Writing an Islamic Will

Transcription

1 Paper No. 01 الر ح يم الر ح م ن ا لل ب س م In The Name of Allah, the Beneficent and the Most Merciful اللهم على محمد وال محمد وعجل فرجهم يا كريم صل ISLAMIC WILL [WASIYYAH] AND INHERITANCE (materials for the most part taken from the book Writing An Islamic Will by Sayyid Muhammad Rizvi) 01] Is it necessary? Writing an Islamic Will Although the law, secular as well as Islamic, does not say that making a Will is a must but, by looking at the consequences of not having a Will, it is necessary both from the legal as well as from the religious standpoint. Firstly, if a person dies without a Will, the government will appoint an executor if there is a dispute among the family members. The executor s pay will come out of the Estate (money and property left behind by the deceased); and the government bureaucracy takes its time in getting things done. Secondly, from the sharia h point of view, your heirs may get more or less than the shares specified for them in Islam. By not writing a Will, you are leaving the door open for a non-islamic authority to distribute your Estate according to its own views. 02] Useful Hints The Holy Qur an put emphasis on writing a Will by every Muslim. The deceased s intent should be specified in clear terms. A black pen be used and not a pencil, if the Will is handwritten. The full legal name should be used. The Secular Law entails the proper signing of the Will. The Will must be signed by the Testator in the presence of two witnesses and a Public Notary. All pages must be initialled by the Testator at the bottom of each page. It is advisable to have more than one original copy. Photostat copy would not be acceptable. The Executor of your Estate is fully responsible for the administration of your Will. Be careful in your selection. The person you appoint should be willing and capable of executing this responsibility from both an Islamic and Legal viewpoints.

2 It isn t necessary to write the words Islamic or Shariah on the Will because that could cause undue trouble if the case goes to Court in the West if inheritors dispute the Will. To write a Will, you can type it on a computer and sign it in front of two witnesses. They will then sign it. They re signing to say they saw you sign it and it s you who signed it. They should put their addresses and business information (if applicable) on the Will also. If you write your Will in your own handwriting, there is no need for two witnesses Paper No. 02 الر ح يم الر ح م ن ا لل ب س م In The Name of Allah, the Beneficent and the Most Merciful اللهم على محمد وال محمد وعجل فرجهم يا كريم صل ISLAMIC WILL [WASIYYAH] AND INHERITANCE (materials for the most part taken from the book Writing An Islamic Will by Sayyid Muhammad Rizvi) 03] The One-Third Option Writing an Islamic Will After a person dies, what is the relationship between him and his Estate? There are three possibilities: He has full control over it through a Will. He has partial control over it through a Will. He has absolutely no control over it. Islam has taken the middle position. It says that when a person dies, he retains the right to decide about up to one-third of his entire Estate. But as far as the two-thirds is concerned, the deceased loses the right to distribute according to his wish. The Islamic Shari ah has given you the right to allocate one-third of your Estate in the manner you determine provided it does not contravene the Shari ah, but the balance of two-thirds will have to be distributed according to the dictates of the Shari ah. The right to distribute one-third of your Estate can be implemented only if such a provision is made in your Will.

3 If specific meritorious acts to be performed on your behalf after your death as stipulated by you exceeds your right of one-third, all the acts you specified would be proportionately decreased to bring them to the level of your right of one-third. You can do whatever you like with the one-third: give to a family-member(s), relative(s), friend(s) who is(are) in-need, charitable cause(s), etc. 04] Possible Use Of The One-Third For Charity For giving to those relatives or friends who have no share in the Estate For giving to those relatives whose share is less and you think that they are in need. Sample of an Islamic Will prepared by Sayyid Muhammad Rizvi will be sent next week, Insha- Allah Paper No. 03 الر ح يم الر ح م ن ا لل ب س م In The Name of Allah, the Beneficent and the Most Merciful اللهم على محمد وال محمد وعجل فرجهم يا كريم صل ISLAMIC WILL [WASIYYAH] AND INHERITANCE (materials for the most part taken from the book Writing An Islamic Will by Sayyid Muhammad Rizvi) Writing an Islamic Will 05] Sample of an Islamic Will In the name of God, the Beneficent, the Merciful This is the Last Will and Testament of me of made the day of I REVOKE all former Wills, Codicils, and Testamentary Dispositions previously made by me. 2. I APPOINT of and of to be the joint Executors and Trustees of this my last Will and Testament. BUT IF anyone or more of the above named persons should refuse to act, predecease me, or die before the trusts hereof have been fully performed, THEN I

4 APPOINT of to be the Executor and Trustee of my Will and Testament in the place and stead of anyone or more of the above named persons, and the expression, `my Trustee, used throughout include the Trustee for the time being, whether original or substitution. 3. I GIVE, DEVISE AND BEQUEATH all my real and personal property of every nature and kind, wheresoever situated, including any property over which I may have a general power of appointment, to my Trustees upon the following trusts, namely: a) subject to my express direction to the contrary, to use their discretion in the realization of my estate with the power to my Trustees to sell, call in or convert into cash at such time or times and in such manner and upon such terms, either for cash or credit or part cast and part credit as my Trustees may in their absolute discretion decide upon or to postpone such conversion of my estate or any part or parts thereof for such length of time as they may think best and I hereby declare that my said Trustees may retain any portion of my estate in the form in which it may be at the time of my death, notwithstanding that it may not be in the form of an investment in which Trustees are authorized to invest trust funds and whether or not there is liability attached to any such portion of my estate for such length of time as my Trustees in their absolute discretion deem advisable and my Trustees shall not be held responsible for any loss that may happen to my estate by reason of their so doing; b) to pay my just debts, funeral and other testamentary expenses, all succession duties, inheritance and death taxes, and all expenses necessarily incidental thereto, to be paid and satisfied by my Trustees as soon as conveniently may be after my death; c) to pay such religious taxes (like khums and kaffarah) and other expenses for hiring people to do qaza prayers and fasts; d) to divide and pay or transfer the balance of my estate as soon as is reasonably practicable after my death as follows: (i) to my eldest son,, my dress in which I die, my ring and my personal Qur'an; (ii) to my wife / husband... (iii) to my father... (iv) to my mother... (v) to my son,,... (vi) to my daughter,, The share of each child of mine as determined above shall be paid or transferred to such child of mine, if he or she is over the age of twenty-one at the time of my death, for his or her own use absolutely. If however, any child of mine, whether male or female, is under the age of twenty-one at the time of my death, my Trustees shall hold and keep invested the share of such child of mine and the income from and capital of such share or so much thereof as my Trustees in their discretion consider advisable shall be paid to or applied for

5 maintenance, education and benefit of such child of mine until he or she reaches the age of twenty-one, at which time my Trustees shall pay or transfer the amount remaining of the share of such child, if any, to such child for his or her own use absolutely. 5. I NOMINATE CONSTITUTE AND APPOINT of to be the Guardian of my infant children. I direct the Guardian of my infant children to raise them as Muslims according to the rules, customs and teachings of the Shi'ah Ithna `Ashari sect of Islam. 6. In the event that my said wife should predecease me, then I direct my Trustees to distribute the share that my wife would have received had she survived me amongst my parents and my children alive at my death in the same proportion and in the same manner as provided for in paragraph 3 (d) (i, iii to vi) of this my Will and the provisions of paragraph 4 of this my Will shall apply mutatis mutandis. 7. In the event that my mother or my father or both my mother and my father should predecease me, then I direct my Trustees to distribute the share that my mother or my father or both my mother and my father would have received had they survived me amongst my wife and my children alive at my death in the same proportion and in the same manner as provided for in paragraph 3 (d) (i, ii, v to vi) of this my Will and the provisions of paragraph 4 of this my Will shall apply mutatis mutandis. IN WITNESS WHEREOF I have to this my Last Will and Testament set my hand this day of, SIGNED by the Testator and published and declared as and for his last Will and Testament, in the presence of us both present together at the same time who at his request and in his presence and in the presence of each other have hereunto subscribed our names as witnesses. Signature of Witness Name: Address: Occupation: Signature of Witness Name: Address: Occupation: الر ح يم الر ح م ن ا لل ب س م In The Name of Allah, the Beneficent and the Most Merciful اللهم على محمد وال محمد وعجل فرجهم يا كريم صل ISLAMIC WILL [WASIYYAH] AND INHERITANCE (materials for the most part taken from the book Writing An Islamic Will

6 by Sayyid Muhammad Rizvi) Paper No. 04 Inheritance 06] What is an "Estate"? An "Estate" is the collective name for everything that you own when you die. The Estate consists of the following: all properties, goods and investments that are in your name. half of the specified portion of the goods and investments in which you are a coowner (e.g., with a spouse). Q) What about life insurance? Is it included in the Estate? A) Usually the beneficiaries are the spouse and/or the children. Life insurance is not included in the Estate because the money doesn t exist until the person dies. Since the beneficiary s/beneficiaries name is/are on the Life Insurance policy, it therefore belongs to them. It is not counted in the Estate. 07] Who can Inherit? After disbursing the one-third according to your Will, your remaining Estate is to be divided among the heirs mentioned in the Holy Qur an: the surviving spouse and blood relatives. No one can prevent the spouse from inheriting his or her specified share from the Estate of the deceased spouse. The share of the spouse has to be given out first before distributing the remainder among the blood relatives. As for the blood relatives, they are of different degrees. First Degree: Second Degree: Third Degree: Your parents and your children. Your grandchildren qualify as first degree relatives only if both your parents and your children have predeceased you. Your grandparents and your siblings Your nieces and nephews qualify as second degree relatives only if no one of your grandparents and your siblings are alive. Your uncles and aunts. If anyone from your first degree relatives is alive, no other relatives from the second or third degree will get anything from your Estate.

7 Paper No. 05 الر ح يم الر ح م ن ا لل ب س م In The Name of Allah, the Beneficent and the Most Merciful اللهم على محمد وال محمد وعجل فرجهم يا كريم صل ISLAMIC WILL [WASIYYAH] AND INHERITANCE (materials for the most part taken from the book Writing An Islamic Will by Sayyid Muhammad Rizvi) 08] The Circle of Heirs Inheritance See the diagram below: Even a single person alive from the inner circle will exclude those who are outside the circle. Even a single person alive from the smaller square will exclude those who are outside the square. The surviving spouse can never be excluded by any blood relative.

8 09] Two-Thirds of your Estate The two-thirds must be divided according to the shares specified by the Shari'ah. This law is part of the overall system which Islam has introduced for the distribution of wealth in the society. Before distributing the Estate among the heirs, the executor of the Will has to pay all the debts, legal as well as religious. (religious debts mean the unpaid Khums, Zakaat, Kaffarah and the Wajib Hajj.) Even the Wajib portion of the funeral expenses comes out of the Estate before it is distributed among the heirs. (Wajib portion of the funeral expenses means, Kafan, water for Ghusl, rental of space for Ghusl, Coffin, Grave, transportation, and other charges paid to the Funeral Home and the Government). Since the Mustahab commemorative services like Fatiha, Qur an-khwani or Majlises normally arranged for the Thawab of the deceased are not Wajib, such expenses will be paid from the one-third if it is so provided in the Will of the deceased. Otherwise, it will be up to the heirs to decide and pay for them. After settlement of all the liabilities of the deceased, the remaining two-thirds of your Estate will be distributed according to the Islamic Shari ah. The Holy Qur an, a ring(s) and a sword of the deceased, and the clothes worn by him, become the property of the eldest son. I have not seen any mention that in the absence of a son, they become the property of the eldest daughter. Q) Is there khums on inheritance? A) Khums is not liable on inheritance except when one inherits from the least expected person; for example, a very remote relative from whom one does not expect to inherit Paper No. 06 الر ح يم الر ح م ن ا لل ب س م In The Name of Allah, the Beneficent and the Most Merciful اللهم على محمد وال محمد وعجل فرجهم يا كريم صل ISLAMIC WILL [WASIYYAH] AND INHERITANCE (materials for the most part taken from the book Writing An Islamic Will by Sayyid Muhammad Rizvi) Inheritance

9 10] QADA PRAYERS & FASTS FOR DECEASED FATHER If one's father did not perform some of his obligatory daily prayers and some of his Mahe Ramadan fasts and did not care to do qada', in spite of being able to do so then, after his death, it is upon his eldest son, as an obligatory precaution, to either perform them himself or hire someone to perform them, provided that his father did not leave them as a deliberate act of disobedience (for example, he just could not be bothered or felt that Allah would forgive him for not making up). In the event that the father did not specify so in his will in regard to his 1/3rd right of allocation of his estate, the questions that arise are: Q1) If he did not leave behind any son, is it obligatory upon his heirs to get his qada' salaat and qada' Mahe Ramadan sawm performed by hiring a person to do so? A1) Yes, it is obligatory to get all his qada obligatory salaat and qada Mahe Ramadan sawm performed. Q2) If the answer to question 1 is yes, then should the expenses come out of the estate before it is distributed among the heirs? A2) Yes, from the estate before distribution. The qada prayers and/or fasts of his mother is not obligatory upon him, though it is better if he performs them. If the eldest son wishes to offer the qada prayers of his mother, then in the matter of loud or low whispering recitations in the prayers, he will follow the rules which apply to him. So he should offer the qada prayers of his mother for Fajr, Maghrib and Isha prayers loudly. If the eldest son is unsure whether or not his father had any qada salaat or qada Mahe Ramadan sawm, he is under no obligation to perform them. If the eldest son knows that his father had a certain number of qada prayers and/or qada Mahe Ramadan fasts, but he is unsure whether his father performed them or not, he should perform them as an obligatory precaution. If a dying person makes a will that someone must be hired to perform his qada' prayers and/or fasts and if his will is valid, then it is not obligatory on the eldest son to perform them himself.

10 If at the time of his father's death the eldest son was not of the age of legal responsibility (baligh) or he was insane then, when he becomes baligh and/or sane, it is not obligatory upon him to perform his father's qada prayers/fasts. If the eldest son dies before performing the qada ' prayers/fasts of his father, it is not obligatory upon the second son to perform them. If a father had not observed obligatory fasts other than the fasts of the month of Ramadhan, like a fast of Nadhr, the recommended precaution is that his eldest son should observe its qada Paper No. 07 الر ح يم الر ح م ن ا لل ب س م In The Name of Allah, the Beneficent and the Most Merciful اللهم على محمد وال محمد وعجل فرجهم يا كريم صل ISLAMIC WILL [WASIYYAH] AND INHERITANCE (materials for the most part taken from the book Writing An Islamic Will by Sayyid Muhammad Rizvi) 11] During your Lifetime. Inheritance You can give, during your lifetime whatever you wish to whomever you desire without any limitation. There is a Hadith where Prophet Muhammad (s.a.w.w.) has said: A man giving in alms one piece of silver in his lifetime is better for him than giving one hundred when he is about to die. Imam Amir-ul-Mu'mineen Ali [a.s.] said: "O' children of Adam! Be your own representative in the matter of your property and do with it whatever you [would] like to be done with it after your death." (Nahjul-Balagha, Saying No. 255) The meaning of the statement is that if a person desires that after his death a portion of his property should be spent on charity, he should not wait for his death but spend it wherever he desires during his lifetime.

11 12] Executor or Executrix Appointing an Executor or Executrix is very important to administer the distribution of your Estate. You can appoint your spouse and/or another family member as the executor of your Will. There is nothing wrong with this. The only conditions which are necessary for an executor/executrix are that he or she should be baligh, sane, and a Muslim. It is not necessary for him/her to be adil; trustworthiness would be a sufficient quality for an executor/executrix. If you accept to be an executor or executrix for someone s Will, then it becomes wajib for you to fulfill your duty. You can only reject this responsibility while the testator is alive; you cannot reject this role after his/her death Paper No. 08 الر ح يم الر ح م ن ا لل ب س م In The Name of Allah, the Beneficent and the Most Merciful اللهم على محمد وال محمد وعجل فرجهم يا كريم صل ISLAMIC WILL [WASIYYAH] AND INHERITANCE (materials for the most part taken from the book Writing An Islamic Will by Sayyid Muhammad Rizvi) 13] Guardian of Children Inheritance In the West, it is very important to write in your Will about the guardian and custodian of your children (if they have not reached the legal age). Under normal circumstances, the surviving spouse is made the guardian, and this is indeed the best decision. Here, for the sake of record, I would like to mention the conditions which must be found in the guardian of your children. The guardian must be a Muslim, sane, and trustworthy. Those who have the right of custody of the children (in order of preference) are: father, mother, paternal grandfather; and then anyone specifically appointed as the guardian of the children. However, the duty of maintenance for the children (that is, payment for their upkeep) falls upon the following (in order of preference): father; paternal grandfather; mother; other grandparents collectively.

12 The last person in this list of guardian can be from outside the family, but one must be very careful in selecting such a person. The most important condition is that he/she, besides being trustworthy, must also be a Shia Ithna-Asheri Muslim who will raise the children according to the teachings of Islam governed by Shia Ithna-Asheri faith. This is absolutely important in order to safeguard the children from being taken over by Government Agencies which place them in foster homes according to their own standards and outlook. 14] Joint Account According to laws in the West, with the death of one spouse, the money becomes the property of the surviving spouse. Such a transfer of money is not valid in Islam; Islamically, half of the money in that account becomes part of the surviving spouse and the other half will become part of the deceased s Estate. 15] Clothes and Jewelry 16] Cars The best course of action would be to give your wife as gift all jewelry and clothes during your lifetime. If you have two cars and both the cars are in your name, you should give one car to your wife as a gift which would then be her property while you continue paying towards the loan. After your death, the car that you gave her as a gift will remain her property while the second car which is in your name will be included in your Estate Paper No. 09 الر ح يم الر ح م ن ا لل ب س م In The Name of Allah, the Beneficent and the Most Merciful اللهم على محمد وال محمد وعجل فرجهم يا كريم صل ISLAMIC WILL [WASIYYAH] AND INHERITANCE (materials for the most part taken from the book Writing An Islamic Will by Sayyid Muhammad Rizvi) Inheritance 17] Wife s Share in the Real Estate

13 A house jointly-owned by a couple is divided according to the Shari ah into two: half becomes part of the Estate of the deceased, and the other half of the property belongs to the surviving spouse. Secondly, according to the Shari ah, the wife is not entitled to inherit the land of her husband (whether agriculture land or a residential lot); she only inherits the house on the land according to her proportional share of inheritance. This creates practical problems: a house cannot be divided; if other heirs insist on their share in the house, then it has to be sold and the money divided accordingly; it is also difficult to assess the value of the land separate from the house, etc. Therefore, I suggest you should give the house to your wife as a gift during your lifetime with the condition that this gift must be returned to the husband if the marriage ends in divorce or if the wife dies before the husband. This is known as conditional gift (Hiba Mashruta). 18] Charts of 36 most common Cases The charts which will be given next week will explain the shares of heirs in 18 most common cases. For each case, two charts have been given: one shows you the shares of your heirs out of 100% of your Estate (if you do not wish to exercise the one-third option), and the other shows you the shares of your heirs out of two-thirds of your Estate (if you wish to exercise the one-third option). Find the chart explaining 36 most common divisions of an Estate that fits your situation and prepare your Will accordingly to the sample given in Paper No. 3. List of Charts: explaining 36 most common divisions of an Estate will be sent next week, Insha-Allah الل ه م ص ل ع ل ى م ح م د وآل م ح م د وع ج ل ف ر ج ه م ISLAMIC WILL [WASIYYAH] AND INHERITANCE (materials for the most part taken from the book Writing An Islamic Will

14 by Sayyid Muhammad Rizvi) Paper No. 10 Inheritance 19] List of Charts: explaining 36 most common divisions of an Estate are given below. Two Generation Heirs (Spouse + Children) 1. Wife + Daughter + Son wife (1/8); male child gets twice the share of female child

15 2. Husband + Daughter + Son husband (1/4); male child gets twice the share of female child

16 3. Wife + Daughter + Sons wife (1/8); male child gets twice the share of female child

17 4. Husband + Daughter + Sons husband (1/4); male child gets twice the share of female child

18 5. Wife + Daughters + Son wife (1/8); male child gets twice the share of female child

19 6. Husband + Daughters + Son husband (1/4); male child gets twice the share of female child

20 Three Generation Heirs (1 Parent + Spouse + Children) 7. Parent + Wife + Daughter + Son father or mother 1/6; wife 1/8; male child gets twice the share of female child

21 8. Parent + Husband + Daughter + Son father or mother 1/6; husband 1/4; male child gets twice the share of female child

22 9. Parent + Wife + Daughter + Sons father or mother 1/6; wife 1/8; male child gets twice the share of female child

23 10. Parent + Husband + Daughter + Sons father or mother 1/6; husband 1/4; male child gets twice the share of female child

24 11. Parent + Wife + Daughters + Son father or mother 1/6; wife 1/8; male child gets twice the share of female child

25 12. Husband + Daughters + Son father or mother 1/6; husband 1/4; male child gets twice the share of female child (Parents + Spouse + Children)

26 13. Father + Mother + Wife + Daughter + Son father 1/6; mother 1/6; wife 1/8; male child gets twice the share of female child

27 14. Father + Mother + Husband + Daughter + Son father 1/6; mother 1/6; husband 1/4; male child gets twice the share of female child

28 15. Father + Mother + Wife + Daughter + Sons father 1/6; mother 1/6; wife 1/8; male child gets twice the share of female child

29 16. Father + Mother + Husband + Daughter + Sons father 1/6; mother 1/6; husband 1/4; male child gets twice the share of female child

30 17. Father + Mother + Wife + Daughters + Son father or mother 1/6; wife 1/8; male child gets twice the share of female child

31 18. Father + Mother + Daughters + Son father or mother 1/6; husband 1/4; male child gets twice the share of female child Image:

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43 Concluded: Wal-Hamdu Lilla-h