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Importance of Inheritance in Islam


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48 replies to this topic

#41 ummitaalib

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Posted 21 August 2015 - 12:54 PM

Status of Partnership upon the Death of a Partner
 
Q. My uncle was in a partnership with his brother & nephew. Recently he passed away. Does my uncle’s wife become a partner in the business? If not, what happens to my uncle’s partnership in the business?
 
A. In a business partnership, if a business partner passes away, the partnership of the business partner automatically terminates. The share of the deceased partner will form part of his estate will have to be distributed amongst his rightful heirs according to the Islamic Laws of Succession and Inheritance. However, if the heirs of the deceased partner mutually agree to enter into a new partnership with the other business partners, then they may do so. 
 
Thus, in this case, the wife of the deceased and the other heirs should decide if they wish for the estate to be distributed amongst themselves now of whether they wish to enter into a new partnership in the business.
 
And Allah Ta’ala Knows Best
Mufti Ismaeel Bassa
Confirmation:
Mufti Ebrahim Desai
 
Fatwa Department
Jamiatul Ulama (KZN) 
Council of Muslim Theologians

My avatar says:   "Laa tahzan, innallaaha ma'anaa" - Do not grieve, indeed Allah is with us [Qur'an 9:40]

 

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#42 ummitaalib

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Posted 09 October 2015 - 08:20 PM

Making wasiyyat to be buried in a specific place

 

Q: Can a muslim give instructions to his family on where he must be buried?

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A: Making wasiyyat to be buried in a specific place or a specific graveyard is a wasiyyat that is not binding in Shari'ah. However, despite it not being binding, if it is possible for the heirs to fulfil the wish of the deceased, then it is better for them to do so on condition that the place one wishes to be buried is not very far from the place one has passed away.

And Allah Ta'ala (الله تعالى) knows best.

والفتوى على بطلان الوصية بغسله والصلاة عليه

قال الشامي : ( والفتوى على بطلان الوصية ) عزاه في الهندية إلى المضمرات أي لو أوصى بأن يصلي عليه غير من له حق التقدم أو بأن يغسله فلان لا يلزم تنفيذ وصيته ولا يبطل حق الولي بذلك كذا تبطل لو أوصى بأن يكفن في ثوب كذا أو يدفن في موضع كذا أو يدفن في موضع كذا كما عزاه إلى المحيط (رد المحتار 2/ 221)

Answered by:

Mufti Zakaria Makada

Checked & Approved:

Mufti Ebrahim Salejee (Isipingo Beach)


My avatar says:   "Laa tahzan, innallaaha ma'anaa" - Do not grieve, indeed Allah is with us [Qur'an 9:40]

 

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#43 ummitaalib

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Posted 04 November 2015 - 05:56 PM

The Importance of Wills and Estate

 

The Shariah laws of wills and estate are by Divine Order. We do not have any discretion in that. Furthermore, wills and estates are one of those issues of Shariah where a person’s Abdiyyat (servitude) is really challenged and tested. It is human nature to be materialistically inclined.

 

A person works so hard to build his empire. He sacrifices his day and night and makes them one to earn his empire. His heart, soul and mind are in his wealth. Man wants to dispense his wealth as he wants but Shariah orders him to dispense his wealth as Shariah wants. It is a clash between an individual’s desire and the order of Shariah. The attitude of an obedient slave of Allah will be that whatever is in my possession belongs to Allah. It does not belong to me. It is only in my trust and custody. I have to channel it as Allah wants me to.

 

The issue of wills and estates is such an order that it has to be done correctly in one’s lifetime. If he does not do it correctly, it will be a sin that occurs after the death of a person. Now, the person cannot make Tawbah. Therefore, this is a once in a lifetime opportunity and it must be done correctly.

 

It has been reported from Jabir radiyallāhu ‘anhu that Rasulullah salallāhu ῾alayhi wasallam said, “Whoever passed away having left behind a Wasiyah has passed away upon the Sunnah and the right path. He has passed away with piety as a martyr and he has passed away in whilst being forgiven.” (Mishkaatul Masabih vol.2 pg.926; Maktabul al Islami)

 

Four stage execution of Estate

  1. Burial expenses
  2. Payment of debts
  3. Execution of bequests
  4. Paying heirs

 

What is included in the estate?

Whatever the deceased owned in his lifetime with a valid ownership according to Shariah will form part of his estate. That includes personal clothing, watches, glasses, rings, properties, businesses, vehicles etc. All of his possessions will form his estate on condition his wealth is recognized in Shariah. If one owns something that is Haram (like interest money) it will not form part of the estate.

 

What is excluded from the estate?

Haram wealth, Rahn or collateral, Insurances and endowment policies will all be excluded from the estate.

 

Burial Expenses:

  • All burial expenses are direct expenses of the estate.
  • It is not compulsory upon the trustees of the estate to accept outside assistance for burial expenses if all the heirs are adults. If some heirs are minors then too they are not bound to accept assistance if they don’t use the shares of the minors.
  • The expenses must be moderate. If the trustees were excessive in the burial expenses, they will have to compensate the estate for the excess amount.
  • Feeding the deceased’s family etc does not form part of the burial expenses. If the expense for feeding was paid from the estate, the trustees will have to pay that amount to the estate.

 

Wasiyah (Bequests):

Wasiyah is another expression of the mercy of Allah Ta’ala just before a person dies. Allah has promised a lofty position for people who give charity. Rasulullah salallāhu ῾alayhi wasallam has stated, “When a person dies, all of his actions cease except three, namely, continuous charity, beneficial knowledge or a pious child who prays for him.”

 

Paying of Debts:

A Hadith highlighting the importance of paying debts; It has been reported from Muhammad bin Abdillah bin Jahsh that he said, “We were sitting in the courtyard of the Musjid where the Janazas used to be placed and Rasulullah salallāhu ῾alayhi wasallam was sitting amongst us when he suddenly lifted his gaze towards the sky staring. Thereafter, he turned his gaze and placed his hand upon his forehead stating, ‘Subhanallah, Subhanallah, what severity has descended!’ We remained silent for that day and night but we only witnessed tranquility until the morning.” Muhammad (the narrator) then stated, “Thus I asked Rasulullah salallāhu ῾alayhi wasallam, ‘What is the severity that descended?’ He salallāhu ῾alayhi wasallam said, ‘In regards to debt. By the Being in whose grasp lies the life of Muhammad salallāhu ῾alayhi wasallam, if a person is martyred in the path of Allah and then brought back to life and martyred in the path of Allah and then brought back to life and martyred again in the path of Allah and then brought back to life and he had a debt upon him, he will not enter Jannah until he repays his debt!”

 

Abu Hurairah radiallahu anhu narrates that Rasulullah salallahu alayhi wasallam said, “Do you know who a pauper is?” The people stated, “A pauper is such a person who does not own a Dirham nor any other wealth.” He salallahu alayhi wasallam then said, “Verily the pauper of my Ummah will be one who will come on the day of Judgement will a lot of Salah and fasts and Zakah to his name. However, he swore such and such a person, slandered so and so, usurped the wealth of so and so, shed the blood of such and such person and he hit another person. Thus so and so will claim from his good deeds and the other person will also claim from his good deeds. If his good deeds come to an end before he is able to pay back all that he owes, then he will be burdened with the sins of the others which will be placed upon him and thereafter he will be hurled into the fire.”

 

As Muslims we believe in death, life after death and accountability in the court of Allah. One day we will die and give account of our actions to Allah. It is mentioned in a Hadith that a person’s feet will not move from the court of Allah until he answers some questions. One question will be, “How did you earn your wealth and where did you dispose of it?” This part of the Hadith also covers correctly preparing our wills and estates.

 

Source: www.daruliftaa.net


My avatar says:   "Laa tahzan, innallaaha ma'anaa" - Do not grieve, indeed Allah is with us [Qur'an 9:40]

 

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#44 ummitaalib

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Posted 06 January 2016 - 01:54 PM

Asking heirs to forfeit their inheritance
 
Q.My uncle has given his sons and daughters properties a few years ago as gifts in his lifetime. Now he is asking them not to claim from his  inheritance when he passes away  because he  has already given them their  inheritance and the children must leave the entire estate to his wife. Is this correct?
(Query published as received)
 
A.  As you have stated, the properties that your uncle had given to his children in his lifetime are gifts and belong to them. These properties will not form part of your uncle’s estate upon his demise. Whatever your uncle owns at the time of his demise will form part of his estate and has to be distributed according to the Islamic Law of Succession and Inheritance amongst all his rightful heirs.
 
It is not correct for him to instruct his children to forfeit their inheritance on account of him giving them certain assets in his lifetime. The properties that he has given them in his lifetime are not inheritance. These are gifts. Inheritance only comes into effect after a person passes away. The children of your uncle are legitimate Shar’ee heirs and have the full right to claim their shares of inheritance upon his demise.
 
Yes, if after the demise of their father, the children wish to cede their shares to their mother without any coercion, they may do so. Alternately, your uncle may gift whatever assets he wishes to his wife in his lifetime as he has gifted his children.
 
And Allah Ta’ala Knows Best
 
Mufti Suhail Tarmahomed
Confirmation:Mufti Moosa Salie

Fatwa Department

Jamiatul Ulama (KZN) 

Council of Muslim Theologians


My avatar says:   "Laa tahzan, innallaaha ma'anaa" - Do not grieve, indeed Allah is with us [Qur'an 9:40]

 

Blog: Fragranceofmusk

 

 

#45 ummitaalib

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Posted 20 January 2016 - 01:50 PM

Do children from a previous marriage inherit?

 

Q. I wanted to know about the distribution of my mothers estate according to Shariah. She was survived by sons and daughters from two marriages. There are no other heirs besides her children…no husband, father, mother etc. only children. Does her children from her first marriage inherit from her estate or do all of her children from both marriages inherit from her estate?
 
A. In the enquired case, if the only surviving heirs were her children from both marriages, then the entire estate would be distributed amongst her children. This is irrespective of whether the children of the deceased were born from the first or second marriage on condition that they are her actual children and not her stepchildren. Stepchildren do not inherit from their stepparent’s estate.
 
And Allah Ta’ala Knows Best
Mufti Ismaeel Bassa
Confirmation:Mufti Ebrahim Desai
 

Fatwa Department

Jamiatul Ulama (KZN) 

Council of Muslim Theologians


My avatar says:   "Laa tahzan, innallaaha ma'anaa" - Do not grieve, indeed Allah is with us [Qur'an 9:40]

 

Blog: Fragranceofmusk

 

 

#46 ummitaalib

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Posted 16 February 2016 - 12:57 PM

Inheritance of an unborn child
 
Q. My husband passed away and I am pregnant. Does my unborn child inherit from my husband’s estate?
 
A. The unborn child is entitled to his/her share of inheritance from the estate of his/her deceased father. As such, in this case, the estate of the deceased should be distributed after the child is born in order to ascertain the gender of the child and to distribute his/her share of inheritance accordingly. (Al-Lubaab 4/199)
 
And Allah Ta’ala Knows Best
 
Mufti Ismaeel Bassa
Confirmation:
Mufti Ebrahim Desai
 

Fatwa Department

Jamiatul Ulama (KZN) 

Council of Muslim Theologians


My avatar says:   "Laa tahzan, innallaaha ma'anaa" - Do not grieve, indeed Allah is with us [Qur'an 9:40]

 

Blog: Fragranceofmusk

 

 

#47 ummitaalib

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Posted 25 February 2016 - 01:14 AM

Does a wife still inherit if she remarries?
 
Q. If a wife remarries after the death of her husband and the estate of her husband was not distributed to her, is she still entitled to it? Or she does not qualify for it because she remarried another husband?
 
A. At the time of the death of a deceased person, all the heirs of a deceased person are entitled to their share of inheritance from the deceased’s estate, irrespective if the heirs remarry. As such, if a husband is deceased and his wife did not receive her share of inheritance from his estate, she will still be entitled to her share of inheritance from her deceased husband’s estate even though she remarried after his demise. (Ahsanul Fataawa 9/302)
 
And Allah Ta’ala Knows Best
 
Mufti Ismaeel Bassa
Confirmation:
Mufti Ebrahim Desai
 
(Islamic rulings on this Q&A newsletter are answered in accordance to the Hanafi Fiqh) 
 

Fatwa Department

Jamiatul Ulama (KZN) 

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My avatar says:   "Laa tahzan, innallaaha ma'anaa" - Do not grieve, indeed Allah is with us [Qur'an 9:40]

 

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#48 ummitaalib

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Posted 02 February 2017 - 01:33 AM

Discharging the fidyah for the missed Salaahs of the deceased

 

Q: What do the Ulama say about a person who passed away reciting the Kalimah but for most of his life didn't perform Salaah. What can the family do to compensate for his qadha Salaah? Please guide.

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A: Reciting the Kalimah at the time of maut is a sign of one passing away upon Imaan. However, this will not compensate and atone for leaving out Salaah for the past years. Leaving out Salaah is a major sin and severe warnings have been sounded in the Ahaadith for the one who forgoes his Salaah.

If the deceased had made a bequest that fidyah be given for his missed Salaah, then fidyah should be discharged on behalf of each Salaah from one third of the estate. If the deceased did not make a bequest, then the wealth of the estate cannot be given as fidyah on behalf of the missed Salaahs of the deceased. The entire estate will be wound and distributed among the heirs according to the stipulated shares of inheritance. If any adult heir wishes, he may discharge fidyah from his own share of the inheritance on behalf of the missed Salaahs of the deceased. However, this should be done with his free will and choice and without any coercion and force. Similarly, the family should make dua for the forgiveness of the deceased.

And Allah Ta'ala (الله تعالى) knows best.

( ولو مات وعليه صلوات فائتة وأوصى بالكفارة يعطى لكل صلاة نصف صاع من بر ) كالفطرة ( وكذا حكم الوتر ) والصوم وإنما يعطى ( من ثلث ماله )

قال الشامي : مطلب في إسقاط الصلاة عن الميت  قوله ( يعطى ) بالبناء للمجهول أي يعطي عنه وليه أي من له ولاية التصرف في ماله بوصاية أو وراثة فيلزمه ذلك من الثلث إن أوصى وإلا فلا يلزم الولي ذلك لأنها عبادة فلا بد فيها من الاختيار فإذا لم يوص فات الشرط فيسقط في حق أحكام الدنيا للتعذر بخلاف حق العباد فإن الواجب فيه وصوله إلى مستحقه لا غير ولهذا لو ظفر به الغريم يأخذه بلا قضاء ولا رضا ويبرأ من عليه الحق بذلك إمداد ثم اعلم أنه إذا أوصى بفديه الصوم يحكم بالجواز قطعا لأنه منصوص عليه وأما إذا لم يوص فتطوع بها الوارث فقد قال محمد في الزيادات إنه يجزيه إن شاء الله تعالى فعلق الإجزاء بالمشيئة لعدم النص وكذا علقه بالمشيئة فيما إذا أوصى بفدية الصلاة لأنهم ألحقوها بالصوم احتياطا لاحتمال كون النص فيه معلولا بالعحز فتشمل العلة الصلاة وإن لم يكن معلولا تكون الفدية برا مبتدأ يصلح ماحيا للسيئات فكان فيها شبهة كما إذا لم يوص بفدية الصوم فلذا جزم محمد بالأول ولم يجزم بالأخيرين فعلم أنه إذا لم يوص بفدية الصلاة فالشبهة أقوى واعلم أيضا أن المذكور فيما رأيته من كتب علمائنا فروعا وأصولا إذا لم يوص بفدية الصوم يجوز أن يتبرع عنه وليه والمتبادر من التقييد بالولي أنه لا يصح من مال الأجنبي ونظيره ما قالوه فيما إذا أوصى بحجة الفرض فتبرع الوارث بالحج لا يجوز وإن لم يوص فتبرع الوارث إما بالحج بنفسه أو بالإحجاج عنه رجلا يجزيه وظاهره أنه لو تبرع غير الوارث لا يجزيه نعم وقع في شرح نور الإيضاح للشرنبلالي التعبير بالوصي أو الأجنبي فتأمل وتمام ذلك في آخر رسالتنا المسماة ( شفاء العليل في بطلان الوصية بالختمات والتهاليل ) (رد المحتار 2/ 72)

Answered by:

Mufti Zakaria Makada

Checked & Approved:

Mufti Ebrahim Salejee (Isipingo Beach)


My avatar says:   "Laa tahzan, innallaaha ma'anaa" - Do not grieve, indeed Allah is with us [Qur'an 9:40]

 

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#49 ummitaalib

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Posted 12 July 2017 - 12:10 PM

Important Principle regarding Gifts and Inheritance

 

Q. A man passed away leaving behind a wife and four children. In his lifetime he had written a record of gifts that he had allotted for each child. However, he passed away before giving the gifts to them. Do the children first get the gifts allotted to them before the estate is wound up or do the gifts form part of the estate? 
 
 
A. Gifts and donations (termed Hibah in Arabic) are legal transactions as they effect transferral of ownership. As such there are legal conditions that are required for a gifting to be deemed as valid.
 
There are three essential conditions for a gift (Hibah) to be valid in Islam:
  1. An offer of the gift by the donor
  2. Acceptance of the gift by the beneficiary/donee
  3. Possession or control of the gifted item by the beneficiary
 
If any of these conditions are not found, the gifting will be considered incomplete and the gift will remain the property of the donor.
 
In the scenario described in the question, the required conditions are not found as the beneficiaries did not receive the gifts from their father. The necessary requirement of possession/control was not found. An intended future gift is not legally binding in Islam and with death this intention falls away. Upon death, a Muslim’s wealth is regulated by the Islamic laws of inheritance and not by their personal wishes.
 
Thus, according to Islamic Law, the said "gifts" will form part of the estate and will be distributed accordingly.
 
Should the heirs of the estate (provided they are not minors) choose to honour their father’s wishes and award the gifts, they may enter into a redistribution agreement to do so. However, it must be noted that this is their individual choice and no pressure may be exerted on them to fulfil the same.
 
And Allah Ta’ala Knows Best
 
Mufti Moosa Salie
 
Confirmation: 
Mufti Ismaeel Bassa
 
(The answer hereby given is specifically based on the question asked and should be read together with the question asked. Islamic rulings on this Q&A newsletter are answered in accordance to the Hanafi Fiqh.) 
 
 

Fatwa Department

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My avatar says:   "Laa tahzan, innallaaha ma'anaa" - Do not grieve, indeed Allah is with us [Qur'an 9:40]

 

Blog: Fragranceofmusk