On the occasion of the death of a person, we are reminded of the Hereafter, and to an extent, we are mindful of ensuring that our actions concerning the deceased are completed according to the Commands of Allāh ta'ālā and the sunnah of the Prophet sallallāhu 'alayhi wasallam. Unfortunately, one area which remains largely unpractised and neglected is that of the correct distribution of inheritance.
The wealth, possessions, property, etc. that a person leaves behind are the deceased's estate. This needs to be distributed to the rightful inheritors in accordance with the laws of Sharī'ah. The Prophet sallallāhu 'alayhi wasallam, stressing its importance, says,
Learn (the knowledge of) inheritance and teach it (to the people), for it is half of knowledge; and it will eventually be forgotten. It will be the first (knowledge) to be taken away from my Ummah. (Ibn Mājah)
Nowadays, even those considered religious, who are very cautious regarding their wealth and food, ensuring that they are all from halāl sources, are neglectful regarding this part of Sharī'ah. Beware of the fact that not giving someone their due right from the inheritance is just like stealing their wealth. Stated below are a few points which will, inshā'allāh, help us learn some basic principles of inheritance, together with prevailing misconceptions and incorrect practices. Due to the delicate and complex nature of the rules of inheritance, one must consult the 'Ulamā and Muftīs in all circumstances.
When distributing the deceased's estate, the following steps need to be taken in the order mentioned:
- From the estate, the first right of the deceased is that of the funeral expenses. It is of course another matter if out of love one or more of the inheritors decide to personally bear the expenses. However, if the deceased be a woman survived by her husband, then her husband will bear the funeral expenses. This will be his responsibility, irrespective of whether she has left behind an estate or not. It should be remembered here that neither should one indulge in extravagance nor miserliness, but a path of moderation should be adopted.
- After drawing the funeral expenses, one will need to ascertain whether the deceased had left any debts. If needed, scrutinise his records and statements to determine this. Any debts need to be paid off before any inheritor can receive any share. For example, if the deceased left behind a house valued at £100,000 and also had debts amounting to the same, then the house will be sold and the debt will be settled after deducting funeral expenses. The inheritors will, in such circumstances, receive nothing. Should the inheritors refuse to clear the debts and unjustly claim the house for themselves, then the estate, which they will have wrongfully seized, will be deemed harām.
- A person has the right to make a wasiyyah (bequest) in one third of his estate in favour of certain individuals or eligible organisations and causes. There are two principles which apply to this.
- Firstly, the deceased cannot make a wasiyyah for anyone who stands to receive a share in his inheritance as defined by the Sharī'ah. This is because the Prophet sallallāhu 'alayhi wasallam has said, “There is no wasiyyah for the inheritor.” (Abū Dāwūd)
- Secondly, wasiyyah can only apply to a maximum of one third of the estate.
For example, if a person makes a wasiyyah for £5,000 to be donated to a particular masjid, as far as the first condition is concerned, the masjid will be eligible as it is not an inheritor of the deceased. However, upon death, if after deducting the funeral expenses and debts, it is calculated that only £9,000 remains, then the masjid will not receive £5,000 as proposed in the wasiyyah. Rather, it will only receive £3,000, as wasiyyah can only apply to a maximum of one third of the estate.
- Lastly all those who are eligible to receive a share of the inheritance should get their respective shares according to what has been defined in great detail in our Sharī'ah. For this, an 'Ālim or Muftī should be consulted.
Important note: Females who stand to inherit are often neglected. The Sharī'ah, with its wisdom, has allocated shares for both males and females and it is important that these are abided by.
For men there is a share in what the parents and the nearest of kin have left. And for women there is a share in what the parents and the nearest of kin have left, be it small or large, a determined share. (4:7)
Unfortunately, nowadays in society it is common that women are not given their share; rather, they are contacted by the brothers who inform them of their plans for their share of the wealth and in doing so attempt to coax them into making the same decision. In many cases, due to the position of the brother in the family, the sister, daughter, etc. will find it difficult to actually acquire her share. Therefore, the money should be physically handed over to her so that she can decide as she wishes.
Note: It should be borne in mind that in situations wherein there is a minor (non-bāligh) amongst the inheritors, and the inheritors decide to collectively spend the estate in a certain cause, the consent of the minor will not be valid until he/she reaches maturity. This is because in many cases the consent of a minor is not valid in Sharī'ah. However, if other inheritors besides the minor decide to individually or collectively spend their share of the inheritance in a particular cause then this is their prerogative.
Note: Another very important matter to keep in mind is that of separate and identifiable ownership. Many people nowadays have joint bank accounts. Upon the death of a person, it becomes extremely difficult and sometimes impossible to ascertain exactly how much belonged to each person because each would deposit their money into one account. By keeping separate bank accounts it becomes easy to distribute the inheritance correctly after someone's death. Similarly, every item in the home should have an identifiable owner, so upon the death of someone there are no issues. In order to do this, records should be kept clearly identifying the owners of all items in the home.
Inshā'allāh, if we keep in mind the importance of consulting the 'Ulamā and Muftīs regarding inheritance and start with the few basic principles mentioned above, we will be able to ensure its correct implementation upon someone's death. May Allāh ta'ālā grant us the tawfīq to fulfil His commandments in all facets of our lives.