Laws of inheritance

http://askimam.org/public/question_detail/29773

ESTATES AND WILLS

THE EXPENSES OF THE ESTATE

The inheritance and estate of the deceased should be allocated and executed after his or her death in the following sequence[155]:

1. Funeral expenses;

The trustees are duty-bound to ensure that the expenses of funeral are moderate. However, if they are excessive in the burial expenditures, they will be required to compensate the estate for the surplus. Similarly, voluntary additional contributions such as feeding the deceased’s family should not be paid out of the funeral expenses.

1. Clearance of debts
2. Execution of bequests. 

It is mustahab (desirable) for a person to bequeath[156] some of his wealth in the cause of Allāh.

The bequest from the deceased will be approved with the following conditions:

1.                                   I.            The bequest must not exceed one third of the wealth remaining after clearing the debts[157]. The person should ask the heirs to compensate from his inheritance any religious liability or obligation on him, i.e which is the price of half a sā` (1.592136 kilograms) of wheat for each salāh and each fast missed. However, the bequest for more than one third is suspended upon the approval of the mature heirs[158].
2.                                 II.            The bequest cannot be approved for one who is already entitled to receive inheritance unless the other heirs agree to it[159]
3.                               III.            The bequest must not for a non-Islamic cause
4. Paying the inheritors and heirs

WHAT IS INCLUDED IN THE ESTATE?

All that which the deceased owned and possessed during his or her lifetime will form part of estate. This includes, personal clothing, watches, glasses, rings, properties, businesses, vehicles etc. However, the wealth which is not recognised in Sharia and was acquired wrongfully, such as interest money, collateral, insurances and endowment policies will not form part of the estate.[160]

The following basic table can be used to determine the shares of the heirs:[161]

If a deceased has

Inheritors (in relation to the deceased)

Father

Son[s] or paternal grandson[s]

only daughter[s] or paternal granddaughter[s]

No progeny

1/6

1/6 and remaining

All or remaining

Mother

no children, no paternal grandchildren, and no more than one brother or sister

A Child, or a paternal grandchild, or 2 or more [of whichever type] brothers or sisters

only when spouse & both parents living

1/3

1/6

After first distributing it to the spouse, 1/3 will be given to mother and the remaining to father.

Husband

no children and no paternal grandchildren

any children or paternal children

1/2

1/4

Wife

no children and no paternal grandchildren

any children or paternal grandchildren

1/4

1/8

Son

daughter

Only 1 daughter and no (direct) son

2 or more daughters & no (direct) son

If any son

1/2

2/3

1/2 of son

Paternal granddaughter

No daughter and there is only 1 paternal granddaughter

No daughter and there is more than 1 paternal granddaughter

a daughter and paternal granddaughter[s]

Two or more daughters and no paternal grandson

Paternal granddaughter[s] and a paternal grandson[s]

1/2

2/3

1/6

nothing

1/2 of grandson

grandfather

Son[s] or paternal grandson[s]

only daughter[s] or paternal granddaughter[s]

No progeny

a father living

1/6

1/6 and remaining

All or remaining

nothing

Grandmother (whether maternal or paternal)

father living

1/6

nothing

Brother

a father

nothing

(Full) sister (same father and mother)

1 full sister

2 or more full sisters

Full sister[s] and direct daughters or paternal daughters

Full sister[s] and a full brother[s]

a father, or grandfather, or children, or paternal children

1/2

2/3

Remaining from daughter

1/2 of brother

nothing

Consanguine sister  (same father but different mother)

no full sister and only 1 consanguine sister

no full sister and 2 or more consanguine sisters

Consanguine sister[s] and direct daughters or paternal daughters

Consanguine sister[s] and a full sister

a father, a grandfather son[s], or paternal son[s], full brother or full sister (when asabah ma` al-ghayr)

two or more full sisters and no consanguine brother

a consanguine sister and consanguine brother

1/2

2/3

Remaining from daughter

1/6

nothing

nothing

1/2 of consanguine brother

Uterine siblings (same mother but different father)

only one uterine sibling

Two or more uterine siblings

a child, or paternal grandchild, or father, or grandfather living

Male and female uterine siblings

1/6

1/3

nothing

All will receive the same

Note. 1: The siblings will not receive any share in inheritance in the presence of any of the usūl or furū` of the deceased.

Note. 2: It must be noted that neither will a murderer inherit from who he or she murdered nor a Muslim inherit from a non-Muslim family member and vice versa[162].

N.B.: The above chart presents broadly the shares of some heirs. One cannot rely on this chart to determine the exact share of inheritance. It is necessary to contact an `Alim having expertise on laws of inheritance and succession in determing the shares of the heirs.

IMPORTANCE OF DRAWING UP A WILL IN WRITING

• If the person dies without a will, the secular law will now dictate who gets what.
• A will allows the individual to decide what happens to his or her money, property and possessions after death. 
• If a person writes an official will he or she can also ensure they do not pay more Inheritance Tax than needed.
• In the absence of such a will, the Sharia does not bind the heirs to discharge the liability of the person who dies prior to discharging his liability. However, in the case of writing up a will, the heirs will be duty-bound by Sharia to pay fidyah (compensation money) from up to one third of the complete Estate[163]. 

WHAT DO I PUT IN MY WILL

The person should include in his will:

• The names of the individuals who he or she wants to benefit from his estate
• The name of the individual who he or she wants to take care of any children under eighteen
• The name of the executor of his or her will and estate
• What should happen if the individual who he or she wants to benefit die before the person

The individuals may write a will themselves, but they should seek legal advice from a professionals, for example from Citizens Advice (See: http://www.adviceguide.org.uk/england/relationships_e/relationships_death_and_wills_e.htm ), and an Islamic scholar to ensure the will is interpreted as you would like and in accordance to the Islamic law as well as the country law.

He or she should inform the executor of the will, close friend, family member or relative where the will is stored. It is better to keep the will in a reliable and secular places such as with other important documents or with a solicitor.

LEGAL REQUIREMENTS 

However, for the will to be legally valid, the will must be formally witnessed and signed. According to the U.K law, the will should be written by a person 18 or over; made voluntarily; made by a person of sound mind; in writing; signed by the person making the will in the presence of 2 witnesses; and signed by the 2 witnesses, in the presence of the person making the will[164].

Furthermore, the person is required to sign and witness his or her will formally to make it legal. He or she must sign the will in the presence of 2 witnesses; get 2 witnesses to sign the will in his or her presence, after he or she has signed it; make sure the witnesses are aged 18 or over; and if he or she needs to make any changes to the will then the same signing and witnessing process should be followed. However you must ensure the witnesses are not from amongst those whom and their married partners you want to benefit from your will[165].

The person should update and review the Will as and when the need arises, such as when there is a change in marital status, birth in family, chang in residence, or if the executor named in the Will dies.

As for making amendments to your will, one cannot make any changes in the will after it has been signed and witnessed. However, one may make an official alteration called a codicil. The person must then sign a codicil and get it witnessed in the same way as witnessing a will.

However, if individuals want to update and amend their will, they are required to make an official alteration (called a codicil) or make a new will. The person must then sign the codicil or the new will and get it witnessed in the same way as witnessing the previous will. Also, one should destroy the old will and explain in the new will that it officially revokes all previous wills and codicils[166].

We have included a copy of the last will and testament and an appendix/ guide for the purpose of easiness. You may simply fill in all the details and keep it in a safe and secure place.

And Allah Ta’āla Knows Best

Hanif Yusuf Patel

Student Darul Iftaa

UK

Checked and Approved by,

Mufti Ebrahim Desai.

 LAST W I LL AND TESTAMENT

of 

[INSERT YOUR NAME]

[DATED: INSERT DATE HERE]

DECLARATION

I, the undersigned

[INSERT YOUR NAME]

[ADDRESS]

[PASSPORT NUMBER]

Hereby declare that this is my Last Will and Testament.

REVOCATION

I hereby revoke, cancel and annul all my previous wills, codicils and other testamentary dispositions made at any time before.

EXECUTOR

I hereby appoint the following individual[s] to execute my Will and administer my Estate:

[INSERT THE NAME OF THE FIRST EXECUTOR/ ADMINISTRATOR]

[ADDRESS]

[PASSPORT NUMBER]

[INSERT THE NAME OF THE SECOND EXECUTOR/ ADMINISTRATOR (IF ANY)]

[ADDRESS]

[PASSPORT NUMBER]

[INSERT THE NAME OF THE THIRD EXECUTOR/ ADMINISTRATOR (IF ANY)]

[ADDRESS]

[PASSPORT NUMBER]

If any of the abovementioned Executors predecease me, or die during the implementation of the Will or refuse to act, then the other Executors are authorised to act alone. However, in the event of all dying or refusing to act, the authority to appoint another Executor[s] should be conferred to a reputable Dār al-Iftā or Islamic scholar.

DECLARATION OF FAITH AND FAREWELL ADVICE

I bear witness that there is none worthy of worship but Allah and I testify that Muhammad (peace and blessings be upon him) is His servant and His Messenger.

I believe in Allah as He is with Him many names and qualities and I have accepted all His orders."

I believe in Allah, His angels, His books, His messengers, in the Day of Judgment, and that Fate good and bad is given by Allah, and the life after death.

My funeral and the allocation of my estate should be executed in accordance to the Sharia.

FUNERAL WISHES

I instruct the executors of my will, all my family members, relatives, friends and all associates to submit to the Creator and to honour my directives and requests in this will and testament and to bathe and shroud me, observe the prayer upon me and bury me in accordance to the dictates of the Sharia. I do not consent to the performance of an autopsy on my body or donate any of my organs. If an autopsy is legally required, then it should be done through an MRI scan. I wish for my cadaver to be buried as soon as possible and in the closest Muslim Cemetery. In the event of any dispute or difference in opinion, I advise you to refer the dispute to a reputable Dārul Iftā or an Islamic scholar.                               

GUARDIANSHIP

The shares and assets of inheritance accruing under this Will and Testament to a minor chid will be held by the Executor in Trust and, perhaps invested in Sharia complaint investments, and conferred to the child upon reaching the age of maturity as ascertained by Sharia. I appoint my Executors of Trustees of any such Trust. The Executors may in their discretion use the income in accordance to Sharia for maintaining, educating and for the general welfare of the beneficiary of the Trust.

I assign person to be the Guardian of my children who at my demise are under the age of eighteen. 

[INSERT THE NAME OF THE GUARDIAN (NO.1)]

[ADDRESS]

However, if the assigned Guardian is reluctant or unable to act for any reason then I assign the following to be the guardian.

[INSERT THE NAME OF THE GUARDIAN (NO.2)]

[ADDRESS]

TRUSTESS AND EXECUTORS 

I assign the following two individuals to be the Trustees and Executors of my Will:  

[INSERT THE NAME OF THE TRUSTEE AND EXECUTOR (NO.1)]

[ADDRESS]

[INSERT THE NAME OF THE TRUSTEE AND EXECUTOR (NO.2)]

[ADDRESS]

RESIDUARY ESTATE

I hereby give all the residue of my estate and property to my Trustees on trust. I instruct the Trustees and Executors of my Estate to apply the assets in my Estate, after having converted illiquid assets into liquid unless agreed otherwise by heirs, in the following order as in terms of Sharia:

1.         I.            Payment of funeral expenses
2.       II.            Fulfilment of all debts
3.     III.            Payment in accomplishment of any bequest
4.     IV.            Allocation of the residue of my Estate to my inheritor as required by Sharia

Today, dated [INSERT DATE: DAY/ MONTH/ YEAR], I am liable to compensate for the unfulfilled obligations. If I am unable to to compensate fully during my lifetime, I hereby leave a will that compensation could be paid out of my legacy. Please refer to the Last Will appendix, to observe the record of such obligations.

I instruct the Executors of my Will to determine the amount due by me in fulfilling my religious liabilities or obligations pronounced below:

Religious obligation/ liability/ donation	Amount due
What is the total of unpaid Zakat	[INSERT TOTAL AMOUNT]
How may Fasts were due and not kept	[INSERT TOTAL AMOUNT]
Was compulsory Hajj accomplished?	[INSERT YES/ NO]
How many Salah were due and unperformed?	[INSERT TOTAL AMOUNT]
If any kaffārah unfulfilled, how many?	[INSERT TOTAL AMOUNT]
Is there any Qurbānī which is undischarged?	[INSERT TOTAL AMOUNT]
Is there any impermissible income to return to the owner or donate to charity?	[INSERT TOTAL AMOUNT]
Are there any donations to any charitable organisations or causes?	[INSERT TOTAL AMOUNT AND THE NAME OF CHARITY]

Consequently, my Executors shall pay such amounts to the organisations and person who they in their absolute discretion determine as entitled to the money according to Sharia. The total amount payable in such liability, donation or obligation should not, nevertheless, be more than one third of the net value of the complete Estate after the payment of funeral expenses and debts unless to which all the heirs express their explicit consent.

I hereby instruct that the shares stipulated in this Will to a male or a female, should be excluded from the community of property between existing or potential spouses and should actually be given to the male or female themselves and should become his or her absolute, sole and exclusive property.

TRUST FUND

I hereby instruct that my Executors have regard to Islamic principles of investment. The Executors will not be necessitated to lodge security, insure any part of the Trust Fund or be liable for the consequences of their due performance of their duties or not insuring the Trust Fund.

The Trustees will keep the Trust Fund on Trust absolutely and thus they will determine the distribution, interpretation and application of the Trust Fund in their absolute discretion as long as it does not contravene the Sharia and the law of the respective country.

I approve the application, with the exception of paragraph 5 and the amendment to paragraph 6, of the standard provisions of the Society of Trust and Estate Practitioners (1st Edition) in a way that the Trustees possess the same additional powers regarding the application of capital as they possess with regard to the application of income.

I hereby dictate that neither Section 33 Wills Act 1837 nor Section 11 & 22 Trusts of Land and Appointment of Trustees Act 1996 should relate to this Will and Testament.

DISPUTE

If my bequest or any other wish contained within this Will contradicts the Islamic law, or if there is any disagreement in regard to the Will, including the interpretation, administration or distribution of it; then I confer the power of amending the bequest and of resolving the issue in accordance to Islamic law to any competent Dārul Iftā or a Muftī whose decision will be conclusive and binding.

ANY ADDITIONAL COMMENTS

ACKNOWLEDGEMNET

I,

[INSERT YOUR NAME]

hereby declare this to be my Last Will and Testament in the presence of the witnesses. I hereunder sign this on:

[INSERT THE DATE: DAY/ MONTH/ YEAR]

Signature: [SIGN YOUR NAME]

We confirm that this Last Will is signed by and agreed by the person mentioned above.

[INSERT THE SIGNATURE OF THE WITNESS (NO.1)]

[NAME]

[ADDRESS]

[OCCUPATION]

[INSERT THE SIGNATURE OF THE WITNESS (NO.2)]

[NAME]

[ADDRESS]

[OCCUPATION]

LAST WILL AND TESTAMENT (APPENDIX)

Guide to the executor and the heirs

The information recorded here below is for the guidance of the executor of my will in correctly discharging my obligations which I may not have completely fulfilled.

Last Name
First Name
Address
First to Kin
Contact Details

N.B: The individual must note that the amount paid in fidyah, zakāh, penalty and other bequests cannot exceed one third of the estate after payment of funeral expenses and debts. However, it is at the discretion of the heirs to unanimously allow more than one third of the estate to be relinquished in settling oval fidyah cost.

Unperformed Salah

The fardh and wājib salāh need to be compensated for. The individual must record an estimate and an approximate number of Saāh missed from the time of attaining maturity. He/ she should then try utmost best to redeem them and update the chart given below regularly as they are performed.

Date (last reviewed):
Salāh	Number outstanding
Fajr
Zuhr
Asr
Maghrib
Isha
Witr Wājib

I entrust the executor of my will to pay fidyah (the amount of compensation which will be verified by the ulamā at that time) out of my estate for every outstanding salāh.

The individual must note that the amount paid in fidyah cannot exceed one third of the estate after payment of funeral expenses and debts. However, it is at the discretion of the heirs to unanimously allow more than one third of the estate to be relinquished in settling oval fidyah cost.

Unpaid Zakat and Sadaqah al-Fitr

A Muslim is liable to pay zakāh once he or she owns the nisāb

The individual must make a calculation of, record, and attempt to as soon as possible to pay any unpaid zakāh.

I entrust the executor of my will to pay fidyah (the amount of compensation which will be verified by the ulamā at that time) out of my estate for the amount unpaid

Again, the individual must note that the amount paid in fidyah cannot exceed one third of the estate after payment of funeral expenses and debts. However, it is at the discretion of the heirs to unanimously allow more than one third of the estate to be relinquished in settling oval fidyah cost.

Record of Zakāh

Year	Amount payable	Paid	Date paid

Record of unpaid Zakāh

Date (last reviewed)
Total Outstanding zakāh	Amount Paid	Amount Due	Date of payment	Signature
Total Outstanding Sadaqah al-Fitr	Amount Paid	Amount Due	Date of payment	Signature

UNKEPT FAST

The fardh and wājib fasts need to be compensated for. The individual must record and calculate all outstanding fasts missed from the time of attaining maturity including those missed due to legitimate reasons at the time e.g. due to travel, illness or menstruation. He/ she should then try utmost best to redeem them and update the chart regularly as they are performed. If however the individual us unable to fulfil this obligation due to frailty or protracted illness and there is no hope of regaining health, fidyah must be paid.

Record for outstanding fasts:

Date (last reviewed):
Number of outstanding fasts	Number of fasts redeemed	Number of fasts still Due	Date	Sign

I entrust the executor of my will to pay fidyah (the amount of compensation which will be verified by the ulamā at that time) out of my estate for every outstanding fast.

Once again, the individual must note that the amount paid in fidyah cannot exceed one third of the estate after payment of funeral expenses and debts. However, it is at the discretion of the heirs to unanimously allow more than one third of the estate to be relinquished in settling oval fidyah cost.

UNPERFORMED HAJJ

Hajjis compulsory on every sane Muslim who is able to reach and return from Makkah and once all requisites are present.  Haj must be performed at the first available opportunity.

Due to old age or sickness, with no hope of regaining health, a proxy may be arranged to perform this obligation on his behalf.

For the benefit of the executor, please note whether the Hajj has become compulsory and if accomplished

Is Hajj compulsory upon you? (you may refer to an ālim to assess your situation)	Have you accomplished the Hajj compulsory upon you	Date Hajj performed

UNPERFORMED QURBANI

In the event of any outstanding Qurbānī, the individual must note the years and calculate the price of the animal in each of those years and give away the total in Sadaqah. This amount is to be updated as payments are made.

Date (last reviewed):
Years of outstanding Qurbānī	Total Cost Due	Payments made	Amount still due	Date	Sign

Other obligations

The individual must fulfil the oaths he or she undertakes. In the event of breaking an oath, the individual must pay kaffārah (penalty). An oath (yamīn) is where a person makes a permissible act compulsory upon himself e.g. a person takes an oath to abstain from halāl food; or a person promises to perform a voluntary act on the fulfilment of a wish.

The kaffārah (penalty) for breaking an oath is to feed or clothe 10 poor people or if unable, to fast for three days.

Outstanding oaths	Is the oath upheld or not broken?	Is the penalty paid or not?	Date fulfilled

Trust

The following is a list of Trusts in my possession and their owners

Items entrusted to me	From whom	Date received	Date returned	Signature

Other information which may assist the executor[s] and the heirs

RECORD OF LIABILITIES

RECORD OF ASSETS

N.B: The individual must note that the amount paid in fidyah, zakāh, penalty and other bequests cannot exceed one third of the estate after payment of funeral expenses and debts. However, it is at the discretion of the heirs to unanimously allow more than one third of the estate to be relinquished in settling oval fidyah cost. Please note that the kaffārah (fidyah) for each missed salāh and fast is the price of half a sā` (1.592136 kilograms) of wheat.

http://islamqa.org/hanafi/daruliftaa/7946

I hope you can help me with an ongoing inheritance issue within our family. My father passed away 4 years ago. He left behind a wife (our mother), 2 sons and 3 daughters. His estate includes bank accounts, properties and cash.

My father did not leave an Islamic Will. My mother and my youngest sister who handles all the family affairs have chosen to have the estate distributed according to British law. We received letters from my mother’s solicitors stating that she will be receiving the majority of the estate. This decision my mother and sister have made only refers to my late father’s accounts, and does not include any mention of property that my father owned abroad or in the UK, plus rental money from a property that has accumulated over the years. They have taken full control of these assets through the solicitors, and are depriving me, my brother and my other two sisters of their full share of inheritance.

What Islamic rights do we have? I do not want my mother to do wrong as she is clearly influenced by my sister. I also do not want my late father to suffer in anyway. All I want is to let everyone have their right according to Shari’ah, and for all of this to be dealt with in an Islamic manner. Can you please give me the Islamic Shari’ah ruling regarding this issue, and what rights do we have?

ANSWER

In the name of Allah, Most Compassionate, Most Merciful,

Islamic law of estate-distribution is different from British law. As such, every Muslim is duty-bound to prepare and leave a Will that is in accordance with Islamic guidelines in order that the estate can be distributed according to Islamic law and also be recognized by British law.

The Qur’an mentions in great detail the fixed-shares of those who inherit the estate from the deceased. Failure to distribute the estate according to these guidelines set in the Qur’an constitutes a great sin and punishment from Allah Most High.

After mentioning these laws of estate-distribution/inheritance, Allah Most High says in the Qur’an:

“These are the limits set by Allah; and whoever obeys Allah and His Messenger, He will admit them into gardens beneath which rivers flow, remaining therein forever. And that is great success. And whoever disobeys Allah and His Messenger [in distributing inheritance] and crosses the limits set by Him, He shall admit them into the fire, remaining therein forever. And for them there is a humiliating punishment.” (Surah al-Nisa’, V: 12-13)

As such, it is extremely important for a Muslim to leave a Will that is in accordance with Islamic guidelines, especially in a country where not leaving such a Will results in the estate being distributed in a non-Islamic manner. If someone dies without leaving an Islamic Will, as your father did in this case, then it becomes necessary upon all the heirs/inheritors (wuratha) of the deceased to ensure that the estate is distributed according to Islamic guidelines; otherwise it will amount to a grave sin in the sight of Allah Almighty. There are severe warnings of punishment mentioned in the sacred Islamic texts for not distributing the estate according to Islamic law.

Sayyiduna Anas ibn Malik (may Allah be pleased with him) relates that the Messenger of Allah (Allah bless him & give him peace) said: “Whoever deprives an heir of his/her inheritance-share [as fixed by Qur’anic guidelines], Allah will deprive him/her of Paradise on the day of judgement.” (Sunan Ibn Majah, no: 2703)

Note that one will not be guilty of breaking the law of the land when distributing the estate according to Islamic guidelines, since the law does not force anyone to have the estate distributed in any particular manner. The heirs are free to distribute in any particular manner, as long as it is mutually agreed, and as such, British law allows Muslims to mutually agree on distribution based on Islamic guidelines.

However, if one or some family members do not wish to have the estate distributed in accordance with Islamic guidelines, such as your mother and sister in this case, then, unfortunately others can not do anything if no Islamic Will was left by the deceased (i.e. your father). The most you can do is encourage them to distribute the estate according to Islamic guidelines and remind them of the dire consequences and displeasure of Allah in the next life (akhira). They should be reminded that they will be accountable to Allah, and each and every penny that they receive in excess of their entitlement will have to be paid back in the next life. For a practising Muslim, this is an extremely serious matter which must not be taken lightly. Indeed, if one is not a proper/practising Muslim, he/she will go ahead and have the estate distributed in a non-Islamic manner.

In regards to your specific situation, the Islamic law of inheritance is as follows:

All the wealth left behind by your late father (may Allah have mercy on him) at the time of his death, which includes everything he owned, such as cash, gold, silver, properties, all chattels, all contents; hence every big and small item that belonged to him at the time of his death will be totalled and termed as the “estate (taraka)”.

From this, after taking out burial expenses, if there are any debts owed to fellow human beings, they must be paid off. Since your father did not make any bequest (wasiyya), the remaining amount will be distributed amongst the various heirs. Your mother (wife of the deceased) will be entitled to one eighth of the total and the remaining seven parts will be distributed between the sons and daughters of the deceased with the sons receiving twofold of the daughter’s share in accordance with the Qur’anic verse:

“As regards your children’s (inheritance): to the male a portion of that of two females.” (Surah al-Nisa, V: 11)

Hence, the breakdown of the distribution is as follows:

Wife: 12.5%
Son 1: 25%
Son 2: 25%
Daughter 1: 12.5%
Daughter 2: 12.5%
Daughter 3: 12.5%

If all the heirs wish to distribute the estate in a different manner, then, Islamically, they are at liberty to do so. However, this must be mutually agreed, and without any force or pressure applied on any one individual.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK


http://www.daruliftaa.com/node/5851

<QUESTION>

Can you please provide me with general guidelines that would help me prepare my last Will and testament according to Islamic law?

<ANSWER>

In the name of Allah, Most Compassionate, Most Merciful,

Writing and preparing a Will is undoubtedly very important, especially in non-Muslim countries, insuring that upon death, one’s wealth and assets are distributed according to Shariah.

There are a number of Islamic texts, both in the Qur’an and Sunnah, which point to the importance of Will-making, for example:

Sayyiduna Abd Allah ibn Umar (Allah be pleased with them both) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “It is not befitting for a Muslim who has something to make a Will of, to remain for two nights without having one’s last Will and testament written and kept ready with one.” (Sahih al-Bukhari, no: 2587) 

The narrator of this Hadith (Abd Allah ibn Umar ibn al-Khattab) stated after hearing this from the Messenger of Allah (Allah bless him & give him peace):

“I did not let even one night pass by except that my Will would be kept by me.” (Musnad Ahmad, 2/4)

Making a Will becomes even more important in non-Muslim countries, such as the United Kingdom and US. The reason being is that, failing to leave a valid written Will can result in the law of the land deciding on how your estate is to be distributed, which obviously will not be in accordance with Shariah (Islamic law).

Therefore, it is essential that all Muslims leave a valid written Will. Those who have, as yet, not made a Will should haste and prepare a Will. Writing a Will is not only for old people, rather all those who have reached puberty should quickly get their Will prepared, for there is no guarantee of when one will die.

Below are simple and brief guidelines with regards to preparing and writing a Will in the West:

The first and foremost aspect worth noticing here is that many Muslims are mistaken in believing that, writing a Will means distributing one’s wealth and estate amongst the inheritors during one’s lifetime.

This is incorrect, as making a Will does not mean one must divide one’s wealth amongst the various inheritors in one’s life; rather, one must merely stipulate in the Will that “upon my death, my executors will distribute my wealth according to Shariah”. One may also state that this will be determined by a local Muslim scholar or Mufti, who will be contacted and appointed by my executors upon my death.

The reason behind this is that the inheritance portions have been determined and allotted by Allah Most High in the Qur’an. These portions vary according to who is alive at the time of one’s death. Death with leaving parents behind will differ from passing away after the parents have passed away, in that the inheritance portions will be different in both cases. 

As such, one cannot determine in one’s lifetime as to how much percentage of one’s wealth will be exactly allocated to each individual, for one is unaware who will be alive at the time of one’s death. Even the death of one person can make a big difference in the division and distribution of the estate.

The beauty of Shariah is its simplicity and certainty. When you are writing your Islamic Will, you do not have to try and figure out which of your relatives will still be alive when you die in order to make sure that they will receive something. Whoever administers your estate will ascertain (in collaboration with a knowledgeable scholar) which of your relatives are still alive and what fixed shares they are automatically entitled to inherit by applying the criteria of Shariah.

Moreover, it is unlawful and invalid to make a bequest (Wasiyya) in favour of an individual who automatically is entitled to receiving a share of the estate, such as one’s spouse, children and parents, etc. The Messenger of Allah (Allah bless him & give him peace) said in his historic sermon (khutba) of his farewell hajj (haj al-Wada’): “Verily Allah has given each rightful person their right, thus there is no bequest in favour of a inheritor.” (Sunan Tirmidhi, no: 2120, narrated by Sayyiduna Abu Umama al-Bahili)

The meaning of this Hadith is that Allah Almighty has already fixed and allotted the shares of those who are entitled to inherit from one’s estate. As such, if one was to make a Will in their favour, one will be going against the shares fixed for them in the Qur’an and Sunnah. 

However, if one wished to make a bequest/Will for a non-relative, or for a charity, then this would be allowed (and rewarded), but only up to a third of one’s total wealth. The remaining two thirds will be left to be distributed amongst the relatives according to the fixed shares prescribed by Allah Most High. If one does not make a bequest of up to one third of the estate, then all of the estate will be divided between the surviving relatives. The Messenger of Allah (Allah bless him & give him peace) forbade from making a bequest of giving one’s wealth in charity which is more than one third, and regarding a third also, he stated: “And a third is also more (although permissible)”. (Sunan Tirmidhi, no: 2116)

The second point to remember here, which is very important, is that one must distinguish between a bequest/Will (wasiyya) and a gift (hiba). Many people fail to differentiate between the two, thus a grave error is committed.

What a person gives to another in one’s lifetime is considered a “gift” whilst attributing the giving of something after one’s death is a “bequest or Will (Wasiyya)”. For example, if I give my house to a friend whilst I am alive, then that will be a gift, but if I was to say that my friend will take ownership of my house after I pass away, then that is a bequest. 

At times, one would like to distribute one’s estate amongst the children whilst one is alive. This will be valid provided it is given as a gift and not a bequest, because to make a bequest (or Will) for a relative who already qualifies to inherit is invalid, as mentioned previously. As such, if one desires to distribute the estate amongst the children whilst one is alive, then it does not have to be in accordance with the Shariah laws of inheritance, for it is merely a gift. 

However, the question arises as to whether it is necessary to distribute the estate equally between the children? The answer to this is that it is permissible to give the male children twofold of that given to the female children, as it would have been distributed as inheritance. It is also permissible to give all the children, male and female, equal shares. However, to give less than this to the daughters or to completely deprive them of any share, or to be unjust in the distribution of the wealth among the sons, without a valid Shar’i reason, is considered to be blameworthy and sinful. One will be sinful for favouring one child over the other, although the gift will stand as valid.

Yes, if there is an Islamically valid reason, such as one child being extremely disobedient or involved in open sinning, it would be permitted to give him/her less. (See: Radd al-Muhtar)

A point worth noting here is that Islamically a gift is only valid and complete when the one to whom the gift is given, takes full ownership and possession of the item. Merely, registering it on one’s name is of no consequence in Shariah, hence the gift will be considered invalid.

The possession in houses and properties will be established by the giving of keys, removing of furniture, and leaving no obstacles for the one whom the gift is given to come and reside in the property. Many times it is observed that the father only verbally says that this is your house, but he himself resides in the house and it is considered to be his. This will not be a valid gift. A gift is such that if the son was to say to the father: you must move out, he moves out without any hesitation, and it is completely understood to be the son’s house.

Thirdly, there is the issue of the husband and wife. If the house is solely owned by the husband, then upon his death, it would be distributed among all the inheritors. Many times it is observed that years pass by after the husband’s death and the inheritance is not distributed. The deceased’s wife and some children keep residing in the house without even thinking about distributing it. This is a grave sin committed by all those who overlook this great injunction of Shariah.

If the house was jointly owned by the couple, then in the event of one of the spouse’s death, half of the house will remain in the ownership of the other spouse, and the remaining half will be distributed. Thus, it would be wise for the couple to have joint ownership of the house. This also should be made clear to all the children, for being negligent in this regard brings about disputes and problems.

Note that if the inheritors give their consent in their mother or father residing in the house, then this is permissible. However, what is necessary is that the shares are distributed, and then they may give their consent in allowing their mother or father to reside. However, one must be extremely precautious here, for all the inheritors must consent to this from their heart and must not be pressurised into it. If even one inheritor disagrees, his/her share will have to be given to him/her.

The fourth point to note with regards to inheritance is that at times the deceased makes a unlawful and invalid bequest, such as saying that, my eldest son will take such and such property, the other such and such, my daughter will take the house, etc.

In this case, it will be unlawful (Haram) and a grave sin for the relatives to distribute the inheritance according to the bequest made by the deceased. The estate must be distributed in accordance with the Qur’an and Sunnah.

Finally, one must make sure that one’s Will meets the requirements of the law of the land, for failing to do this may well render one’s Will invalid. So in order to ensure that one’s assets are distributed in accordance with the Shariah after one’s death, one must write a Will, and that “Will” must comply with the requirements of the country one is residing in. Therefore, it is advisable that one seeks the advice of an expert practicing Muslim solicitor.

Having understood the above general guidelines regarding Will-making, let us now look at how an Islamic Will is written. Normally when making a Will, one would stipulate the following: 

1) Revoking of all previous Wills.

2) Naming the executors of the Will.

3) Payment of funeral and burial expenses.

4) Payment of all debts connected to the servants of Allah: After one’s death, paying off one’s debts is given primary consideration. Thus, one’s leftover wealth will first be utilized in repaying the debts, and then the remainder, if any, will be distributed amongst the inheritors according to the Shariah. Note that this is with regards to debts payable to the servants of Allah (and not with regards to liabilities due by Shariah, such as unpaid Zakat, etc). Also, there is no condition here of it being from only one third of one’s wealth.

5) Payment of any bequest (Wasiyya): This refers to any religious liabilities, such as unpaid Zakat, Fidya for Salat, etc, and also anything that one would like to give in charity. However, the condition here is that this is only permissible from one third of one’s wealth.

It is worth remembering here that along with one’s written Will, one should have a separate document stipulating the number of unperformed prayers, missed fasts, unpaid Zakat, unperformed Hajj, any other religious obligations and debts payable to the servants of Allah. 

One must strive in accomplishing these obligations in one’s life, and make the necessary amendments to the document whenever an obligation is fulfilled. For example: One had 500 unperformed prayers. In such a case one should stipulate this in the document. Thereafter, whenever, a prayer is made up, it should be deducted from the total of 500. This “important” document should be attached with the Will in order to let the relatives know of one’s obligations and liabilities after one’s death.

6) Distribution of the remaining two thirds of one’s estate (or full, if one does not include no. 5) among the inheritors in accordance with Sunni Islamic law, and in consultation with a qualified local scholar or Mufti.

7) Signing of the document by both the Will-maker and the relevant witnesses.

Finally, the responsibility of the relatives is that they haste in distributing the estate of the deceased as quick as humanely possible. Being negligent in this regard will be highly sinful. All the inheritors will be jointly responsible for this distribution. 

Also, when totalling the deceased’s assets, the inheritors must include every big and small item left behind by the deceased at the time he/she passed away, which includes Properties, house, car, financial instruments, cash, gold, silver, clothes, furniture, etc. 

At times, people overlook small items and give them away in charity without the prior consent of all the inheritors, which is unlawful (haram). The permission and full consent of all the inheritors must be sought before giving away any item to anybody.

I hope the above has been helpful in simplifying the laws governing the great responsibility of Will-making and inheritance. May Allah Almighty forgive our shortcomings and keep us steadfast on his Deen, Ameen. 

And Allah knows best.

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

Can All of One's Wealth be Left to Spouse Upon Death? 

Question #: 5061 

Date Posted: 24-11-2004 

<QUESTION>

Please advise how to write a Will for an older couple who have cash saved for retirement, and their children are well settled? They would want the other to have all their money when one dies. 

Do the Inheritance Laws of Shariah apply in this case? Or only apply when both of them or the latter dies? They want the other spouse not to be dependent on the kids, when one of them dies

<ANSWER>

In the name of Allah, Most Compassionate, Most Merciful,

It should always be remembered that making a Will does not mean dividing and calculating one’s wealth and estate amongst the various inheritors. Preparing a Will merely means to stipulate that upon death, the executors will distribute the wealth according to the guidelines of Shariah.

The reason behind this is that the inheritance portions have been determined and allotted by Allah Most High in the Qur’an. As such, one cannot determine in one’s lifetime as to how much percentage of one’s wealth will be exactly allocated to each individual, for one is unaware who will be alive at the time of one’s death. Even the death of one person can make a big difference in the division and distribution of the estate. 

According to the rules of inheritance, the estate and wealth of the deceased will be distributed amongst his/her spouse, children and parents (if they are alive). It will not be permitted to give all the leftover wealth to the surviving spouse without proper and full consent of all the remaining inheritors. The children of the deceased are also entitled to their portion of inheritance; hence it will not be permitted for the surviving spouse to inherit all the wealth.

What the couple can do is that they may have joint ownership of everything they own. The house they reside in, other properties and all the cash should be considered in the joint ownership of both the spouses. Then, in the event of one’s death, the surviving spouse will retain his/her ownership of half of the total wealth, and also inherit his/her share of the remaining half along with the other inheritors. In this way, the surviving spouse will be able to have a larger share after the spouse’s death

It should also be remembered that the children (and anyone else who qualifies to inherit) may relinquish their right, and consent to their parent taking ownership of all the leftover wealth. However, this is something that is purely optional on their part; hence they should not be forced into accepting this. Each and every individual who is entitled to his/her share of inheritance must consent willingly to relinquish his/her right. At times, people are forced into giving up their right of inheritance, which is clearly wrong and sinful.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK