Distribution of estate

Category: 

Inheritance

According to Madhhab: 

Hanafi

Reference: 

1440-215

Question: 

Kindly advise on the
following Inheritance issues faced by our family on the passing of our father.
Marhoom left behind a wife, 2 sons and 1 daughter.

1.      

What is the manner in which the estate should be distributed to the
heirs after having discharged burial expenses and debts?

2.      

Marhoom’s one son is from a previous marriage. If this son refuses to
accept being part of the estate distribution, how should his portion be
discharged then?

3.      

Marhoom was bed ridden in the last few weeks before passing… How should
his missed salaah be calculated and should this be discharged from his estate?

4.      

Marhoom had made verbal bequests as follows but no transfer of ownership
was done after these verbal requests were made:

a.      

The wife will inherit the house she is currently living in. (mentioned
verbally in the presence of witnesses and in writing in an non-Islamic will)

b.      

The son will inherit the car that he was using whilst his father was ill
(mentioned verbally in the presence of a witness)

5.      

Does personal clothing items, shoes etc form part of the deceased
estate? If so, how does one place value to such items and who decides on the
value?

6.      

What is the Shar’iah ruling regarding the amount of time a family has to
wind up the estate? We have heard that the father could be placed in difficulty
in the Qabr if his estate distribution is delayed? Kindly elaborate.


Answer: 

(1). After settlement of the primary dues of the deceased such as his burial expenses and debts (if any), and from one- third (1/3) of the residue the implementation of his Wasiyyah with regards to the bequest of missed Salaah, Haj etc. (if applicable), the net estate will then be distributed amongst the heirs as follows:

Wife

5 shares 

12.5%

Son 1

14 shares 

35%

Son 2

14 shares 

35%

Daughter

7 shares 

17.5%

Total

40 shares 

100%

(2). An heir does not have an option in terms of accepting or refusing his/her share of inheritance as these shares are ordained by Allah Taala and the inheritor inherits his/her share automatically. (Shaami Vol. 6 Pg. 758) 

However, an heir may dispose of his/her share of inheritance after taking possession of it as he wishes, whether by gifting it to one or all of the other heirs or by giving it out in charity.

(3). If the Marhoom had made a Wasiyyat to pay his missed Salaahs then this will be compulsorily be done in conjunction with any other valid Wasiyats that he may have made within one third of the estate. In other words, this will have to be discharged from one-third of the estate (after settling burial expenses and debts). The number of Salaahs should be estimated and calculated with the help of family members that were present during the Marhoom’s sickness such as the Marhoom’s spouse. If the Marhoom did not make a Wasiyat to this effect, then the heirs may voluntarily, from their own shares, pay the Fidya for the Marhoom’s missed Salaahs. It is hoped that in this way too, he will Insha-Allah, be absolved of the outstanding obligation/s. However, this is not compulsory upon the heirs. (Shaami Vol. 6 Pg. 760). The Fidyah of each Salaah (5 Fardh and 1 Witr, in total 6 Salaahs per day) is the equivalent to the amount of Sadaqatul-Fitr.

(4). Since the wife and son are both from the Marhooms Shar’ie heirs, it was not correct for the Marhoom to make such bequests in their favour. (Shaami Vol. 6 Pg. 649). In principle, these Wasiyyats/bequests were not valid and both the house and car will form part of Marhoom’s estate to be distributed amongst all the heirs. However, if the rest of the heirs (provided that they are Baaligh), give consent and approval for these Wasiyyats, then they may be implemented and the house and car will accordingly be designated to the nominated beneficiaries.

(5). All the Marhooms worldly belongings form part of the estate. The heirs collectively can ascertain the market value of the belongings or attach such a value that all the heirs mutually agree upon. If there are certain personal items (e.g. old clothes) that the heirs would like to give away on behalf of the Marhooom as charity to the poor, then this may only be done with the permission of all the adult heirs as they are all owners in every item that the Marhoom left behind relative to the amount of shares that they are entitled to. (Albah Al-Raa'iq Vol. 8 Pg. 556). 

(6). Shariat encourages us to distribute and dissolve the estate of the deceased as soon as possible. One should diligently, under the guidance of an experienced Aalim distribute the estate in accordance with Shariat. Fulfilling the Marhoom’s debts should be priority as this is the cause for the Mayyit suffering in the Qabr. The following Hadith which is found in Tirmidi Shareef informs us of this:-

حَدَّثَنَا مََْمُودُ بْنُ غَيْلَانَ قَالَ: حَدَّثَنَا أَبُو أُسَامَةَ، عَنْ زَكَرِيََّّ بْنِ أَبِِ زَائِدَةَ، عَنْ سَعْدِ بْنِ إِبْرَاهِيمَ، عَنْ أَبِِ سَلَمَةَ، عَنْ أَبِِ هُرَيْرَةَ قَالَ: قَالَ رَسُولُ اللََِّّ صَل ى اللََُّّ الترمذي ص ( » نَفْسُ المؤُْمِنِ مُعَلَّقَةٌ بِدَيْنِهِ حَتََّّ يقُْضَى عَنْه « : عَلَيْهِ وَسَلَّمَ 381 ج 3 رقم 1078 )

Translation: Nabi Sallallahu Alaihi Wasallam said: "The soul of a believer remains suspended due to his outstanding debt/s until it is discharged on his behalf"

Whatever remains after discharging burial expenses, debts and bequests is the right of the heirs. Their rights should thus be fulfilled as timeously and amicably as possible. Due to legal constraints of winding up the estate through the legal channels, there could be a delay that is beyond the control of the executors and heirs, but that would be acceptable. However, the dissolution of the estate should be treated as a matter of urgency and there should be no unwarranted delay, as it entails the rights of others and thus should be fulfilled as swiftly as possible.

AND ALLAH TA'AALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST

ANSWERED BY: Ebrahim Patel 

CHECKED AND APPROVED BY: Mufti Muhammed Saeed Motara Saheb D.B. 

Islamic Date:2 Jumaadal Ula 1440 - English Date: 9 January 2019

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