In our experience, a common challenge is dealing with clients who relocate to another country, sometimes permanently or indefinitely, and therefore require cross-border estate planning.
South Africans who have relocated to the United Arab Emirates (UAE) and who hold assets in both jurisdictions require specialised advice that is difficult to attain without the knowledge of experts with cross-border experience. As the legislative frameworks include different inheritance tax regimes, different estate administration processes and different taxes applicable in both countries, this often necessitates a Will to be drawn up in both countries to ensure that contrasting regulatory frameworks are accounted for.
Most clients assume that, because they have a valid Will in South Africa, their UAE assets are covered under their South African Will, which is not necessarily the case. If a Will isn’t legally recognised in the UAE, it could lead to delays, extra legal fees, and complications during validation – or probate, as it is better known.
If you would like your South African Will to apply in the UAE, it will most likely need to be translated to Arabic, notarised, and attested by the UAE Embassy in South Africa and the UAE Ministry of Foreign Affairs to be recognised. It is therefore advisable in most instances to have a separate UAE Will specifically for your local UAE assets.
Understanding jurisdictional differences
South Africa’s legislation is based on Roman Dutch civil law, English common law, and South African customary law, which allow the freedom of testation, and anyone can choose how they want to distribute their assets. The UAE differs in that it follows a civil law system influenced by the Islamic principles of Sharia law.
The UAE has encouraged the inflow of diverse nationals by introducing legal reforms which allow for non-Muslims to elect to opt out of the Sharia-based inheritance system and to rather apply the laws of their home country to the succession of their estates. Since the passing of Federal Decree-Law No. 41 of 2022 on Civil Personal Status, a non-Muslim individual can now choose how they wish for their assets to be disbursed in a manner that is in line with civil principles and their personal wishes.
André van Niekerk 1 Apr 2025
Tax considerations
While the UAE does not impose estate or inheritance taxes, one needs to plan for the fact that South Africa imposes estate duties of up to 25% on the worldwide assets of its residents. However, this does not automatically allow for the testator or testatrix to elect where they wish to be taxed as this is dictated by the taxing rights that each country innately has by operation of their local tax law and international tax laws.
Although you may have relocated to the UAE, to fall outside of South Africa’s estate tax net you would have had to cease South African tax residency with the South African Revenue Services (Sars). This means that if you have not ceased your South African tax residence with Sars, your UAE assets could still be subject to estate duty in South Africa.
Although the UAE does not impose inheritance tax, the standard estate process – which includes the freezing of bank accounts (including joint bank accounts) and restrictions on property transfers – is applicable until probate is finalised, which can cause unanticipated delays in accessing immediate funds leading to potential financial strain on heirs. It should be noted, though, that a registered Will does not mean your assets will not be frozen. They may, but the probate process is much quicker and seamless.
To ensure that each Will complies with the nuances of the different countries’ laws, it is usually best to have a Will drafted in each country.
What happens if you don’t have a Will?
If you do not have a Will in South Africa, your South African estate transfers by way of the Intestate Succession Act; whereas if you have a Will, your assets are distributed according to your wishes and freedom of testation.
If you do not have a registered Will in the UAE, the distribution of your estate will be handled by the local courts in accordance with the UAE legal procedures which are based on Sharia law principles, even though you are non-Muslim. For instance, if you own assets in the UAE and you do not have a registered non-Muslim Will, the UAE courts may apply Sharia inheritance rules by default, which may limit your female spouse’s share of her inheritance to only one-eighth.
What are your options regarding registration of a non-Muslim Will? There are three options for registering a non-Muslim will in the UAE:
- DIFC Wills Service (Dubai): The Dubai International Financial Centre (DIFC) is an English Common Law Court and operates on its own court rules (and not Sharia laws). Wills registered here apply to assets in all seven Emirates and, in some cases, international assets. The benefit with this option is that the DIFC Court will also be responsible for probate which ensures an expeditious and predictable process without the application of Sharia law.
- ADGM Wills Service (Abu Dhabi): The Abu Dhabi Global Market (ADGM) is situated in Abu Dhabi, and similarly operates as a common law jurisdiction, applying the English common law as opposed to Sharia law. The registration fee for a Will is substantially cheaper than registration in the DIFC, but the ADGM does not offer probate services. Probate will be processed through the Abu Dhabi Judicial Department (ADJD), which means this option has one additional step. Although the ADGM is situated in Abu Dhabi, it covers all assets in all UAE emirates and a major benefit is that the full process in the ADGM is fully automated via an online platform.
- Notary Public Will (Onshore Court): Expatriates can also register a Will through a UAE government notary public, which shall be registered in the Onshore Courts and follows the UAE Federal Laws. This process is very affordable but brings legal uncertainty as the Court still has a discretion over whether to apply Sharia law.
Registering a Will with either the DIFC or the ADGM means that non-Muslim expatriates can elect for their UAE assets to be distributed according to their personal wishes and according to civil law principles.
Tania Broughton 30 Jun 2022
Other benefits of a will in the UAE
Another key benefit of registering a will in the UAE is that you can assign the guardianship of your minor children. In South Africa, guardianship is usually granted to the biological surviving spouse.
However, without a will in the UAE, the mother as the surviving spouse is not guaranteed guardianship or decision-making authority in respect of the minor child under Sharia law. Under Sharia law, legal guardianship typically defaults to the father, and if he is deceased, it may be assigned to a male relative. In practice, the UAE Courts do make decisions based on the best interest of the child, but this can take some time and is not guaranteed.
In South Africa these issues are usually very straightforward, but in the UAE where Sharia law applies by default in absence of a registered Will, you may wish to secure your peace of mind through registering a non-Muslim expatriate Will.
Consulting legal and tax professionals
Engaging with professionals familiar with both the South African and UAE legal systems is essential to ensure both Wills are harmonised, to prevent potential conflicts and to plan the seamless execution of your estate across borders.
They will be able to assist you to:
- clearly define which assets fall under which jurisdiction and the applicable laws.
- ensure that you are fully aware of any tax consequences of holding assets in each jurisdiction.
- comply with the administrative requirements of each jurisdiction to make sure your will is valid and enforceable.
In conclusion, for South Africans residing in the UAE with assets in both jurisdictions, a tailored approach involving separate wills for each jurisdiction is the most effective way to ensure compliance with local laws and personal wishes. This strategy, supported by professional legal and tax advice, facilitates the orderly intended distribution of assets, while complying with the distinct legal landscapes of South Africa and the UAE.
