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Complying With Fiqh Rules Regarding Inheritance

Ustadh Salman Younas breaks down the rules of inheritance in a complicated case, advising caution and consulting local scholars.

Question:

Assalam alaykum wa rahmat Allah wa barakatuh.

I am a single female, never married. My mother has passed, may Allah have Mercy on her. It seems straightforward that 2/3 of my assets would go to my father, and 1/3 can go to any person, charity, etc. assuming they will not be beneficiaries from my father (i.e. my siblings). Please confirm if my understanding is correct.

I’m having trouble determining “contingent” beneficiaries according to Islamic law in the event my father passes before me. I have 3 brothers. One who claims that he does not believe in God. One brother is married to a Lutheran, and their two children are Muslim. I also have 2 sisters, one who is married to a Catholic, and the husband and their 3 children are Catholic. My father remarried, and has a grown step daughter (she is in her 30s). My father is 80, and my siblings and I are in our 50s.

It seems, based on what I’ve read, that my brother who does not believe is not entitled to receive inheritance from a believer. Please confirm.

If that’s the case, do I divide this into 6 parts, with 2 going to each believing brother and 1 part going to each sister? Or is the sister married to the Catholic not entitled also?

In addition, I have several aunties, uncles, cousins from my mother’s side, and half aunts, uncles and cousins from my father’s side. In order to comply with fiqh, do I need to leave anything for any of them?

Jazakum Allah khayran.

Answer:

Wa alaykum assalam wa rahmat Allah wa barakatuh.

1. If you are survived by your father and siblings, your father will inherit everything. You may, however, bequeath 1/3rd of the inheritance to anyone of your choosing. (Note: The general rule is that a bequest cannot be made to a person who is an inheritor unless permitted by the other inheritors, but this is not applicable in the case here).

2. If your father passes away and you only have surviving siblings, your three brothers will each receive 1/4th, your two full sisters 1/8th each, and your consanguine sister will not receive anything.

However, the inheritance of a Muslim can only be inherited by a Muslim. Thus, if one of your brothers is not a Muslim, he will not be entitled to a share in the inheritance as a designated inheritor, which will mean two brothers will each receive 1/3rd and your two sisters 1/6th each, or, putting it differently, 2/3rds will be divided between your brothers and 1/3rd between your sisters. The judgment about his Islam, though, is a serious matter and should not be made without clear decisive evidence and the counsel of recognized scholars.

3. As for uncles, aunts, and cousins, they will not receive anything in the presence of your full brothers or sisters.

I would advise you that despite this answer, you should consult a reliable, local scholar on the specifics of your situation, family details, and the rights each are owed.

Salman

Checked and approved by Shaykh Faraz Rabbani.


Is Inheritance Divided According to Area or Value of Land?

Answered by Ustadh Tabraze Azam

Question: Assalam alaykum

My maternal grandmother passed away last year leaving behind 2 children; a boy (my uncle) and a girl (my mother). Her husband (my grandfather) died long ago. She left behind a plot of land. My mother claims that the total price of the entire plot must be divided into thirds and she is entitled to one-third of that value, and her brother is entitled to two-thirds of that value – instead of simply dividing land in terms of area. Is her claim valid?

Answer: Wa alaikum assalam wa rahmatullah,

Yes, your mother’s claim is correct, namely, that she has a right to one third of the value of the entire plot.

Allah Most High says, “These entitlements are the limits set by Allah.” [4:13]

After death, every part of the estate is owned by the heirs according to their respective share. Thereafter, one party cannot simply divide the estate as they wish, especially when it is to the detriment of the other inheritors. Rather, there needs to be clear agreement between everybody.

Given that this is a sensitive issue, I’d suggest that you consider involving a respectable third party and a scholar to ensure that everybody gets their full share.

Please also see: Dividing an estate for inheritence and: Inheritance Laws: Can I Stipulate Other Than the Determined Amounts Mentioned in the Qur’an?

And Allah Most High alone knows best.

wassalam,

[Ustadh] Tabraze Azam

Checked and Approved by Shaykh Faraz Rabbani

Ustadh Tabraze Azam holds a BSc in Computer Science from the University of Leicester, where he also served as the President of the Islamic Society. He memorised the entire Qur’an in his hometown of Ipswich at the tender age of sixteen, and has since studied the Islamic Sciences in traditional settings in the UK, Jordan and Turkey. He is currently pursuing advanced studies in Jordan, where he is presently based with his family.

What Are the Leeways in Dividing a Family Home After the Parents’ Death?

Answered by Shaykh Shuaib Ally

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

Can I give away all my wealth before dying?

Answered by Ustadh Tabraze Azam
Question: My children have careers and are settled. My wife has her own property and investments and income.Am I free to spend my wealth (in its entirety) as I see fit while I am alive and leave nothing for my heirs?
Answer: Assalamu alaikum wa rahmatullahi wa barakatuh,
I pray that you are in the best of health and faith, insha’Allah.
Yes, in terms of permissibility, it would be permitted for you to spend your wealth as you wish as long as it does not impinge on your ability to support your wife and other dependants.
However, the sunna would be to leave wealth for your inheritors, even if they may not be in need of it. And this, too, is what generosity would entail, particularly as it is the sunna of the Holy Prophet (Allah bless him and give him peace). Spending on your family is a form of tremendous charity when coupled with lofty intentions for the sake of Allah Most High.
Sa`d ibn Abi Waqqas said, “The Messenger of Allah, may Allah bless him and grant him peace, visited me in the year of the Hajj of Farewell on account of a serious illness I had. I said, ‘Messenger of Allah, this illness has affected me as you see and I have property but no heirs other than my daughter. Shall I give two-thirds of my property away as sadaqa?’ He replied, ‘No.’ I asked, ‘A half?’ He replied, ‘No.’ He said, ‘A third, and a third is great (or a lot). It is better to leave rich heirs than to leave them poor, begging from other people. There is nothing you spend, desiring by it the face of Allah, but that you will be rewarded, even for a morsel you put in your wife’s mouth.’ I said, ‘Messenger of Allah, will I be left behind [in Makka] after my companions leave?’ He said, ‘You will not be left behind, for any virtuous actions you do will raise you in degree and elevation. And then perhaps you might be left behind so that some people will benefit from you and others be harmed by you. O Allah, let My Companions complete their emigration and do not let them turn back on their heels,’ but poor Sa’d ibn Khawla had the Messenger of Allah grieve over his death in Makka.” [Bukhari and Muslim]
Ibn `Allan explains that this tradition (hadith) encourages us to strengthen family relations, show excellence to one’s relatives, show gentleness towards one’s inheritors, and that giving to one’s family is also a means of tremendous reward when one has a sincere intention for the sake of Allah. [Ibn `Allan, Dalil al-Falihin]
The only exception to being able to do as you wish with your wealth would be in the case of a mortal or terminal illness (marad al-mawt). Details of such a case can be explained upon request.
See also: The Twofold Virtue of Giving Charity to One’s Family
And Allah alone gives success.
wassalam,
Tabraze Azam
Checked & Approved by Shaykh Faraz Rabbani.

Inheritance Questions Following Father’s Death

Answered by Shaykh Ilyas patel

Asalaam Alaikum,

Our father passed away 3 years ago and left us some properties. We already split the biggest part but now there is a complicated bit left.

My father had a joined bank account with my mom, before he died he said to my mom that the money in that account is for my mom if my fathers death comes before hers.

The amount on that account is not even 15% of his total belongings.

1. So my first question is this ok?

In our home town my father left us one apartment and a few small shops and some pieces of land. The shops and apartment are rented, the land is used by my uncle to grow crops.

The same uncle is paying off a debt he had to my late father. The value of the shops and apartment is very low since its in a small village.

Since the value is not so high and its to complicated to sell and split it up, we have decided 3 years ago that all remains as before. Meaning my mom collects the rent and debt and pays zakat ( she also pays zakat over the money mentioned in my first question)

2. So my second question: since me and my siblings are entitled to our share ( debt , shop , apartment) But left it for our mother to manage do we revieve any benefits from the zakat that our mother is paying annually? And is it ok for us to continue this way ?

We also have a house in the city we live in now. Instead of selling it we have decided that i could buy it The notary made all papers up for us according to the law here.

According to sharia my siblings are entitled to a bigger share then what the law here says. So I have agreed to pay them more.

3. My last question is : this house belonged to my late dad, I am the one buying it after he passed away. According to the law here, I have to bear all the costs including: notary, taxes, and the appraiser. What does sharia say about this?

Answer:

1) Yes this is allowed if all the heirs agree to this after the death of your father.

2) Yes it would fine for you continue if all the heirs agree to what you have mentioned.

3) The house has to be distributed according to the allocated shares after the death of your father. If you buy it then you will have to give the share to your siblings. As for the cost of the notary, tax and appraiser you will have to bear it, as you are the buyer of the house.

And Allah alone knows best,

Wassalam,

Ilyas Patel

Grandchildren Inheriting from Their Grandfather

Answered by Shaykh Faraz A. Khan

Question: Please advice whether grandchildren can inherit from the grandfather, when the father is already deceased and then the grandfather passes away, in the scenario that the grandfather himself still his own children (say one son and one daughter).

If the grandchildren do not normally inherit, are there circumstances in which they do?

Answer: Assalamu alaikum wa rahmatullah,

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

In the example you mention, the grandchildren will not inherit since the grandfather’s children are alive. [Maydani, Lubab]

As far as other scenarios are concerned, please give the specific case since rulings will change based on the exact circumstance.

And Allah knows best.
wassalam
Faraz

Checked & Approved by Faraz Rabbani

Dividing an Estate for Inheritance

Answered by Shaykh Faraz A. Khan

Question: My father passed on in 1992. He left 4 plots of land. On 3 plots there are buildings of different values. My father had 2 wives and had children from both (alhamdulilah).

Does the inheritance have to be divided into two equal parts and then each household, i.e, the two wives and their children divide among themselves or will it be divided equally from the outset for each person, meaning considering the two households as if they were one household.

Also we were told that we sinned by not dividing the inheritance right after my father’s death. Is this true?

Answer: Assalamu alaikum wa rahmatullah,

I pray this finds you in the best of health and states. Please pardon me for the undue delay in response.

(1) In general, every heir, regardless of which household he/she belongs to, has a specific share of the total estate. The default is that each individual part of the estate (like each plot of land, for example) is divided among all heirs based on respective shares. However, if the heirs mutually agree, then the estate could be divided in a way such that one person or family has one entire plot while another one has another plot, as long as everyone still receives his/her respective share.

For specifics, a local reliable scholar should be consulted.

(2) The estate of the deceased must be divided immediately upon his death, as every heir becomes an immediate owner of his or her share and has the right to their property. Delaying therefore is sinful, so due care must be taken. [Maydani, Lubab]

And Allah knows best.
wassalam
Faraz

Checked & Approved by Faraz Rabbani

Inheriting from Maternal Grandmother When Maternal Aunts and Uncles Are Living

Answered by Shaykh Faraz A. Khan

Question: My husband’s mother passed away in the early 2000’s. His maternal grandmother passed away recently. My husband’s maternal uncles and aunts are awarding him property as he would have inherited had his mother been alive at the time of his grandmother’s death.

My husband’s question is can he inherit his grandmother’s property in this manner?

Answer: Assalamu alaikum wa rahmatullah,

I pray this finds you in the best of health states.

Your husband would not inherit in this scenario. Your uncles/aunts have no obligation to give him any of their rightful shares of inheritance. This should be made completely clear to them, so there is no pressure whatsoever on anyone to give up his/her right or a portion thereof. If anything has already been given, it must be returned immediately.

Aside from this, however, if any of the heirs wishes to give a gift to your husband, that would be fine.

And Allah knows best.
wassalam
Faraz

Checked & Approved by Faraz Rabbani

Converts and Inheritance

Answered by Shaykh Faraz A. Khan

Question: I have a question regarding inheritance. My husband and I are both converts. Recently, my mother converted alhamdulillah; otherwise we have no Muslim relatives. We also have two adopted children who are young (8 year old twins).

How should we structure are wills, so that my mother gets her rightful share (which I am not sure what it is – 1/6?) and so that we can provide for our girls? Their birth parents left them at an orphanage without providing any information about themselves and therefore they will not be receive an inheritance through them.

 

 

Answer: Assalamu alaikum wa rahmatullah,

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

There is scholarly consensus that a non-Muslim does not inherit from a Muslim. [Ibn Qudama, Mughni]

As such, your only rightful heirs are your husband and your mother. Your husband is entitled to 1/2 of your estate. Your mother is entitled to 1/3 of your estate, and then the remaining 1/6 also goes to your mother [by returning of what remains (radd)].

As for your husband, you are his only rightful heir and hence you are entitled to his entire estate (1/4 is your rightful share, and then the remaining estate goes to you as well).

As for the twins for whom you both are caretakers, each of you may give them a bequest (wasiyya) of up to 1/3 of the estate (without need of anyone’s approval). If you wish to give them more than 1/3 of your estate, your mother and husband would have to approve after your demise. If he wishes to give them more than 1/3 of his estate, you would need to approve after his demise. [Maydani, Lubab]

And Allah knows best.
wassalam
Faraz

Checked & Approved by Faraz Rabbani

Related Answers:

Does Islamic Law Require that My Property be Divided in Particular Way in the Event that I Die?

Inheritance Laws: Can I Stipulate Other Than the Determined Amounts Mentioned in the Qur’an?

Dealing with Death: Inward & Outward Manners

Loans Entailing More Reward than Charity and the Validity of an Estate’s Executor Being a Beneficiary in the Will

Answered by Shaykh Faraz A. Khan

Question: I have questions about 2 statements made by an imam, which I suspect to be incorrect.

First, he said there is an authentic hadith wherein the prophet said that to give a loan is 17 times more rewardable than to give charity of the same amount.

Secondly, on the matter of inheritance, he said it is acceptable for the property to be divided up by one of the beneficiaries. i.e., the executor of the will can be someone who stands to receive goods from the deceased. I feel this is unethical because it leaves the tempting opportunity to interpret the will favorably to oneself. I feel the correct way is for the executor to be a state-appointed official with no personal interest.

Answer: Assalamu alaikum wa rahmatullah,

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

(1) There is a hadith that states, “On the night I was taken in journey [to Jerusalem], I saw inscribed on the door of Paradise, ‘Charity is multiplied ten-fold, while giving a loan eighteen-fold.’ I said, ‘O Jibril, how come a loan is more meritorious than charity?’ He replied, ‘Because the beggar asks [for charity] despite having wealth, while the one seeking a loan does not do so unless out of real need.'” [Ibn Maja; Bayhaqi, Shu`ab al-Iman; Tabarani, Mu`jam Awsat]

However, the chain of transmission (isnad) of this hadith is weak, due to a weak narrator (although Ibn Hibban and others considered that narrator reliable). [Haythami, Majma` al-Zawa’id]

With respect to its meaning, the hadith itself gives the basis of a loan being better than charity, namely, that one seeking a loan is in real need. However, many scholars deemed charity as better since nothing is given back to the donor. There is also a hadith that supports this opinion, namely, “If one loans two dirhams, it is akin to donating sadaqa of one dirham.” [Ibn Hibban]

Imam Munawi reconciles these different hadiths by saying, “In reality, it depends on the individuals, their circumstances and the times.” That is, every situation is unique, so the merit of each case would have to be examined individually: sometimes charity is better, other times giving out a loan is more meritorious. [Fayd al-Qadir]

(2) The executor of a will may be one of its beneficiaries. There is nothing wrong with that according to Sharia. Usually, the entire family is involved in the process, so it is not that easy to favor oneself in the process of estate division. One could actually make the opposite argument — that appointing a family member as executor is probably more likely to lead to fair division as compared to appointing someone outside the family.

In any case, what the jurists mention is that the executor should be upright, trustworthy, and able to carry out the will. [Haskafi, Durr al-Mukhtar; Zada, Majma` al-Anhur; Maydani, Lubab]

Lastly, in the United States (in some states at least), it is not uncommon for a good portion of the estate to be used up in exorbitant fees and the like when estate division is left to attorneys, even if state-appointed. So it is important for one to specify the executor in one’s will.

And Allah knows best.
wassalam
Faraz