INTRODUCTION
Inheritance is the transfer of legal ownership of a deceased’s assets to his heirs. The legal basis for the law of inheritance is found in Shariah, the Sayings of the Holy Prophet Mohammad (PBUH).
Shariah is the primary source of Islamic law and is based mainly on the Quran and Sunnah. All Muslims living in any country of the world can expect to have their estates wound up according to the Islamic Inheritance Law.
DEFINITOIN OF FARAIDH
The Arabic word for the distribution process of assets after death according to Islamic Law is Faraidh.
DEFINITION OF TARIKAH/LEFT BEHIND ESTATE
Tarikah can be defined as the gross estate of the deceased prior to the deduction of rights and claims attached to it.
- The Estate includes all property, debts, pecuniary rights, and blood money.
- Life insurance is not considered part of the estate, as life insurance is considered haram in Shariah.
- Legal Heirs inherit the estate based on the Islamic Law of Inheritance
- After the death of a person, his estate is distributed based on the following stages in the same sequence
- In some Muslim Countries (like Malaysia) the issue of jointly acquired property is to be settled prior to any distribution of the state.
PROCEDURE FOR DISTRIBUTION OF ESTATE
There are four stages that follow after the death of a person. They are as follows;
1. FUNERAL & BURIAL EXPENSES:
The funeral/burial expenses include the expenses incurred in providing;
- A kaftan (shroud)
- Digging of the grave, etc
The rule in this regard is moderation Neither must one be extravagant nor miserly. Feeding those who have come to attend the funeral is not a part of the funeral expense. It is not permissible to use the wealth of the deceased for this purpose.
If any of the heirs are orphans, to use the wealth of the deceased for this purpose will be tantamount to usurping the rights of orphans, which the Glorious Qur’an describes in the following words:
“Verily those who wrongfully eat the wealth of orphans, they are indeed consuming fire in their stomachs, and soon they will enter the burning flames.” (An-Nisa)
Explanation:
- Funeral/burial expenses should be paid out of the dead person’s estate
- Hanafi Fiqh says the husband should pay for the wife’s funeral expenses.
- Maliki Fiqh is the same.
- Shafii Fiqh says the husband is to pay only if he was richer than his wife.
- Taking care of the Funeral/Burial of the deceased is Fard Kifayah, and responsibility falls upon the larger Muslim community, especially when the deceased didn’t have family or was poor.
- Funeral expenses generally take precedence over the debts
- Deceased to be buried according to Islamic Law of Burial/Funeral
- Funeral/Burial to be very simple and nothing extravagant should be done.
- Funeral/Burial must be done in an emergency, and no delay should be made. It must be done ASAP.
2. PAY ALL DEBTS:
After the funeral/burial expenses have been paid, the debts of the deceased must be fulfilled. Great stress has been laid in the ahadith on the fulfillment of debts. It is reported that a martyr is totally forgiven, except for the unpaid debts (Mishkaat P:330).
In another Hadith, it is reported that when any person would pass away;
The Holy Prophet (PBUH) would enquire from the Sahaaba (RA) as to whether he had any unfulfilled debts. If the answer was in the affirmative and he did not leave behind sufficient funds to fulfill the debt,
The Holy Prophet (PBUH) would refuse to perform the janazah salah unless someone would undertake to pay the debt on his behalf. When the debt becomes due, it should be paid promptly. To delay the payment without a valid reason is a serious sin
The Holy Prophet (PBUH) is reported to have said:
“The delaying in the settlement of a debt by a wealthy person (one who has the funds to pay the debt) is oppression (Mishkaat P:251).”
If the debts are in excess of the total estate, the creditors will share what is available on a pro-rata basis. The heirs, who in this instance will obviously receive nothing, are not obliged by the Shariah to fulfill the outstanding amounts. If an heir (or any other person) pays the balance on his own accord, it will be his favor upon the deceased.
If the amounts remain unpaid (and are not forgiven either), the deceased will be liable for them on the day of Qiyamah. On that day the outstanding amounts will be fulfilled by the good deeds of the debtor being transferred to the creditor.
Explanation:
- All debts must be paid before the execution of the deceased will.
- Debts of People: If debts are more than estate, then all of it will go towards debts. If there is more than one debtor and debts are more than the estate, then the estate will be distributed to debtors based on the proportion of their debt.
- Debts of Allah: The majority view is that the debts to Allah (zakah, obligatory expiations, etc) should be paid whether mentioned in the will or not. However, there is a difference of opinion on that.
3. WILL OF DECEASED:
With regards to Wasiyyah, the Shariah viewpoint is quite simple. A person is entitled to make a Wasiyyah of any amount upto one third the value of the net estate, after the payment of funeral/burial expenses and debts. The wasiyyah of fulfilling any undischarged Haququllah will also be calculated from this one-third if a bequest is made for the undischarged Haququllah to be fulfilled.
If the total wasiyyah for individuals or institutions, etc. exceeds one-third, the amounts will be reduced proportionately and brought down to the maximum limit of one-third.
Note: If the deceased made no Wasiyyah at all, the total estate will be distributed among the heirs.
IMPORTANT POINTS
- If the deceased left a will, the will must be executed after all funeral/burial expenses and all the debts are paid.
- The Will of the deceased cannot exceed more than 1/3 of his estate.
- The will execution comes after the debts and before the distribution of Mirath (inheritance) This way the practice of the Prophet (PBUH). Here debts are obligatory to be paid, while the will is optional. Hence, the debts should be paid first.
- If a child of the deceased special care (he may be physically disabled deceased can help him by giving him a donation to care for him, but not by the way of a will
- There are two parties in the will;
- The Testator or the person who is making the will.
- Legatee or beneficiary of the will.
4. DISTRIBUTION OF INHERITANCE:
(i) The last stage is to distribute the remnants of the estate/assets among the inheritors who are fixed by the Shariah this includes the Quran, Sunnah, and Ijma of Ummah.
Beneficiaries from the Legal heirs are in two categories:
-
- Ashab-ul-Furud: Obligatory Sharer or Primary Heirs with fixed shares or Quranic heirs.
- Al-Asabat: Residuanes by reason of blood relationship or special reason.
(ii) The order of distribution amongst the heirs of deceases is clearly defined.
(iii) Potential heirs can be disqualified from inheriting under certain circumstances.
(iv) Principle of Representation:
In Shariah, only heirs alive at the time of death are entitled to inherit, they cannot be represented by someone else who has died before the propositus.
This is based on the cardinal principle, that the nearer in degree to the deceased excluded the one who is more distant.
(v) Principle of Substitution:
If the father or mother of the deceased also died, but he has a grandfather or grandmother then the true grandfather inherits in place of the father. The true grandmother inherits in place of the mother.
CONCLUSION
It is concluded that the estate of the deceased should be wound-up as a matter of urgency Delaying this matter could result in scenes of serious problems.
Therefore three aspects have a prior right over the estate and will be fulfilled before the shares of the heirs are calculated i.e. funeral/ burial expenses, debts, and will.
The last stage is to distribute the remnants of the estate/assets among the inheritors who are fixed by Sharia, this includes the Quran, Sunnah, and Ijma of Ummah.
FAQs
What particular steps are taken before the division of the estate of a deceased, prior to its distribution amongst the legal heirs?
(2019-A)
Please explain the necessary steps before the division of the estate of the deceased.
(2017-A)
What are the heads where the estate of a deceased may be spent before distribution of his estate amongst his/her heirs?
(2011-A, 2010-A)
Enlist the heads where the estate of a deceased may be spent before his estate is distributed amongst heirs.
(2009-S)
