Transferring inheritance to children in one's lifetime

http://seekershub.org/ans-blog/2013/05/07/transferring-property-to-children-in-ones-lifetime/

Question: My parents own a home. They would like to transfer the entire home to me, their only son. However, I am close to my sisters and feel it is best if the home is transferred to all 3 of us.

According to Islamic law, what is the distribution or allocation method for this property to all 3 of us (my 2 sisters and myself)? Also why is it not equal distribution, so 1/3rd each?

So, for example, if the value of the property is £300,000, if £100,000 is not allocated to each of us 3 children, then by what proportion is the allocation made?

Also, what happens in the event of sale of the property — how are the proceeds supposed to be distributed among the 3 of us?

I also don’t understand if women have equal rights in Islam, why isn’t the allocation fair and equal — why less for women? Is it because they are likely to get married, and therefore take a share of their husband’s property or savings?

Answer:

Bequests

To begin, it is important to understand the difference between a bequest (wasiyah) and a transfer of wealth (hadiya or ‘atiyya). A bequest is where a person says, “Upon my death, give such and such amount to so and so.” Once the person passes away, there is an assessment to ensure that no debts are owed, that the total bequests do not exceed one third of the deceased person’s total wealth, and then to see if that person is a suitable recipient.

One of the matters that would cause a person to not be able to receive a bequest is if they are an inheritor, such as a spouse or child. The Messenger of Allah (peace and blessings be upon him said), “There is no bequest to an inheritor” (Tirmidhi). So, if a person is guaranteed a portion of the inheritance, such as a son or a daughter, they would not be able to receive a bequest. Again, a bequest is the transfer of wealth after the death of a person and it comes from their estate.

Transfers of wealth

While a person is alive and not on their death bed, technically they are free to give away any portion of their wealth to whoever they would like. Once a person is on their death bed, they are no longer allowed to give away their wealth since that is akin to giving away the right of the inheritors. So, if a person’s parents are not on their death bed, they can give their wealth to one child over the other.

The Sunna in Giving

Although this is their right, it would be sunna for them to be equal in their distribution of wealth as the Messenger of Allah (peace and blessings be upon him) said, “Treat your children equally,treat your children equally, treat your children equally! ” (Ahmed and others). The Messenger of Allah (peace and blessings be upon him) also said, “Be equal in gifts to your children, and if I were to give more to one I would have chosen the women” (Bayhaqi and Tabarani).

Equal Rights in Islam

In regards to your question about equal rights for women and why they receive a lower share than men, one must understand that there are only certain situations where a woman would get less than a man. If the deceased left only one son and one daughter, for example, then the son would have two shares of the wealth and the daughter would have one.

One of the wisdom in this can be seen when we realize that financial obligations of a family are upon the man and not the woman. So, the son will take his two shares and support his wife and children whereas the daughters will take her one share and does not have to spend it on her husband and children. Another thing to realize is that there are situations where a woman would get more than the men, such as in the case where the deceased left a daughter and his brothers (the daughter’s paternal uncles). The daughter would get one half of the wealth and the brothers, no matter how many would split the remainder.

Your situation

Your parents have the right to give you their house without including the daughters. If it will not anger you parents, you can suggest that they distribute it to you and your sisters. If they do not agree, then what you can do is then give a portion of your wealth to your sisters once the wealth is yours unless your parents had stipulated that you do not give the house to anyone.

I would suggest that you contact a local scholar to help you work through your situation and do not rely on this reply alone. There are other opinions in the books of fiqh and your situation is a complex one dealing with inheritance, gifts and rights of parents (birr al walidayn).

And Allah knows best.

http://seekershub.org/ans-blog/2016/02/22/12969/

Question: Assalam alaikum,

My family lives with my parent in the main family home. Can we remain there following the death of the parent, and only sell it when we want? Do we have to immediately give out the shares to the rest of the inheritors?

Can the parent give the house to a single inheritor?

Answer: Assalāmu ʿalaykum,

I hope you and your family are doing well.

Promptly Apportioning the Estate of the Deceased

Generally speaking, one should strive to properly apportion the estate as soon as possible after the deceased person’s death. This is because as soon as a person passes away, their wealth transfers from their own to that of the inheritors.

Problems arising from not Immediately Apportioning Property

Aside from being sinful, failing to do so leads to irreparable broken feelings between the inheritors: those who have held on to the estate unlawfully, and those who have had their financial rights withheld from them.

It also leads to problems related to the legal inheritors, such as some of the inheritors themselves passing away, or other inheritors being added to the picture, such as children. This further complicates the inheritance division, to the extent that people often choose to simply never apportion it once it has reached this intractable stage.

Dividing the Estate based on Divine Law

One must also apportion the estate in a manner prescribed by law, and not try to lay claim to a larger portion than they have lawful claim to, for whatever reason they may find compelling. The Qur’an, knowing that people often fail to do so, says: “Do not covet what God has given to some of you more than others” [Qur’an, 4.32], in the context of dealing fairly with inheritance and monetary rights.

Can I Stay in my Parent’s House Following their Death?

Following a person’s death, as indicated above, their estate, including their house, effectively transfers from their property to that of their inheritors.

Those who are currently living in the house simply do not have any greater legal right to the property than the rest of the inheritors. The house, even if they are living in it, is not their property.
This is the case even if those living in the house are not of financial means. That is because the financial state of an inheritor(s) has nothing to do with how much of an inheritance share they can lay claim to.

What Should Happen to the Family Home?

The concept of a main family home is not a recognized legal concept. It is considered property like the rest of the estate. It cannot be held on to against the wishes of the other inheritors by virtue of it being ‘the family home’.

The rest of the inheritors are immediately legally entitled to their share of the estate, including the home. This is often most effectively accomplished by the property being sold and divided up amongst the inheritors.

Any other solution amicable to all of those who have a legal right to a share is also possible, such as one inheritor taking the property and compensating the rest in an agreed upon manner, immediately or over a period.

If all of the other inheritors do not agree, they are, by default, immediately legally entitled to their share.

Can a Person Decide what Happens to their Property after their Death?

A person’s wishes over who receives part of their estate after their death is not legally recognized. The estate as a whole is divided up, and each inheritor can do as they please with it. The wishes of the deceased are immaterial.

Can Parents Transfer the Estate to a Single Inheritor?

Transferring significant parts of the estate to a single inheritor by a parent, in an attempt to prevent the rest of the inheritors from their share, is disliked. According to some scholars, simply giving gifts exclusively to some children over others, without just cause, is impermissible.

The Prophet, peace and blessings of God be upon him, was asked to witness a person’s gift to only one of his sons. He refused to do so, calling it injustice, saying, “Fear Allah and be fair to all of your children”[Bukhari, Muslim].

Aside from its legal designation, transferring significant parts of the estate to a single inheritor with the intention of preventing the others from inheriting is blameworthy and extremely destructive behavior, possibly leading to the rest of the inheritors resenting the parents, even after their death, for effectively cutting them out of the inheritance.

Conclusion

The most amicable solution in such matters is to promptly apportion the estate upon the deceased’s death according to the shares set out in the law.

Wassalam,
Shuaib Ally



http://seekershub.org/ans-blog/2010/12/07/estate-division-and-the-sunna-of-equal-treatment-of-children-in-gift-giving/

Question: Assalam Alaikum warahmatulla
One of my friend’s Dad is considering passing down his properties that he bought over his lifetime.  He has 3 sons and 1 daughter.

He has 4 houses, including the one he lives in.  He planned to just give one each to each sibling, but the question is who gets which one?  Some are very expensive and in good locations, and others are not.

What is a fair way to handle this?  Should he sell them and give the profits (two houses hold family memories, some of the are attached to them) or make them joint owners, what is the sharan answer (hanafi) – or is it ok to give what he wants to whoever – does he have to be fair?

JazakumAllah Khair

Answer: Assalamu alaikum wa rahmatullah,

I pray this finds you in the best of health and faith.

If the father intends on making a bequest for the children in his will for a certain portion of the estate to be divided after death, then that would not be allowed unless all the heirs agreed to it after his demise. [Maydani, Lubab fi Sharh al-Kitab]

If the father plans on dividing the estate while alive, as gifts to the children, then the answer is based on the issue of equality to children in gifts.

Equality in Gifts to Children

According to the Hanafi school of law, the father should divide gifts equally among all children, both sons and daughters. In general, it is disliked to prefer some children over others in gifts, as that leads to mutual discord, while equality in gifts leads to harmony and increased love. [Ibn Nujaym, Bahr al-Raiq; Sarakhsi, Mabsut; Kasani, Bada’i al-Sana’i]

This is based on the general Qur’anic prescription of fairness, justice, and good treatment, such as in the verse, “Verily, Allah commands to justice, doing good, and giving to kinsfolk” [16:90].

This virtue is reinforced by the Noble Prophetic Sunna, as indicated in various hadiths. It is narrated that the Beloved Messenger [peace and blessings be upon him] stated, “Be fair and just among your children,” and in some narrations with the addition “with respects to gifts” [Sahih Bukhari].

It is also narrated by the Companion Nu’man ibn Bashir that his father took him to the Prophet [peace and blessings be upon him] and said that he had gifted his son [Nu’man] a gift, to which the Prophet replied, “Did you give the like of it to all your children?” The father said, “No,” to which the Prophet replied, “Then take it back,” and in another narration, “Then fear Allah and be fair with respect to your children,” after which the father took the gift back. [Bukhari, Muslim]

An Exception to This Ruling

An exception, however, is if there is a legitimate reason to give financial preference to one child, whether son or daughter, in which case doing so is not disliked. Some examples are if a particular child has a greater financial need, a medical condition, or more dependents. [Laknawi, Ta’liq Mumajjad Sharh Muwatta’ Muhammad; Ibn Nujaym, Bahr al-Raiq]

There are several examples of Companions preferring certain children over others with gifts, which are understood to be due to particular legitimate reasons. Abu Bakr preferred his daughter Aisha with certain gifts, Umar ibn al-Khattab did the same with his son ‘Asim, and Abdur Rahman ibn Awf with the son of Umm Kulthum, may Allah be well-pleased with them all. [Qari, Mirqat al-Mafatih Sharh Mishkat al-Masabih]

Summary
To summarize then, with respect to your question, the father should follow the Sunna of equal treatment of children, particularly with regards to financial issues such as gifts. He should come up with the most ideal way to divide the homes equally among the children, in a way that leads to increased love and harmony in the family. However, an exception would be if he had a legitimate reason to prefer one or some children over others, in which case doing so would not be disliked. Without a legitimate reason, however, unequal apportionment of gifts could be sinful, such as if he intended harm to any of his children.

Lastly, it would be best for the father in question to consult a pious scholar and seek counsel before dividing up the estate.

And Allah alone gives success.

wassalam
Faraz A. Khan

Checked & Approved by Faraz Rabbani