Inheritance and Will

Islam is a comprehensive religion that regulates all the affairs of its adherents during their lives and even after their death. The Islamic law of inheritance recognizes man as a trustee of the wealth he owns for the duration of his wealth. When his term of life expires, his trusteeship over his wealth and property expires. It has then to be distributed according to the directives of Almighty Allah.
Muslims, who are living in countries where the Islamic Law of inheritance is not applied, are in a dilemma because their wealth will most likely not be distributed according to the Islamic Law. From here it becomes important that they make a will in which they should stipulate that their wealth is to be distributed according to the Islamic teaching.

Dr. Muzammil H. Siddiqi, former President of the Islamic Society of North America, issued the following Fatwa: “A Muslim’s wealth should be distributed among his/her heirs according to the laws of Allah. It is obligatory on every Muslim to follow the laws of inheritance unless the heirs themselves by their own choice give up their rights in the inheritance. Allah has mentioned the rules of inheritance in several places in the Qur’an. In Surat An-Nisa’ after mentioning these rules Allah says, “… a commandment from Allah and Allah knows every thing and is most Wise. These are the limits of Allah and he who obeys Allah and His Messenger, He will enter him in heavens beneath which rivers flow, abiding there forever and that is a great success. But he who disobeys Allah and His Messenger and transgresses His limits, He will enter him in hell to live there for ever and for him is a humiliating punishment.” (An-Nisa’: 12-14)

In a Hadith that is reported by Ahmad, At-Tirmidhi, Ibn Majah and Abu Dawud, the Prophet is reported to have said,
“A man or a woman may worship Allah for sixty years, but then when their death comes they hurt someone in the will and thus entitle themselves for the punishment in hell.”

Islam has special laws of inheritance. The Qur’an and Sunnah have specified the relatives who may inherit and have also specified their shares in the inheritance. A person is free to give whomsoever he/she wills during his or her life but after death every thing has to be distributed according to the laws of Allah. One can consult books on Islamic laws of inheritance to learn more details, but basic principles are as follows:

1. All outstanding loans or debts should be paid before the distribution of one’s wealth. The will of the deceased should be followed very strictly unless it is against the laws of Allah.

2. A person has a right to donate up to one third of his or her wealth to someone or some institution according to his/her choice. The rest of the inheritance must be distributed according to the rules of the Shari’ah.

3. Only a Muslim can inherit a Muslim. Non-Muslim relatives cannot inherit from Muslims, nor Muslims can inherit from their non-Muslim relatives. If a Muslim has a non-Muslim spouse or some other relatives and he wants to give something to that person then he must make a special will for that person and it should not be more than one third of his/her wealth. If a non-Muslim relative writes a Muslim’s name among his/her heirs and leaves something for a Muslim, a Muslim may take it as a gift, but should not claim it as a right in inheritance.

4. Only legitimate children can inherit from a person. Illegitimate or adopted children cannot inherit under the Islamic law of inheritance.

5. A murderer or a person who was accessory to the murder of a person cannot be a beneficiary of person whom he/she murdered.

6. Among the surviving relatives spouses, parents and children always inherit. If any of them is predeceased then other relatives receive their shares, but the
rule is that the near relatives exclude those who are a step distant from them in their relation to the deceased.

7. All shares must be according to the designated and specified percentage.

It is very important that Muslims in America (and the West in general) prepare their wills before their death. The reason is that in America (and the Western countries), the Islamic laws of inheritance are not recognized. If a Muslim dies intestate, i.e. without having made a will, then his/her wealth most probably will be distributed according to the state laws where he or she lived, not according to Allah’s laws. A Muslim in this case may be held responsible on the Day of Judgment because of his/her negligence in a very important matter.
there are other disadvantages in not writing a will. The states (in USA) may impose some taxes that one may be able to avoid by writing a will. In some cases these taxes reach to almost 70-80 % of one’s assets. Because the Probate courts often take a long time to make decision, the heirs may have to wait and may undergo some hardship. The court appointed executor may be a non-Muslim and the inventorying and appraisal of assets may involve a lot of unnecessary expenses.
Also, if the deceased leaves minor children, the court may appoint a non-Muslim as a guardian of his/her Muslim children. In case a Muslim dies without any relatives his/her wealth may not go to Islamic causes but may go to state and non-Islamic institutions. To avoid all these things it is necessary that we Muslims living in America or any other country where the Islamic laws of inheritance are not recognized, have our wills prepared.

There are some readymade Islamic will forms which can help as guidelines for preparing a will. Those who have substantial assets should consult an attorney to make their will properly legal in the state of their residence. Nowadays many people make a “Living Trust” instead of will. A Living Trust can also be developed on the model of will. In the living trust one has more flexibility of change as well as tax advantages. There are many attorneys who for a nominal fee can give you advice on living trusts.”
If you have any further comments, please don’t hesitate to contact us. May Allah guide us all to the straight path!