(#130)
السلام عليكم ورحمة الله وبركاته
Recently shares have come to our attention and we cannot get a clear answer. We as parents want to be equal but what’s the correct way? We have 2 boys and 2 girls so we’re basically searching for an answer on the correct procedure to divide shares upon our death.
Can anyone help please?
Answer
بسم الله الرحمن الرحيم
السلام عليكم و رحمة الله و بركاته
حامدا و مصليا و مسلما
Muhtaram
We have received your question regarding the distribution of shares, our response is as follows:
We have understood from your question that you are enquiring about the Islamic way of how ones inheritance is to be distributed.
We will base our answer on the above understanding :
Every Muslim must prepare and leave a Will that is in accordance with Islamic guidelines so that the estate can be distributed according to Islamic law.
All the wealth left behind by a person at the time of their death, which includes everything they owned, such as cash, gold, silver, properties, cars and all contents, every big and small item that belonged to them at their time of death will be totalled and termed as the “estate (Taraka)”.
From this ( what is left after a person has passed away ) , after taking out burial expenses, if there are any debts owed to fellow human beings, they must be paid off.
Once the burial expenses have been covered and the debts have been paid off then ones Wasiyyah will be fulfilled (if made) from no more than one third of the estate and the remainder of the estate will be distributed amongst the heirs.
One important aspect worth mentioning here is that many Muslims are mistaken in believing that, writing a Will means distributing one’s wealth and estate amongst the inheritors during one’s lifetime.
This is incorrect, as making a Will does not mean one must divide one’s wealth amongst the various inheritors in one’s life; rather, one must merely stipulate in the Will that “upon my death, my executors will distribute my wealth according to Shariah”. One may also state that this will be determined by a local Alim or Mufti, who will be contacted and appointed by my executors upon my death.
The reason behind this is that the inheritance portions have been determined and allotted by Allah Ta’ala in the Qur’an. These portions vary according to who is alive at the time of one’s death. Death with leaving parents behind will differ from passing away after the parents have passed away, in that the inheritance portions will be different in both cases.
As such, one cannot determine in one’s lifetime as to how much percentage of one’s wealth will be exactly allocated to each individual, for one is unaware who will be alive at the time of one’s death. Even the death of one person can make a big difference in the division and distribution of the estate.
The beauty of Shariah is its simplicity and certainty. When you are writing your Islamic Will, you do not have to try and figure out which of your relatives will still be alive when you die in order to make sure that they will receive something. Whoever administers your estate will ascertain (in collaboration with a knowledgeable Alim/Mufti) which of your relatives are still alive and what fixed shares they are automatically entitled to inherit by applying the criteria of Shariah.
However, if a person wishes to distribute his assets during his lifetime then this will be termed as a Hiba (gift) in Shariah. Inheritance only comes into effect after a person passes away whilst a gift takes place whilst one is alive.
If one wishes to distribute ones assets to one’s children (during one’s life) then this is permissible, generally in such a case a person should distribute equally amongst his children.
Once, Hadrat Nu’man bin Bashir radiyallahu anhu was gifted an asset by his father (Bashir – Radiyallahu Anhu) and they went to Rasulullah (Sallallahu Alaihi Wasallam) to be the witness to the gift. Rasulullah (Sallallahu Alaihi Wasallam) asked Sayyiduna Bashir (Radiyallahu Anhu): “Do you have any other children?” He replied: “Yes”. Rasulullah (Sallallahu Alaihi Wasallam) then asked him: “Have you also given them the same?” When he replied in the negative, Rasulullah (Sallallahu Alaihi Wasallam) became upset and said: “Do not make me a witness to this! I will not be a witness to oppression!”
(Sahih Muslim, Hadith #: 1623).
Based on this, the Fuqahaa (Jurists) have stated the importance for parents to be equal when gifting to their children. Yes, there are certain situations where the parents can give preference to one child over the other. In such situations, it is advisable to consult the Ulama for guidance.
Therefore, in conclusion one should draw up a Islamic Will and state that one wants for his estate to be distributed according to Shariah. Please refer to the Darul Ifta Website for a Will template.[1]
We hope this answers your question , if you require any further explanation or guidance then please email the Darul-Ifta back.
And Allah Ta’ala knows best
Answered by:
(Mufti) Abdushakoor Salim
4th Sha’ban 1443
8th March 2022
Checked and approved by:
(Mufti) Muhammad Irshad Motara
4th Sha’ban 1443
8th March 2022
[1] https://darulifta.org.nz/wp-content/uploads/2021/10/Last-Will-and-Testament-2021-revised.pdf
