DIFC Courts probate: from death certificate to grant

Why probate is the part families forget

Take a hypothetical case. Anna, a non-Muslim resident of Dubai, has registered a will with the DIFC Courts and named her brother as executor, the person who will administer her estate. When she dies, the will says who inherits, but it does not by itself release her bank account or transfer the title to her apartment.

That work is done through probate, the court's confirmation of the executor's authority, which the DIFC Courts give in a Probate Order. The banks and registries holding the assets then act on that order rather than on the will itself.

Our previous issue covered making a will. This article follows what happens after a death, and it relies only on what the DIFC Courts publish. It is general information, not legal advice.

One limit on scope should be clear from the start. The ADGM Courts state that they do not provide a probate service, and that probate applications for wills they notarise go to the Abu Dhabi Judicial Department's Wills and Probate Office. What follows therefore covers the DIFC route alone.

The rules

Probate is governed by the DIFC Wills and Probate Registry Rules, in the version effective 30 June 2019, and by the practice directions issued under them. The main points are these:

If no death certificate can be obtained, the Registrar may accept other proof of death, though only in exceptional circumstances.

The steps

The DIFC Courts' published guide sets out eight stages, and most of them fall to the executor.

1. The executor completes the application form and witness statement and emails them, with a copy of the death certificate, to the probate team.
2. A Case Progression Officer is assigned as the single point of contact and asks for anything that is missing.
3. The executor, or their lawful attorney, attends in person to sign and present originals.
4. The executor provides a list of principal assets, such as property, bank accounts, financial products and vehicles, which becomes the schedule to the Probate Order.
5. The officer prepares the order in English and Arabic for a judge's signature.
6. The executor collects the original Probate Order, or Guardianship Order where minors are involved.
7. For Dubai assets outside the DIFC, the executor applies for enforcement at the Dubai Courts, for which there is a separate fee.
8. The Dubai Courts' enforcement department issues directions to transfer the assets.

Who it suits and who it does not

The route suits non-Muslim families whose UAE assets are covered by a will registered with the DIFC Courts, particularly where those assets sit in Dubai and the executor is willing to see the process through. Its guardianship provisions apply only to minors habitually resident with the testator, the person who made the will, in Dubai or Ras Al Khaimah.

It does not help with assets the will leaves out, or with an estate that has no DIFC will at all. For those, the DIFC Courts state that the law of the courts where the assets are located applies by default.

Costs and timelines

The application fee for a grant is AED 5,500 under the Registry's fees practice direction of 5 October 2017, and the DIFC Courts' Wills FAQ expresses it as USD 1,500. The FAQ adds that probate fees are fixed and do not rise or fall with the value of the estate.

The other published costs are these:

• a duplicate or later grant for the same person: AED 1,900, plus any applicable DIFC Courts fee
• enforcement at the Dubai Courts: a separate application fee
• Dubai Land Department transfer fees: between 0.125 per cent and 4 per cent of property value, depending on the beneficiary's relationship to the deceased
• fees for enforcement in Ras Al Khaimah: not yet determined, according to the DIFC Courts

On timing, the DIFC Courts say that in straightforward cases a grant is normally issued "within a matter of a few weeks", once the court has the information it needs. That last condition carries much of the weight. The Rules add that an executor need not distribute the estate before six months from the death unless the court directs otherwise.

What it means in practice

Return to Anna. The will she leaves is a DIFC Courts Full Will, and her estate includes an apartment in Dubai and a current account with a UAE bank.

Her brother obtains a certified death certificate, completes the forms and emails them to the probate team. Once the Case Progression Officer has confirmed the file, he attends in person to sign and lists both assets precisely. The Probate Order is issued. Because the apartment and the account sit outside the DIFC, he then applies for enforcement at the Dubai Courts, which direct the Land Department and the bank to transfer the assets to the beneficiaries. The transfer fee on the apartment will depend on who inherits it.

If he later finds a brokerage account he did not list, he must go back to the DIFC Courts for a supplementary order, and additional fees apply.

What to watch

• Accuracy of the asset list. The DIFC Courts stress that it should be as complete and accurate as possible, because an entity can refuse a transfer if the details are wrong.
• Objections. An interested person can lodge an objection, which generally lasts six months and blocks a full grant for as long as it stands.
• Rectification. An application to rectify a will, that is to correct it, must generally be made within six months of the grant.
• Fee updates. Fees are set by practice direction and can change, so the current figure is best confirmed with the Registry before applying.