Source: The Muslim Times
By Dr. Lutf ur Rehman, Nashville, TN
After the death of a person, his belongings are left as his estate, which is passed on to his surviving family members in some way. Different religions and governments have their own rules and regulations regarding this matter. In the Old Testament (Torah) it is said, “Therefore, tell the Israelites; if a man dies without leaving a son, you shall let his heritage pass on to his daughter; if he has no daughter, you shall give his heritage to his brothers; if he has no brothers, you shall give his heritage to his father’s brothers; if his father had no brothers, you shall give his heritage to his nearest relative in his clan who shall then take possession of it.” (Numbers 27, 8-11)
Many people die without having made a will. To deal with this situation, most countries have their own laws of inheritance that apply in the absence of a will of the deceased. In the USA, each state has its own laws. For example, here is a small sample from the laws of inheritance in the state of New York.
The decedent’s will names the beneficiaries and the property which is distributed as inheritance. However, when there is no valid will, New York’s laws of intestate succession determine who will inherit from the decedent. Not all states follow the same procedure or percentage of distribution. According to the laws of New York Estate, Powers, Trust Section 4.1-1, a surviving spouse with no issue (child, grandchild and great-grandchild) would receive 100 percent of the estate. However, if the decedent had children, grandchildren, or great-grandchildren, the spouse would receive one-half of the estate in addition to a monetary sum, and the issue(s) receive the remainder of the estate.
If there is no surviving spouse, the order of inheritance in New York descends to children, parents, siblings (whether full or half), grandparents, uncles and aunts, grandchildren of the decedent’s grandparents, and great-grandchildren of the decedent’s grandparents. If the decedent leaves no surviving relatives, New York State claims the estate’s assets.
The matter of inheritance falls in the area of Family Law. An increasing number of governments around the world are allowing their citizens to decide these matters according to their own preferences and beliefs. Any Muslim is free to make his will according to the principals of Islam.
The Quran is a complete guidance for the Muslims. In the area of inheritance, it has given us principals that allow us to distribute the estate of a person upon his death in an equitable and just manner. Allah says in the Holy Quran, “For men there is a portion in the estate of their deceased parents and close family, and for women there is a share in the estate of their deceased parents and close family, may it be little or plenty. It is defined inheritance.” (4:8). The shares of the surviving family members have been fixed in a determined order of succession. This makes it clear and simple to divide the estate. Of course, there are some areas that need some clarification. The Holy Prophet (saw) has advised Muslims to learn the principles of inheritance. “Learn the knowledge related to inheritance (Ilm-al-Faraidh) and teach it to others, as this constitutes half of all knowledge.” (Sunan Ibn Majah)
Making a Will: In the Holy Quran, Allah says, “When death approaches one of you, it is your duty to make a Will for parents and close family members in the matter of your estate, fairly. This is an obligation for the righteous.” (2:181) A person making a Will should have something of value about which he is writing the Will. He should be of sound mind and not insane. Many people use lawyers to write their Wills to ensure conformity with the legal language and to ensure that their Will is not judged to be legally deficient. In the Holy Quran, Allah tells us to have two witnesses of the Will to ensure accuracy and validity. (5:107)
Those who transcribe a will for someone or those who find the will of the deceased and alter it to benefit or harm someone are declared sinners by Allah. “And he who alters it after he has heard it, the sin thereof surely falls upon those who alter it.” (2:182). The wills which do not follow the directions of God or are unjust can be challenged, and arbitration between the parties, as well as changing of the will, to guard the interest of all involved is permitted (Through family courts or the legal system). “But whoso apprehends from a testator apartiality or a wrong, and makes peace between them (the affected parties), it shall be no sin for him.” (2:183) The wasiyyat portion of the will should be made in a just manner without attempting to harm anyone with the help of the will (4:13).
Making a will in Islam is not a choice or option. It is necessary for a Muslim to make a will before his death. “It is prescribed for you, when death comes to anyone of you and he leaves much wealth that he should make a will to parents and near relatives to act with fairness; it is an obligation for those who are aware of God.” (2:181). The Holy Prophet (saw) said that a person should not let two nights pass without a Will (Bokhari, Kitab-ul-Wasaya, Muslim, Kitab-ul-wasiyyat, Abu Dawood, Kitabul Wasaya).
If a person dies without a will, many governments have their own rules that may differ from the wishes of the deceased. Therefore, it is important to have a will not just for the distribution of the estate, but also for the custody of children and other matters.
Order of Distribution: In Islam, the estate of any person, whether large or small, is distributed in the following order.
1) Pay for funeral expenses. If a person was poor at the time of his death and his estate cannot bear the expenses of the funeral, the state is responsible to pay from the treasury (Bait-ul-maal).
2) Pay the debts. This includes mortgages on residential or business properties, car loans, credit card loans, personal loans, unpaid employee wages, hospital bills, taxes, etc. A verse of the Holy Quran (4:12) listing such obligations mentions wasiyyat before debt. Hadhrat Ali said, “You read this verse where wasiyyat appears before debt. However, the Holy Prophet (saw) instructed to pay debt before wasiyyat, and this was his practice (Tirmidhi, Bab-ul-Faraidh). If dowry money (Haq Mehar) has not been paid to the wife, it will also be considered a debt.
3) Pay any bequeaths. This is called “Wasiyyat” in the Holy Quran. This includes any charitable contributions, share for those relatives who are not defined as inheritors in Islam, and money or property given to the poor, servants, and the needy. The limit of such bequests is 1/3rd of the estate at the most. The payment of “Hissa Jaidad” as part of “Nizam-e-Wassiyat” of jamaat Ahmadiyya falls into this category. This is the only portion of the estate on which the deceased has control.
4) The remaining part of the estate will be divided according to a predetermined order of defined inheritors as mentioned in the Holy Quran. The shares of these inheritors have also been fixed by Allah (4:8). The inheritors or their defined shares cannot be changed by anyone.
Heirs in Islam:
The estate in Islam is distributed according to the principles mentioned in the Holy Quran. In addition to passing down the estate to the next generation, Allah has also defined shares for the previous generation (parents and grandparents). The estate can go two generations up as well as two generations down. The presence of certain inheritors blocks others. For example, the presence of a son will block inheritance to the brothers and sisters of the deceased. As a general rule, the estate is divided as follows:
Parents: If the deceased has children, then parents will get 1/6th each. If the deceased has no spouse or children, then the mother will get 1/3rd and the father will get 2/3rd. If the deceased has siblings, then the mother will get 1/6th (4:12).
Husband: If the wife dies without children, the husband will get ½ of the estate. If the wife had children, the husband will get 1/4th (4:13).
Wife: If the husband dies without children, the wife will get 1/4th. If he had children, the wife will get 1/8th (4:13).
Daughters: If the deceased had two or more daughters and no sons, they will get 2/3rd of the total. If there is only one daughter and no son, she will get 1/2 (4:12).
Sons: It should be noted that son is not mentioned in the heirs by the Holy Quran. But son is the most important heir. Holy Prophet (saw) said, “Whatever is left after giving away the share to the mandatory heirs goes to the son. (Bokhari, Kitab-ul-Faraidh) A son’s share is twice that of a daughter (4:12).
All of the above shares will be distributed after payment of funeral expenses, debts, and bequests. Each of the above family members will inherit from the deceased if they are living at the time (an unborn child is included in the inheritance). The shares of these heirs in the inheritance cannot be blocked. There are other heirs too, but their inheritance depends on the presence or absence of the above mentioned heirs.
Guardians should be appointed for those heirs who are minors at the time of inheritance. They will get control once they become adults. There is no set age for this – once the elders feel that that heir is mature enough to take control, he can have ownership. In cases of dispute, courts can decide. Those heirs who are mentally disabled should also have guardians appointed to manage their share.
Women’s Share: In the Holy Quran, Allah has fixed a share for the women along with men in the estate of the deceased. “For men there is a portion in the estate of their deceased parents and close family, and for women there is a share in the estate of their deceased parents and close family, may it be little or plenty. It is defined inheritance.” (4:8).
As a general principal, the share of women in inheritance is half that of men (although not always – for example, the share of the father and mother is equal in the estate of their son). Some critics consider this as unequal treatment and proof of inferior status of women in Islam. Men and women are equal as human beings (God created man and woman from a single soul 4:2), but they are different from each other. Their roles in life are different. For example, only women can be mothers and therefore are afforded certain rights and obligations. In the matters of family, Islam has charged men with the duty of financial support (Men are responsible for the maintenance of women 4:35). Women are not obligated to contribute financially in the support of their families even when they have wealth and money. Therefore, from a financial standpoint, men need more resources. Hence, Islam provides them with more. However, Islam does not deprive women and has fixed shares for all close female relatives (mother, wife, and daughters) of the deceased in the inheritance.
Some other Situations: As is true for any set of rules, regulations, or laws, there will always be some exceptional situations that require individual attention. These situations cannot be addressed with regular rules. I will mention some of them but address only one in detail to demonstrate the availability of recourse in all such circumstances.
Problem: A grandchild is not an heir of his grandfather if child’s father has died. This seems an unfair situation. Child’s father who was his provider has passed away and the mother may not have sufficient means to take care of family expenses.
Solution: This situation has been recognized and addressed in Islamic Family Law. Allah says in the Holy Quran, “If at the time of division of an estate other family members and orphans are present, give them a portion too and deal with them kindly.” (4:9) Allah has permitted bequest of 1/3rd of the inheritance. This can be used for those who cannot inherit in the regular order. So in this situation the grandfather is free to give to his grandchildren whose father has died up to 1/3rd of his estate. Promised Messiah (as) says, “Grandfather can bequeath some to his grandson at the time of writing his Will…. That grandson whose father has passed away, being an orphan is more deserving of mercy. (Mulfuzat, Vol. 4, Page 297)
In 1950, Egyptian government formed a committee of scholars and they recommended the following, “Grandfather is obligated to make a Will in favor of his orphaned grandson up to 1/3rd of his estate. If he neglects to do so, it would be assumed as such.” The government adopted this as law. (Al Muwaris-ul-Islamia, rule 137 & 138)
In Islamic family law grandfather stands in place of father if father dies. Similarly a grandson is considered in place of a son, if son dies. (Bokhari, Kitab-ul-Faraidh) Majority of Muslim scholars are agreed on this. Therefore the grandson can inherit from his grandfather in the absence of his father, as a son. There is not a single documented case from the time of the Holy Prophet (saw) or the Khulafa where a grandson was deprived because of death of his father.
Problem: If a man has a daughter and a son, the son will inherit double the amount of his sister. The sister may be a single parent supporting her father and mother, and in need of more financial help. The son may be rich and uncaring.
Solution: It seems an unfair situation. Once again the father has the option of bequeathing a significant portion (1/3rd) to his grand children from the daughter, thus rectifying the situation. The daughter and her children will be able to get more of the total inheritance than the son.
Problem: The shares do not add up. There may be situations where the shares may not add up to whole. In some situations they may be less than the whole (Radd) and in others, more than the whole (Awal).
Example of Awal (Parts adding up to more than the Whole): A woman dies and leaves behind a husband, a mother and daughters. According to Quranic principal, husband will get 1/4th, mother will get 1/6th and daughters will get 2/3rd. To make it simple we can also write it as follows: Husband’s share 3/12 + Mother’s share 2/12 + Daughter’s share 8/12 = 13/12, which is more than the whole.
Solution: We can solve this problem by defining the share as follows: Husband’s share 3/13 + Mother’s share 2/13 + Daughter’s share 8/13 = 13/13. Now this adds up to the whole. Everyone’s share has been reduced proportionately.
Example of Radd (Shares add up to less than whole): A man dies and leaves behind his mother and a daughter. The mother gets 1/6th and the daughter gets 1/2 . To make it simple we can also write this as Mothers’ share 1/6 + Daughter’s share 3/6 = 4/6 which is less than the whole.
Solution: We can solve this problem by defining the shares as follows: Mother’s share ¼ + Daughter’s share ¾ = 4/4 which is equal to the whole. Everyone’s share has been increased proportionately.
Another solution: If the total is less than the whole, the left over can be distributed among those who are not mentioned as heirs. The excess cannot be given to the spouse. (Hadhrat Ali and Imam Abu Hanifah). When father is present, all of the excess will go to him. If only a spouse is left behind, then excess should be given to the treasury (Bait-ul-maal). (Ahmadiyyah view).
Another opinion: Hadhrat Zaid Bin Thabit a companion of the Prophet (saw) said that any left-over should be given to the national treasury. (Bait-ul-maal) Imam Malik and Imam Shafi agree with this.
These solutions are not mentioned in the Holy Quran or Traditions (Ahadith) of the Prophet (saw). These were first adopted in the time of Hadhrat Umar.
Ineligible relatives: These cannot inherit from the deceased in the regular order. They can be included in the bequest part of the Will.
Â Daughter’s children
Â Sister’s children
Â Brother’s daughters
Â Mother’s brothers
Â Mother’s sisters
Â Father’s sisters
Â Mother’s father
Â All of husband’s relatives from his wife’s estate
Â All of wife’s relatives from her husband’s estate
Â Step parents from their step children
Â Step children from their step parents
Â Adopted children are not included in inheritors
Â Non-Muslim relatives, such as non-Muslim parents or children are not part of the prescribed inheritors. This is a common problem when we are living in the West, where many Muslims have married into non-Muslim families. A Muslim cannot inherit from a non-Muslim either. (Bokhari & Muslim. Bab-ul-Faraidh) This may apply to only those situation where the relationship of the two Faiths is adversarial. (state of war) Quran gives clear instructions regarding non believer parents. It instructs us to deal with them with kindness and fairness in all worldly matters. (31:16) Non believer parents and other relatives can receive through wasiyyat. (Tafseer Kabir, Khalifatul Massih Sani)
Â Slaves: With God’s mercy, slavery is not legal in any part of the world and has disappeared. In old days, any property or possessions of the slaves would become the property of the owners. Therefore they were not included in inheritors as the inheritance would pass on to the un-intended person.
Â Ex wife
Â Illegitimate child (conceived and born outside of wedlock) can inherit from mother only.
Â A killer cannot inherit from his victim. (Sunan Ibn-e-Majah, Vol. 2. Bab-ul-Faraidh)
Â Time of death: If two people die at the same time, such as in an airplane crash, drowning etc, and it is not possible to determine, who died first, then they cannot inherit from each other. The time of death of some deceased in the battles in early Islam, such as “Jamal” and some other battles could not be determined accurately. In these circumstances no deceased was awarded inheritance form the other deceased unless the time of death could be determined and order of death could be established. (Mauta Imam Malik, Kitab-ul-Faraidh)
Removing or depriving an heir form inheritance: It is a practice in some parts of the world that father disowns his son because of son’s bad behavior. He also removes the name of the son from his heirs (aaq). Ads are taken out in newspapers to advertise the displeasure. The will is written to reflect that so and so cannot inherit from the estate.
Islam does not allow this. The heirs have been determined by Allah the Almighty in His infinite wisdom and their shares are fixed. According to the Holy Quran, no one has the authority to instruct the division or allocation of his estate after his death. Allah has permitted a wasiyyat which can include only 1/3rd of the estate at the most. The rest is divided among the divinely appointed heirs. Even wasiyyat part can be changed if it is determined to be unjust. Such a Will can be challenged and will be held deficient in Islamic Family Law. No one has the authority to expunge an heir from inheritance if Allah has included him or her in the heirs.
Allah says in the Holy Quran, “Among your elders and your children, you don’t know who is of more benefit to you. (in the context of fixed portions in inheritance) This is an obligation from Allah. Surely Allah is All Knowing and Wise.” (4:12)
During a person’s life time one is free to gift (hiba) anything from his possessions to anyone. If some property or money is legally given to someone else, this does not remain the legal possession of the deceased. Therefore it will not be included in his estate. Of course Quran also teaches us fairness and justice, and this should always be kept in mind.
Hadhrat Nauman Bin Bashir relates, “My father gave me a gift (hiba). My mother, Umrah binnat Rawaha, objected and insisted that we should have the Holy Prophet (saw) as witness for this gift (hiba). His father went to the Holy Prophet (saw) and said, I have made a gift to my son but his mother insists that you should be the witness for this transaction. Holy Prophet (saw) asked, “Have you gifted the same to all of your sons?” He said, “No”. Holy Prophet (saw) said, “Fear Allah and act with justice between your children.” Hadhrat Nauman says his father withdrew the gift. (Bokhari, Kitab-ul-Hiba)
Hadhrat Anas says, Holy Prophet (saw) said, “A person who makes an effort to deprive his heirs of their share in his inheritance, Allah will not let him inherit the Paradise on the Day of Judgment.” (Ibne Majah, Bab-ul-Wasaya)
Bequest or Wasiyyat cannot be done in favor of one who is included in the heirs. For example, father cannot give anything extra to his son or daughter over and above their prescribed share. (Tirmidhi, Bab-ul-Wasaya)
A Special Case: Holy Prophet (saw) said, “We, Messengers have no inheritance. What we leave behind is all charity.” (Bokhari, Kitab-ul-Faraidh)
At the time of death the Holy Prophet (saw) owned some land in Khaibar and his personal belongings such as his armor etc. Hadhrat Ayesha relates that Hadhrat Fatimah (daughter of the Holy Prophet saw) and Hadhrat Abbas (uncle of the Holy Prophet saw) went to Hadhrat Abu Bakr asking for their inheritance. Hadhrat Abu Bakr replied, I have heard the Prophet (saw) say that we Messenger of God have no inheritance. Whatever we leave behind is sadaqah (charity). Upon this Hadhrat Fatimah left and did not speak with Hadhrat Abu Bakr until his death. (Bokhari, Kitab-ul-Faraidh)
After the death of Hadhrat Abu Bakr, Hadhrat Ali (husband of Hadhrat Fatimah) and Hadhrat Abbas came to Hadhrat Umar who was the Khalifa at that time and asked for their inheritance in the estate of the Holy Prophet (saw). Hadhrat Umar said, “Do you not know that a Prophet has no heirs? Allah says in the Holy Quran in sura Al-Hashr, “Whatever Allah has given to His Messenger as spoils from the people of the towns is for Allah and for the Messenger and for the near of kin and the orphans and the needy and the wayfarer. (59:8). (Bokhari, Kitab-ul-Faraidh) Hadhrat Umar also did not give any share to Hadhrat Fatimah or Hadhrat Abbas. The wives of the Holy Prophet (saw) received their daily expenses from the income of the land through Bait-ul-Maal.
This is simplified account of the principles of inheritance in Islam. The more complex the situation of relatives at the time of death, the more complex is the solution. Since heirs have been accurately defined as well as their share in inheritance, it becomes possible to calculate each person’s inheritance by simple arithmetic. There are many calculators available on the internet which can calculate the exact inheritance of each heir.
The subject of inheritance has been mentioned in only a few verses of the Holy Quran. And within these verses Allah has given us a detailed and firm guidance in this matter. All Muslims are required to follow these principles.
Allah says in the Holy Quran, “These are the limits set by Allah. Those who abide by Allah and His Messenger will enter into Gardens by which streams flow. This is where they shall live. This is a great triumph. And those who disobey Allah and His Messenger and step over the limits set by Him will be cast into the Fire. This is where they shall live and for them is a humiliating punishment. (4:14-15)
Debts: Islam does not prohibit taking out loans. In times of need one can take out a loan. There are many examples in the life of the Holy Prophet (saw) when he took loans even from non-Muslims. Islam instructs its followers to spend a frugal life and try to keep the needs within means. Holy Prophet (saw) said, “One who takes a loan from others and intends to return it, Allah would help him. And the one who takes out a loan and does not intend to return it, Allah will let him go to waste.” (Bokhari)
Hadhrat Salmah Bin Aku states that one day they were in the company of the Holy Prophet (saw) when a funeral was brought to him. People requested him to lead the funeral prayers. Holy Prophet (saw) asked, “Did this person have any debts?” People said, “No”. Holy Prophet (saw) asked, “Did he leave behind any wealth?” People said, “No”. Holy Prophet (saw) lead the funeral prayers.
Another funeral was brought to him and people requested for funeral prayers. Holy Prophet (saw) asked if the deceased had any debt. People said, “Yes”. Holy Prophet (saw) asked if he had left any wealth. People said, “Yes”. The Prophet led the prayers. A third funeral was then brought and people requested funeral prayers. Holy Prophet (saw) asked if the deceased had left any wealth. People said, “No”. The Prophet (saw) then asked, if he had debts. People said, “Yes”. The Holy Prophet (saw) said, “You should do the funeral prayers of your companion”. Abu Qatadah said, “I take responsibility for his debt”. Upon this Holy Prophet (saw) led the prayers.” (Bokhari & Muslim)
Hadhrat Abu Hurairah relates when a funeral was brought to the Holy Prophet (saw) and the deceased had unpaid debt, the Holy Prophet (saw) used to ask; has this person left enough to pay off the debt? If the answer was yes, the Prophet (saw) would lead the funeral prayers. Otherwise he would ask the companions to do the funeral prayers. (Muslim)
It is clear from the traditions of the Prophet (saw) that he attached great importance to paying off the debts. Anyone whose debt was more than his estate, Holy Prophet (saw) did not lead his funeral prayers.
These days we live in a society where mortgages and loans are a way of life. We should all strive hard to live within our means and save enough that at the time of death, not only our debts will be paid off, we will also leave behind sufficient for our heirs as well as give some to charitable causes. This is the teaching of Islam.
A Non-Muslim scholar on Islamic law of inheritance: Professor Almaric Rumsey (1825-1899) of King’s College, London, the author of many works on the subject of the Muslim law of inheritance and a barrister-at-law, stated that the Muslim law of inheritance, “comprises beyond question the most refined and elaborate system of rules for the devolution of property that is known to the civilized world.” (Rumsey, A. Mohummudan Law of Inheritance. (1880) Preface iii)