Making a will with the future in mind

I am an expatriate who has been living and working in the UAE for almost 20 years and I have decided it's time to plan my estate in the event of my death. I have property both here and back in my home country. I also have a will back home but am unsure if I need to revise this or draw up another will to cover my assets in Dubai.

Considering that planning one's estate is an exercise designed to bring clarity and certainty to the transfer of assets on death, it is surprising and worrying that there is so much conflicting advice about what steps are required to deal with that most basic of estate planning devices in the UAE, the will.

A will is a comparatively simple document: you appoint executors to deal with your estate, guardians to care for your children and give directions for the payment of debts, the disposal of your body and the transfer of your assets. So why can it all seem so complicated? Simple, it's because you are an expat.

If you live outside your home country your estate is governed by a minimum of three sets of laws: your home country law, the laws of the country your assets are located in and the private international law.

As a general rule, your home country law provides that you can make a will to deal with all of your home country assets, whether those assets are movable (cash, cars, personal effects, antiques, art) or immovable (real estate or an interest in real estate).

Also, as a general rule, your home country will can cover your foreign movable assets, but not your foreign real estate. This is because private international law stipulates that the disposal of real estate on death is governed by the laws of the country in which the real estate is located.

Some countries will allow foreign owners of real estate to make a will disposing of their real estate as per their home country law — which is the case in the UAE.

However, other countries apply fixed heirship rules for religious or civil reasons. To ensure that your will is drawn up correctly, you need to seek the advice of a fully qualified lawyer who specialises in this area of law.

The lawyer's initial task will be to ascertain which laws will govern your estate, taking into account your nationality, domicile or citizenship, the type of assets you own, how you own them — jointly or in your sole name — and the actual location of those assets.

Tax consequences

There may be tax consequences to consider and legal obligations you may owe to a former spouse or children from a former marriage which, if ignored or not properly dealt with, will almost certainly lead to litigation. The will you already have may remain intact or perhaps require subtle amendment.

As there is a strong likelihood that you will end up with more than one will, it is essential that they dovetail each other and that none are accidentally or negligently revoked which could lead to potentially dire consequences for your heirs.

However, if the prospect of having wills in more than one jurisdiction there is an alternative: With careful planning, assets can be restructured so they are excluded from your personal estate and pass outside your will, avoiding the whole probate process, and allowing you to continue to retain control of and enjoy the benefit of those assets throughout your life.

(This is the first of a two-part series on wills. Second part will be published next week)

The writer is a a solicitor and senior estate planning consultant with Nexus Insurance Brokers, www.nexusadvice.com