04 Jan UAE Wills vs Foundations
Wills and foundations are two options for legacy planning that are gaining popularity in the United Arab Emirates. Both allow for the effective management and protection of assets as well as succession planning for future generations. Understanding the basics of wills and foundations, the differences they have and the similarities they share will help you choose the right one for your situation.
Wills and Foundations in the UAE
The interpretation and application of inheritance laws in the UAE can cause much uncertainty for expatriates, particularly with respect to which law takes precedence and the correct entity to use for different circumstances.
Wills and foundations are two common structures that share certain elements but also key differences in their use and application.
A will is a legal declaration of a person’s wishes regarding the distribution of his/her property or estate after death. It is facilitated by a lawyer or other professional and may include assets, movable funds and property located in and outside the country.
In contrast, a foundation is an independent legal entity that allows wealthy families and HNWIs to segregate their personal and commercial wealth. It is a long-term holding structure used for asset structuring, succession and estate planning and philanthropic purposes.
Its assets belong to the foundation in its own name, and it’s managed by council members and may be guided by the wishes of its founder and governed by its charter and by-laws.
It is similar in structure to a corporation in the respect that it has its own legal identity. However, unlike a corporation, a foundation is considered an ‘orphan’ structure since it does not issue any shares. This enables the foundation to own and hold assets in its own name or on behalf of the beneficiaries which adds a layer of separation between the founder, the assets and their estate.
What similarities and differences do wills and foundations have?
Both foundations and wills retain key characteristics that are important to consider before choosing the right one for your wealth.
Structure
A will can be created for both Muslim and non-Muslim individuals and is enforced after death. A Notarial Will only covers 1/3 of a testator’s assets if they are Muslim and 100% if they are non-Muslim. A DIFC Will is for non-Muslim expatriates and covers all worldwide assets. A Notarial Will follows the UAE Personal Status Affair law, while a DIFC Will follows DIFC Common Law.
A foundation can be structured for both Muslim and non-Muslim individuals, it allows tbe inclusion of all kinds of UAE assets and is enforceable once the assets are moved to the foundation. Foundations follow DIFC and ADGM Common Laws.
Setup Requirements
The setup requirements of a will are fewer in scope compared to a foundation. A will usually involves drafting a document that outlines how you want your assets to be distributed upon death. You will be required to have an executor of the will and a guardian, both of whom need to be over 21 years of age. Then you will need to translate the will to Arabic if it isn’t already in that form. Finally, you will need to register your DIFC Will at the DIFC Wills Service Center or your Notarial Will in the Dubai Courts.
To create a foundation in the UAE, you will need to register and incorporate the foundation according to Foundations Law. The foundation will need to have a drafted charter that outlines the founders, objectives, investments, timeframe, and bylaws. Unlike a will, a foundation requires individuals to be named to key roles, such as a governing council member, a registered agent, or a guardian.
In the UAE, there are currently three jurisdictions that have foundations regimes. These are The Dubai international Financial Centre (DIFC), The Abu Dhabi Global Market (ADGM) and The Ras Al Khaimah International Corporate Centre (RAKICC). Each of these are very similar in structure but are governed individually by each respective centre’s laws and regulations.
Practical Applications
A will is great if you are looking for a straightforward and cost-effective solution to passing your assets down after death. It provides full protection of all family members and even allows for the guardianship of minors (something which cannot be stipulated under a foundation). However, with a will, assets will be frozen until probate proceedings are completed which can cause delays in the distribution of the assets to family members.
Many HNWIs and wealthy families are now moving towards setting up a foundation because of the added legal protection, expanded privacy features, and reduced taxation. A foundation also allows for better continuity since even upon the founder’s death, there is no probate requirement, and the assets will not be frozen.
Moreover, there is no dilution risk as your assets remain consolidated under the foundation. Foundations also retain a 0% personal income tax rate and give you access to different ‘Double Taxation’ treaties. Additionally, a foundation structure leads to the ability to transfer assets into the foundation name, including real estate and other investments.
Pros and Cons
Both wills and foundations have pros and cons that may make one more appealing than the other. Firstly, wills don’t have any asset protection from third parties. This means that your assets could go to probate court after you pass if there are any outside claims for your property. On the contrary, foundations do protect your assets from third-party claims, eliminating the risk of going to probate court.
One of the major disadvantages of a foundation is the ongoing maintenance costs required. Wills generally have a one-time setup fee, making it a cost-effective solution in the short term. However, there is always the risk of probate court, which can incur significant legal and professional fees.
Choosing the Right One
Choosing between a will and a foundation can be a tricky decision, especially as both retain advantages and disadvantages. This is why working with an asset and wealth management company, like Huriya Private, can be beneficial.
Huriya Private has over 20 years of experience in the domain of corporate structuring. We have unparalleled knowledge of business practices and legal requirements in the UAE as well as an international network of contacts and a deep understanding of the needs of modern-day high net worth clients and international businesses.
We can help you set up a will or foundation in the UAE and ensure that your business is fully compliant with all local laws and regulations. If you need help with this or any other immigration, financial or corporate structuring issue, please don’t hesitate to contact us on info@huriyaprivate.com and we will be happy to help.
