubai Land Department has not indicated that any legislation is in the pipeline to clarify whether an expatriate’s will safeguard their real property inheritance from distribution as per Islamic Sharia law.

“If an investor does not have full confidence investing in the UAE as an individual, then they always have the option of opening an off-shore company and buying the property under the off-shore company’s name,” observes Safai. In this respect, he recommends setting up offshore companies located in common law jurisdictions such as the British Virgin Islands, Cayman Islands or the Isle of Man.

Notably, almost all lawyers in Dubai will tell you that setting up an offshore company is one way of bypassing the Islamic Sharia law provisions on inheritance. Such an arrangement is set up by the offshore company acquiring the UAE property. If the investors are a husband and wife, then both spouses are made equal shareholders in the company, and the Memorandum of Association (MOA) of the offshore company has a clause in it that is triggered upon the death of one of the shareholders.

The trigger clause states that in the event of one of the shareholders dying, the other shareholder becomes the sole owner of the company, who then automatically ‘owns’ the UAE property.

Also, additional directors can be appointed to the company at anytime, so children could be included in due course as a means of passing on the assets through the offshore company. This, say legal experts, technically bypasses the provisions of the UAE civil code regarding real estate inheritance.

“Shares in a company are not considered to be real property, so they pass under the UAE civil code restrictions on inheritance of real property owned in the UAE,” says Waller.

And, according to Rima Jameel, partner of Motei & Associates located in Dubai, “Certain other provisions have to be included in the MOA which will allow the company to bypass the applicability of the local laws.

“There are certain restrictions on setting up offshore companies that need to be addressed correctly to make sure the vehicle is effective for the individual client’s needs.”

But, in all cases, Jameel notes, an investor should seek legal advice from an expert who is knowledgeable of the local UAE laws when opening an offshore company, to make sure that the vehicle will fulfil all of their specific requirements.

Free-zone Option

Some Dubai-based advisors recommend setting up a company at the Jebel Ali Free Zone (JAFZA). Setting up in JAFZA to purchase property in Dubai may enable expatriate property buyers to bypass Islamic Sharia law provisions on inheritance of real estate.

And, just recently, the Ras Al Khaimah Free Trade Zone has also started providing offshore company registration, and some financial advisors have been quoted in the local press as saying these are also appropriate for purchasing property in Dubai. According to Raju Menon, managing partner with Morison Menon Chartered Accountants, Ras Al Khaimah Offshore companies provide some distinct advantages like the provision of “bearer shares” under which an entity may decide not to disclose the owner’s identity. In such cases, the shareholder’s identity is known only to the appointed agent. However, the government may ask the shareholder’s identity if required in cases such as bad transactions.

With regard to the Jebel Ali Free Zone, companies are regulated by the Jebel Ali Free Zone Authority (JAFZA). The cost of setting up a company under JAFZA depends on the individual characteristics of the client, what type of agent is used (lawyer, financial advisor, business consultant), and what services are required. At the Middle East office of the British law firm, Clyde & Co, the fees to set up an offshore company in JAFZA range from US$3,270 (AED 12,000) to US$4,900 (AED 18,000).

Experts note that whatever type of agent you choose to set-up a company, the fees become negligible when compared to the potential bill from death tax, capital gains tax and transfer fees (stamp duty), and for the peace of mind with regard to your inheritance planning.

Notably, an offshore company can be also used to purchase assets elsewhere in the world, and if you plan to use it for business purposes, it can facilitate an application as a branch office in the Jebel Ali Free Zone for a full trading license, subject to you renting an office in the Free Zone.

The JAFZA regulations do not require any minimum capital requirement for setting up an offshore company, but the authority maintains that whatever the amount of paid up capital is, it must be commensurate with the activity and purpose of the company.

There is no minimum, or maximum number of shareholders specified for an offshore company at Jebel Ali Free Zone. All of the offshore company’s shares must rank equally, be nominal (as opposed to bearer shares), and be fully paid up at the time of issue. The offshore company must issue share certificates within two months from the date of allotment or transfer and must appoint auditors who shall prepare their reports in accordance with the Regulations. Shares in offshore companies are easily transferable by written instrument. There are no express legal restrictions regarding the company’s purchasing of its own shares.

However, the offshore company must maintain certain records at the registered office. This includes a register of the shareholders, directors and the secretary, plus minutes of general meetings, directors and committees of directors, accounting records, and auditor’s reports. The records may be kept in any form the company considers appropriate. But, the offshore company must maintain sufficient accounting records for transactions, revealing its financial position at any time, and enabling the directors to ensure that the accounts prepared comply with the requirements of the regulations. The accounting records required by the regulations should be preserved for 10 years, and are subject to inspection.

Furthermore, offshore companies must hold a general meeting at least once a year. The first general meeting must be held within 18 months from the date of incorporation. Any meeting of the shareholders of an offshore company (other than an adjourned meeting) may be called by 14 days notice in writing.

Certain provisions in the Memorandum of Understanding need careful drafting in order to be tailored to a client’s unique circumstances and advantage. This requires an expert who is knowledgeable and experienced in all the laws of the UAE, and can best advise the client as to the most appropriate structure of the offshore company. Otherwise, problems could develop at a later stage.

Limitations

If an investor buying property in Dubai is convinced to do so through a special purpose vehicle or similar offshore entity, and if they are convinced to set up their offshore entity with JAFZA, they should be aware of the applicable laws that JAFZA regulated offshore companies must adhere to, and the limitations of using offshore entities.

All shares in a JAFZA regulated offshore company are subject to UAE law, which means that if a shareholder in an offshore company is Muslim, then upon his or her death, the deceased’s shares in the company are subject to Islamic Sharia law provisions regarding inheritance.

Jameel says that while JAFZA offshore companies may assist an investor in mitigating transfer costs (stamp duty) and the potential tax liabilities in their home countries, she advises that individuals who plan to use the JAFZA regulated offshore company as a way to get around inheritance laws in the UAE, should fully understand the limitations first. “The use of JAFZA offshore companies for the sole purpose of purchasing freehold property and avoiding the Islamic Sharia law, or applicable laws, on provisions regarding inheritance is risky. If the shareholders in a JAFZA offshore company [the property owners] are relying on the use of an undated share transfer letter, or an enduring power of attorney, to transfer their shares in the entity to their spouse [or other beneficiaries], this is risky and unwise. A share transfer at JAFZA does not take place until the transfer is registered with the JAFZA Offshore Registrar. If the Registrar comes to know of the death before registration of the share transfer, the share transfer filing will be rejected. More importantly, it can also be invalidated at any time by heirs who are not included in the share transfer by their contesting the transfer and confirming their interest in the shares of the deceased shareholder, “she explains.

Jameel also points out that the use of an enduring power of attorney (POA), as some financial advisors in Dubai are advocating to effect the transfer of property to the spouse upon death of the interest holder, is not advisable either because UAE law states that all POAs cease to remain valid upon death of the principal issuer of the POA. “It is important to note that probating an estate in the UAE [collecting money, paying debts and distributing what is left to beneficiaries] is a long and cumbersome process and could take anywhere from six months to one year,” she notes.

Other Constraints

Financing: A lot of banks in the UAE refuse to provide financing to offshore companies. They only agree to provide financing to individual entrepreneurs who are starting companies, and not offshore entities. In the event that your financing would depend on a loan from a local bank, your lender must be aware well in advance if you are going to use such offshore structures to make the property purchase, since it will have an influence on the terms you secure. The terms may not be as attractive as if you had taken a loan as an individual.

Timing: if you are interested in buying your freehold property through an offshore company, you will need to set up the company first, and then agree on a property to purchase. A lot of property investors make the mistake of opening an offshore company after signing on the bottom line to buy a property from a developer. Once an investor signs a reservation form on a particular property, then it is too late to purchase the property by way of an offshore company, unless you pay the developer a transfer fee. Most of the major developers charge transfer fees if you want to transfer the purchase agreement or contract to the offshore company. For Nakheel the transfer fee is 2% of the purchase price, Emaar charges 1%, while some developers charge as much as 7%.

Cost: Whatever kind of agent you choose to set up your offshore company, there will be costs you have to pay for their services. However, these may be negligible compared to the peace of mind and savings you would gain from avoiding potential taxes in your home country, and other expenses.

Future View

Some lawyers and government officials in Dubai are confident that it will become normal procedure in the UAE for the terms of a valid will belonging to a non-Muslim to be applied according to the specified disposition of property, according to the laws of the deceased’s home country. “I believe from my consultations with colleagues, government officials and other experts, that a properly validated will of a deceased expatriate would be honoured in Dubai. Once becoming a registered owner in the property registry at the Dubai Land Department, then one will have real property rights, and my opinion is that those would be able to be passed on to one’s heirs through a valid will without a problem,” says Waller.

Estate planning legal tools

Succession planning is essential after buying property since you are expanding your asset base, and all financial and legal advisors suggest that their clients make out and validate a will. Other instruments, like an “enduring power of attorney” (EPA), are also a good idea, since it may become necessary for a court to appoint one or more people to act for you. This document will allow a person(s) you have designated to manage your affairs in the event of you becoming incapacitated either mentally or through injury.

If a court proceeding, sometimes known as “intervention”, is required, then you may not have the ability to choose the person who will act for you. With an EPA, you choose who will act and define their authority and its limits, if any. The will only takes effect in the event of your demise, so an EPA is also good to have to give clear instructions and allow your affairs to be managed as you wish.

The person named in an EPA to act on your behalf is commonly referred to as your “agent” or “attorney-in-fact”. With a valid EPA, your agent can take any action permitted in the document. Often your agent must present the actual document to invoke the power. For example, if another person is acting on your behalf to sell your property in Dubai, the Dubai Land Department requires that a power of attorney be presented to them. Only thereafter will your agent’s authority to sign the title be honoured by Land Department officials.

“The UAE is not a common law jurisdiction, so unlike the UK, court decisions are not binding on future decisions"
“Real estate is immovable property, and so there will always be a conflict with the provisions of the UAE civil code”
“There are certain estrictions on setting up offshore companies that need to be addressed”
“A lot of banks in the UAE refuse to provide financing to offshore companies"

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