Dr. Monzer Kahf, a prominent Muslim economist and counsellor, answers: “The last will in Shari’ah is defined as a grant from Allah to a person to earn more reward before death, so that he/she can bequeath up to one third of the net estate to charities and beloved persons other than heirs.
But there is an added meaning to last wills for Muslims who live under non-Islamic laws, such as our case in the United States until we succeed in getting an Islamic inheritance law enacted for us by the congress like what Muslims in Kenya and India did. This added meaning is that since state laws allows distribution by last wills (or living trusts), IT IS A SHARI’AH OBLIGATION ON US TO MAKE A WILL (OR TRUST) AND TO MAKE THE DISTRIBUTION IN ACCORDANCE WITH SHARI’AH.
The last point to be clarified here is the definition of the estate of the deceased: any property recorded in names of husband and wife together must be treated as owned by both of them on the basis of half/half regardless of who paid for buying it. This means that if he left only one real estate property (as it looks from your statement) and it was in both names, his estate is only one half of the property, the other is owned by the wife, even though he might have paid for it. The reason is: as long as they did that recording by choice (by law, they could always do it otherwise) it must be interpreted, in Shari’ah, as one who paid more has granted the other the difference as a gift.”