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Rules Regarding Will (Wasiyyat) from Islamic laws book

According to Islamic law, a person that dies and leaves inheritance may apportion one-third of their estate as per their wishes, and the remaining two-thirds are distributed automatically according to pre-set inheritance laws (see the Rulings section of the website for more information on the Islamic laws relating to inheritance).


Rulings

Introduction

 Ruling 2711 - A ‘will’ is defined as the instructions of a person for certain acts to be carried out on his behalf after his death, or that he states that some of his wealth becomes the property of an other after his death, or that the ownership of his property be transferred to someone, or that it be used in acts of charity and welfare, or that he appoints someone as guardian and custodian of his children and/or dependents. The term for the person to whom a will is directed is executor (wasi).

 Ruling 2712 - For someone that is unable to speak, if he can make himself understood by means of signs, he can make a will for anything he likes; and even if a person who can speak makes a will by means of signs and makes himself understood, his will is valid.

 Ruling 2713 - If a written instruction is found with the signature or stamp of the deceased, then as long as there exists a suitable context that it is a will, it must be followed.

 Ruling 2714 - Someone that leaves a will must have reached the age of legal responsibility (baligh) and sane, and not an asinine/dim person, and the will must be done out of free will. Thus, the will of a non-baligh child is not valid; however, if the child has reached ten years of age and has left a will for his blood-relatives or has left donations to general charities then in these two instances his will will be valid. Otherwise, if he has left a will for other than his blood-relatives, or if, say, a child of seven years of age leaves a will regarding a portion of his wealth, to consider this a correct will is problematic [i.e. it cannot be deemed to be correct] and precaution must be adopted [and the will must not be implemented]. If a person is asinine/dim then his will regarding his wealth is not effective, but is effective in matters other than wealth, in matters related to the aftermath of his death.

 Ruling 2715 - If someone has attempted suicide, for example through self-inflicted injury intended to cause death or by taking poison that would cause death, and leaves a will for part of his wealth to be distributed in a particular manner and then dies, his will is not valid. However, if his death was part of jihad in the way of Allah, then there is no problem [and the will is valid in all respects].

 Ruling 2716 - If a person makes a will for part of his estate to be given to another person and that other person accepts, whether in the lifetime of the testator or after his death, he will become the owner of that after the testator’s death as long as that amount does not exceed one-third of the testator’s estate. 

Ruling 2717 - When a person observes the signs of death [and feels that his death is approaching] he must immediately return any trusts and possessions of people to their owners or must inform them as per the details in ruling 2361. And if he is indebted to anyone and the due date for the repayment of the debt has not yet arrived, or that it has arrived but the one owed the debt is not demanding payment, or that he is demanding payment but the indebted does not have the ability to pay, then he must act in a way that he is confident that after his death the debt will be paid; for example in the instance that his debt is unknown to others he can make a will [regarding this debt] and have it witnessed. However, in the instance that he is able to pay the debt, and the deadline has arrived, and the one owed the debt is demanding payment, then he must pay it immediately even if the signs of death are not present.

 

Ruling 2718 - Someone that observes the signs of death [and feels that his death is approaching], if he owes khums, zakat, or radd-e madhalim, other religious dues and cannot pay them at that moment, but does have wealth or deems it probable that someone will settle these dues on his behalf, must act in a way that he is confident these dues will be paid on his behalf after his death; for example he makes a will for a trustworthy person [to do this]. And the same applies if hajj is compulsory for him and he cannot at that moment find a proxy. However, if he can discharge his religious debt at that moment then he must do so immediately, even if the signs of death are not present.

 Ruling 2719 - Someone that observes the signs of death [and feels that his death is approaching], if he has lapsed (qadha) prayers and fasts, must act in a way that he is confident these will be performed on his behalf after his death; for example he leaves a will that from his wealth someone is hired to perform these. In fact, even if he has no wealth but he deems it probable that someone will perform these on his behalf without payment, then it is still compulsory for him to leave a will regarding this. However, if he has someone – such as an eldest son – and knows that if he informs his son of the qadha prayers and fasts then the son will perform them on his behalf – then this is sufficient, i.e. he only has to inform his son of the details of the qadha and he does not need to leave a will regarding this.

 

Ruling 2720 - Someone that observes the signs of death [and feels that his death is approaching], if he has deposited property with some other person or has concealed it in some place of which his heirs are not aware, then based on obligatory precaution he must inform them about this. And it is not necessary for him to appoint a guardian and administrator for his minor children except when it is feared that their property may perish, or they themselves may be ruined without an administrator, in which case, he must appoint a trustworthy administrator for them.

 Ruling 2721 - The executor must be sane, and must be trustworthy in matters relating to the testator, and – according to obligatory precaution – [must be trustworthy] in matters relating to others. And, according to obligatory precaution, the executor of a Muslim must be a Muslim. To appoint a non-baligh child on his own for putting the will into effect is not proper [i.e. not permitted] based on obligatory precaution if the intention of the testator is that the child can exercise discretion without permission of a guardian. His discretions must be done with the permission of a mujtahid. But if the intention of the testator is that the child can put the will into effect after having become baligh, or with the permission of a guardian, then there is no problem.

 Ruling 2722 - If a person appoints more than one executor and allows each of them to execute the will independently, it is not necessary for them to obtain permission from one another [for the execution of the will]. And if he had not given any such permission – then whether he had or had not said for all of them to execute the will jointly – they must execute the will in consultation with one another. And if they are not prepared to execute the will jointly, then as long as their unwillingness is not based on any religious prohibition, a mujtahid can force them to do so, and if they do not obey his orders or any of them has a religious excuse for not being prepared to act jointly, then the mujtahid can replace any one of them with the appointment of an other.

 Ruling 2723 - If a person retracts [all or part of] his will, for example he first says that one-third of his property should be given to a person, and then says that it should not be given to him, the will [or that part] becomes void. And if he changes his will, for example he appoints an administrator for his children, and then replaces him with another administrator, his first will becomes void, and his second will must be acted upon.

 Ruling 2724 - If a person does something by which it becomes known that he has retracted his will, for example he sells a house which he had willed to give away to someone, or appoints someone as his agent to sell it in spite of his original wish, the will becomes void.

 Ruling 2725 - If a person makes a will that a particular thing be given to someone, and later changes it to say that half of that same thing should be given to another person, then each of them must receive half of that thing.

Ruling 2726 - If a person during his terminal illness bestows a part of his wealth on another person as a gift and leaves instructions that after his death another amount be given to yet another person, in the event that both gifts exceed one-third of his estate and the heirs are not prepared to approve the excess amount, then the first endowment should be given [to the first beneficiary] and thereafter whatever remains [from the one-third] should be spent according to the instructions.

 Ruling 2727 - If a person makes a will that one-third of his property should be sold and the proceeds should be spent for some particular purpose, his will must be followed.

 Ruling 2728 - If a person states during his terminal illness that he owes a certain amount to someone, and if he is suspected of having said this to harm his heirs, the amount he mentioned should be taken from one-third of his estate. However, if he is not suspected of any such motive then his confession will be effective and the payment should be made from his estate.

 Ruling 2729 - If a person makes a will that something be given to another person, it is not necessary that he [the beneficiary] be existing at the time of the will. Therefore, if he exists after the death of the testator, it is necessary that he be given that thing. And if he does not end up existing, then if the instruction is construed as having a number of options, then that amount must be spent on another object which would be considered as nearer to the object of the will in the eyes of the testator. And if not then the heirs can share that between themselves. But, if he makes a will that after his death a portion of his estate be given in ownership to a particular person, and if that person exists at the time of the death of the testator – even if it is a foetus that has not yet achieved life – the instruction is in order, otherwise it is void, and whatever he instructed for that person should be divided by the heirs among themselves.

 Ruling 2730 - If a person comes to know that someone has appointed him his executor, if he informs the testator that he is not prepared to be the executor of his will then it is not necessary for him to act as the executor after his [the testator’s] death. However, if he does not come to know of his appointment before the death of the testator, or comes to know about it but does not inform the testator that he is not prepared to be executor of the will, he must – as long as it does not entail hardship – execute the will. In the same way, if the executor comes to know of his appointment at a time when, due to serious illness or some other hindrance, the testator cannot appoint any other executor, he must, on the basis of obligatory precaution, accept the appointment.

 Ruling 2731 - If a testator dies, the executor cannot appoint another person to execute the will and retire from the task himself. But, if he knows that the deceased did not mean that the executor should execute the will himself, and what he wanted was only for the task to be completed, he can appoint another person to be his representative.

 Ruling 2732 - If a person appoints two persons as joint executors and if one of them dies or becomes insane, or becomes a non-believer, then if it is understood from the text of the will that in this situation the other executor can be the sole independent executor, this must be implemented. And if not, then a mujtahid will appoint another person in his place. And if both of them die, or become insane or become non-believers, the mujtahid will appoint two persons in their place. However, if one person can execute the will then it is not necessary [for the mujtahid] to appoint two persons for the purpose.

 Ruling 2733 - If an executor cannot discharge the tasks laid down in the will of the deceased on his own, or even by appointing someone as his agent or by hiring someone, then the mujtahid will appoint someone to assist him in his duties.

 Ruling 2734 - If a quantity from the property of a dead person is lost or damaged while in the custody of the executor, and if he has been negligent in looking after it, or has gone beyond moderation – for example the will instructed him to give a certain amount in charity to the poor people of a certain town, but he took that money to another town and it perished on the journey – he will be responsible. But if he has not been negligent or immoderate, he will not be responsible for the loss.

 Ruling 2735 - Whenever a person appoints someone as his executor and says that if that executor dies then a certain other person should be the next executor, then in the event that the first executor dies the second executor must implement the will.

 Ruling 2736 - If hajj had become obligatory upon the deceased based on his capability [to undertake hajj], or he owed religious dues such as khums, zakat and mazalim (wealth wrongly appropriated), then it is obligatory to undertake these, and these amounts must be taken from the estate of the deceased, even though the deceased may not have left instructions for this in his will. And as for religious penalties (kaffarahs), vows (nadhrs), and hajj by way of vow, these can be taken from his one-third if instructions had been left.

 Ruling 2737 - If the estate of the deceased exceeds his debt and expenses for obligatory hajj, and obligatory religious dues like khums, zakat and mazalim, and if he has also instructed that one-third or a part thereof of his property be put to a particular use, his will must be followed, and if he has not left any will then whatever remains is the property of the heirs.

 Ruling 2738 - If the disposal specified by the deceased exceeds one-third of his property, his will in respect of what exceeds the one-third of his wealth is valid only if the heirs consent to it, whether by words or by conduct, but their internal approval [i.e. if they approve in their hearts and minds] will not suffice. And even if they give their consent some time after his death, it is in order. And if some heirs consent and others decline to give consent, then the will is valid and binding only in respect of the shares of those who have consented.

 Ruling 2739 - If the dispensation specified by the deceased exceeds one-third of his property and his heirs give consent to that dispensation, they cannot withdraw their permission afterwards. And if they refused to give consent in the lifetime of the testator then they can give their consent after his death. But if they have refused consent after his death then any later consent would be [void and] inapplicable.

 Ruling 2740 - If a person makes a will that khums and zakat and other debts be paid out of one-third of his property, and also someone be hired for performing his qadha prayers and fasts, and also that recommended acts be performed like feeding the poor, then first his debts must be paid from the one-third, and if any balance remains then someone should be hired to undertake his qadha prayers and fasts, and if there is still a balance then it should be spent on the recommended acts specified by him. If, however, the one-third of his wealth is sufficient only for the payment of his debts, and his heirs, too, do not permit for more than one-third of his property to be spent, his will in respect to prayers, fasts, and recommended acts is void.

 Ruling 2741 - If a testator instructs that his debt be paid and that also someone should be hired for the performance of his qadha prayers and fasts, and also recommended acts should be performed, but does not direct that the expenses for these be paid from one-third of his estate, then his debt must be paid from his estate, and if anything remains then one-third of it should be spent on prayers and fasts and recommended acts specified by him. And in the event that the one-third is not sufficient, then if his heirs permit, his will must be implemented by paying from their share. And if they do not permit then the expenses of undertaking prayers and fasts must be paid from the one-third of his estate, and if anything remains it should be spent on the recommended acts specified by him.

 Ruling 2742 - If a person claims that the deceased had willed that a certain amount should be given to him, and two just men confirm his statement, or if he takes an oath and one just man confirms his statement, or if one just man and two just women, or four just women bear witness to what he says, the amount claimed by him must be given to him. And if only one just woman bears witness, a quarter of the amount claimed by him should be given to him, and if two just women bear witness, half of that amount [should be given to him], and if three just women bear witness, three-quarters of it should be given to him. Also, if two non-Muslim males from amongst the ‘people of the book’ and who are dhimmis and who are regarded as just in their own religion confirm his statement, and no Muslim witness is available, the amount claimed by that person must be given to him.

Ruling 2743 – If a person claims that he is the executor of the deceased and can implement his will, this will only be acceptable if two just men confirm his statement, or two non-Muslim men who are dhimmis and are regarded as just in their own religion, as long as there is not a Muslim who can bear witness. And this can also be accepted if the heirs acknowledge it.

 Ruling 2744 - If a person makes a will that something from his estate is for a particular person, and that beneficiary dies before accepting or rejecting it, his heirs can accept it as long as they do not reject the will. However, this order applies when the testator does not retract his will, otherwise the beneficiary has no right to lay a claim to that thing.

 

Rules of Inheritance 

Ruling 2745 - There are three groups of persons who inherit from a dead person, on the basis of relationship: 

The first group consists of the dead person’s parents and children, and in the absence of children: the grand children, however many generations down, and among them whoever is nearer to the dead person inherits his property. And as long as even a single person from this group is present, people belonging to the second group do not inherit. 

The second group consists of paternal grandfather, paternal grandmother, sisters, brothers, and in the absence of sisters and brothers their children, whoever from among them is nearer to the dead person will inherit from him. And as long as even one person from this group is present, people belonging to the third group do not inherit. 

The third group consists of paternal uncles and paternal aunts and maternal uncles and maternal aunts, and their children. And as long as even one person from the paternal uncles and paternal aunts and maternal uncles and maternal aunts of the dead person is present, their children do not inherit. However, if the deceased has a paternal half uncle and the son of the full paternal uncle, and no maternal uncle or maternal aunt, then the son of the dead person’s full paternal uncle will inherit from him to the exclusion of the paternal half uncle. But if there are several paternal uncles or several paternal cousins, or if the deceased’s widow is alive, then this rule is not without problem [and cannot be implemented]. 

Ruling 2746 - If the deceased does not have a paternal uncle and paternal aunt and maternal uncle and maternal aunt, nor any of their children or grandchildren, then the deceased will be inherited by the paternal uncles and paternal aunts and maternal uncles and maternal aunts of the deceased’s parents. And if even they do not exist, the wealth will be inherited by the paternal uncles and paternal aunts and maternal uncles and maternal aunts of the deceased’s paternal grandparents. And if even they do not exist, the wealth is inherited by their descendants. 

Ruling 2747 - Husband and wife inherit from one another, as will be explained in detail later.

 

Inheritance of the first group 

Ruling 2748 - If out of the first group there is only one heir of the deceased – for example his father or mother or only one son or only one daughter – that person inherits the entire estate. And if there is one son and one daughter then the estate is divided among them in such a way that the son receives twice the share of the daughter.

 Ruling 2749 - If the father and the mother of the deceased are his only heirs, the estate is divided into three parts: two parts are taken by the father and one part by the mother. However, if the deceased has two brothers or four sisters, or one brother and two sisters, who are Muslims and free [i.e. not slaves] and their father is the same as the father of the deceased even though their mothers may be different, and they are existing, although they do not inherit anything whilst the deceased has a father and mother, nevertheless the mother inherits one-sixth of the estate and the rest is inherited by the father.

 Ruling 2750 - If only the father, the mother and one daughter are the heirs of deceased, and the deceased does not have brothers or sisters with the conditions described in the previous ruling, the estate will be divided into five parts: the father and the mother will receive one part each, and the remaining three parts will be received by the daughter. But if the deceased has brothers or sisters with the conditions described in the previous ruling, then the father will receive one-fifth, and the mother will receive one-sixth, and the daughter will receive three-fifths. With regards to the one-thirtieth that remains, it is [commonly considered by jurists] probable that it is the share of the mother, and it is also probable that three-quarters of that belongs to the daughter and one-quarter to the father. Thus based on obligatory precaution they should come to a compromise.

 Ruling 2751 - If the heirs of the deceased are his father, mother, and one son, the estate is divided into six parts: the father and mother each will receive one part, and the son will receive four parts. And if the deceased has several sons or several daughters they should divide the four parts equally among them. If however he has several sons and several daughters, the four parts should be divided among them in such a manner that each son receives double that of each daughter. 

Ruling 2752 - If the heirs of the deceased are only his father or his mother and one or several sons, the property is divided into six parts: one part goes to the father or mother, and five parts to the son, and if there is more than one son then the five parts are divided equally among them.

 Ruling 2753 - If the heirs of the deceased are only his father or his mother with his sons and daughters, the estate will be divided into six parts: one part goes to the father or the mother, and the remainder is to be divided among the sons and daughters in such a manner that each son receives double that of each daughter.

 Ruling 2754 - If the heirs of the deceased are only his father or mother and one daughter, his estate will be divided into four parts: one part is received by the father or the mother, and the rest is received by the daughter. 

Ruling 2755 - If the heirs of the deceased are only his father or mother and several daughters, the wealth is divided into five parts: one part is received by the father or the mother, and the remaining four parts are equally divided among the daughters.

 Ruling 2756 - If the deceased has no children, the child of his son gets a son’s share even if she be a girl, and the child of his daughter gets a daughter’s share even if he be a boy. For example, if the deceased has a grandson by his daughter, and a granddaughter by his son, the wealth will be divided into three parts: one part will go to the grandson by his daughter, and two parts to the granddaughter by his son. And with regards to inheritance that reaches nieces and nephews, this is not conditional on the father and mother of the deceased being non-existent.

 

Inheritance of the second group 

Ruling 2757 - The second group of persons, who inherit on the basis of relationship, consists of the deceased’s paternal grandfather, paternal grandmother, brothers, and sisters; and if the deceased does not have brothers and sisters, their children will inherit. 

Ruling 2758 - If the heir of the deceased is only one brother, or only one sister, he or she inherits the entire estate, and if he has several full brothers, or several full sisters, they should divide the property equally among themselves. And if he has full brothers and full sisters, every brother receives double the share of a sister. For example, if he has two full brothers and one full sister, the property will be divided into five parts: each brother will receive two parts while the sister will receive one part.

 Ruling 2759 - If the deceased has full brothers and full sisters, his half brothers and sisters who have the same father as the deceased but a different mother, will not inherit from him. And if he has no full brothers or full sisters, and has only one paternal half brother or only one paternal half sister, then the entire estate will be inherited by him or her. If he has several paternal half brothers or several paternal half sisters alone, the estate will be divided among them equally. And, if he has paternal half brothers together with paternal half sisters, every brother will receive double the share of every sister.

 Ruling 2760 - If the only heir of the deceased is one maternal half sister, or one maternal half brother, their father being different from the father of the deceased, she or he inherits the entire estate. And if he has several maternal half brothers, or several maternal half sisters, or several of both [i.e. several maternal half brothers and several maternal half sisters], then the estate should be divided equally among them.

 Ruling 2761 - If the dead person has full brothers and sisters, together with paternal half brothers and sisters, and one maternal half brother or one maternal half sister, the paternal half brothers and sisters will not inherit. In this case the estate will be divided into six parts: one part will be inherited by the maternal half brother or sister, and the remaining five parts will be divided amongst the full brothers and sisters, in such a manner that every brother will receive double the share of every sister.

 Ruling 2762 - If the deceased has full brothers and sisters together with paternal half brothers and sisters, and several maternal half brothers and sisters, the paternal brothers and sisters will not inherit. In this case, the estate will be divided into three parts: one part will be divided by the maternal brothers and sisters equally among themselves, and the remainder will be divided among the full brothers and sisters, in such a manner that every brother gets double the share of every sister. 

Ruling 2763 - If the only heirs of deceased are his paternal half brothers and sisters, and one maternal half brother or one maternal half sister, the estate will be divided into six parts: one part will be given to the maternal half brother or maternal half sister, and the remaining parts will be divided among the paternal half brothers and sisters, in such a manner that every brother gets double the share of every sister.

 Ruling 2764 - If the only heirs of the deceased are his paternal half brother and sister, and several maternal half brothers and sisters, the estate will be divided into three parts: one part will be shared equally between the maternal half brothers and sisters, and the remainder will be given to the paternal half brother and sister in such a manner that the brother receives double the share of the sister.

 Ruling 2765 - If the only heirs of the deceased are his brother, sister, and wife, the wife will inherit as per the details to follow, and the sister and brother will receive their inheritance as stated in the previous rulings. Furthermore, if a woman dies and her only heirs are her sister, her brother, and her husband, the husband inherits half of the estate and the sister and the brother inherit as explained in the earlier rulings. However, for the wife or husband to inherit, nothing is reduced from the share of the maternal half brother and sister, but is reduced from the share of the full brother and sister, as well as from the paternal half brother and sister. For example, if the heirs of the deceased are her husband, maternal half brother and maternal half sister, and full brother and sister, then half of the estate will go to the husband, and one part out of the three parts of the original estate will be given to the maternal half brother and maternal half sister, and whatever remains will be the property of the full brother and sister. Hence, if the total estate of the deceased is six pounds, then three pounds go to the husband, two pounds are received by the maternal half brother and sister, and one pound will be the share of the full brother and sister.

 Ruling 2766 - If the deceased does not have a sister and brother, their share of the inheritance is to be given to their descendants, and the share of the maternal half brother’s child and maternal half sister’s child will be divided among them equally. And as for the share of the paternal half brother’s child and paternal half sister’s child, or the child of the full sibling, the commonly held view [amongst jurists] is that every son gets twice as much as the daughter, but it is not unlikely [according to some evidence] that they should receive equal amounts. Thus, according to obligatory precaution, they should reach a compromise.

 Ruling 2767 - If the heir of the deceased is only one grandfather or one grandmother, regardless of whether they are paternal or maternal, the entire estate goes to him/her. And the great grandfather of the deceased does not inherit whilst the grandfather exists. And if the heirs of the deceased are only his paternal grandfather and paternal grandmother then the estate is divided into three parts: two parts are inherited by the grandfather, and one part by the grandmother. And if they [the heirs] are the maternal grandfather and maternal grandmother, the estate will be divided between them equally.

 Ruling 2768 - If the heir of the deceased is the paternal grandfather or paternal grandmother, together with a maternal grandfather or maternal grandmother, the estate will be divided into three parts: two parts will go to the paternal grandfather or paternal grandmother, and one part will go to the maternal grandfather or maternal grandmother.

 Ruling 2769 - If the heirs of the deceased are paternal grandparents and maternal grandparents, the estate will be divided into three parts: one part will be divided equally between the maternal grandfather and the maternal grandmother, and the remaining two parts will go to the paternal grandfather and the paternal grandmother, from which the paternal grandfather will receive twice the share of the paternal grandmother.

 Ruling 2770 - If the only heirs of the deceased are his wife together with his paternal grandparents and his maternal grandparents, his wife gets her inheritance in the manner that will be explained later. And one-third of the original estate of the deceased will be given to the maternal grandfather and grandmother, to divide equally between them. The remaining part will be given to the paternal grandparents, and the paternal grandfather will receive twice as much as the paternal grandmother. And if the heirs of the deceased are her husband together with her paternal or maternal grandparents, the husband will receive half of the estate and the grandparents will receive their inheritance in the manner mentioned in the previous rulings. 

Ruling 2771 - In the combination of brother or sister or brothers or sisters with grandparents, there are a number of scenarios: 

  1. That each of the grandparents and brother or sister are all from the [deceased’s] mother’s side. In that scenario the estate is divided among them equally, even though they are of different genders.

  1. That all of them are from the father’s side. In that case, again the property will be divided among them equally, provided that all of them are males, or all of them are females. And if they are of different genders then every male will receive twice as much as a female.

  1. That each of the grandfather or grandmother is from the father’s side, and the brother or sister are full siblings [of the deceased]. The ruling in this case is the same as the previous ruling. And it has [previously] been established that if the paternal half brother or sister of the deceased combines with a full brother or sister, the paternal half siblings do not inherit.

  1. That there are grandfathers or grandmothers or both, paternal and maternal, combined with brothers or sisters who are similarly of diverse categories. In this case, one-third of the estate will go to the maternal relatives including grandfathers and grandmothers, and brothers and sisters, to be divided equally among them, regardless of their sex. And two-thirds of the estate will go to the paternal relatives, among whom every male gets twice as much as a female. And if all of them are male or all of them are female then it should be divided equally among them.

  1. That a paternal grandfather or grandmother combines with a maternal half brother or maternal half sister. In this case, if there is only one [maternal half] brother or sister, he/she receives one-sixth of the estate, and if there are several then they receive one-third of the estate to be divided among them equally. The remainder is received by the paternal grandfather or paternal grandmother, and if both the grandfather and the grandmother are present then the grandfather receives twice as much as the grandmother.

  1. That maternal grandfather or maternal grandmother or both combine with one or several paternal half brothers. In this case one-third belongs to the grandfather or grandmother, and if they are both present then that one-third is divided between them equally. And two-thirds belongs to the brother or brothers. And if there is one paternal half sister that combines with those grandparents then she receives half, and if there are several then they receive two-thirds. And in all cases the share of the grandfather and grandmother is one-third. And based on this, there will be a residue of one-sixth if there is only one sister; and it is dubious that she be the recipient of this, and also that it be shared between the grandfather and grandmother; therefore, as an obligatory precaution, a compromise should be reached [for that extra residue].

  1. That there be grandfathers or grandmothers or both, some paternal and some maternal, combined with one or more paternal half brother or paternal half sister. In this case, one-third belongs to the maternal grandfather or maternal grandmother, and if they be several then it should be divided among them equally, even though some are male and some are female. And the remaining two-thirds belong to the paternal grandfather or grandmother, and the paternal half brother or paternal half sister, and each male is to inherit twice that of each female. And if those grandfathers or grandmothers are combined with a maternal half brother or maternal half sister, then the share of the maternal grandfather or maternal grandmother, together with the maternal half brother or maternal half sister will be one-third, to be divided among them equally, even if some of them are male and some are female. And the share of the paternal grandfather or grandmother is two-thirds, and the grandfather must inherit twice that of the grandmother.

  1. That there are brothers or sisters, some of whom are paternal half and some maternal half, combined with paternal grandfather or grandmother. In this case, one-sixth of the inheritance belongs to the maternal half brother or maternal half sister if there is one of them, and one-third if there are several, to be divided equally among them. And for the paternal half brother or paternal half sister, and the paternal grandfather or grandmother is the remainder of the inheritance, and for each male is twice the share of each female. And if those brothers or sisters are combined with a maternal grandfather or maternal grandmother, then the total share of the maternal grandfather or maternal grandmother, and the maternal half brother or maternal half sister is one-third, to be divided equally among them. And the share of the paternal half brother or paternal half sister will be two-thirds, the male receiving twice that of the female.

 

Ruling 2772 - If the deceased has a brother or sister, then their children do not inherit. However, this law does not apply when the inheritance of a brother’s child or sister’s child does not clash with that of brother or sister. For example, if the deceased has a paternal half brother and maternal grandfather, the paternal half brother will inherit two-thirds and the maternal grandfather will inherit one-third of the estate. In this case, if the maternal half brother of the deceased has a son, then [the maternal half brother’s son] will share the one-third of the estate with the maternal grandfather.

 Inheritance of the third group 

Ruling 2773 - The third group of heirs consists of paternal uncle, paternal aunt, maternal uncle, maternal aunt, and their children and their grandchildren. The persons in this group inherit when none of the persons belonging to the first two groups is present. 

Ruling 2774 - If the only heir of the deceased is one paternal uncle or one paternal aunt, regardless of whether he or she be the full, i.e. he or she is from the same father and mother of the deceased, or the paternal half or the maternal half, he or she inherits the entire estate. And if there are several uncles alone, or several aunts alone, and all of them are full, or all paternal half uncles/aunts, or all maternal half uncles/aunts, the estate will be divided equally among them. And if there are both uncles and aunts then each uncle will receive twice the share of each aunt.

 Ruling 2775 - If the heirs of the deceased are several uncles and aunts, some of them being paternal half uncles/aunts and some of them being maternal half uncles/aunts, and some of them being full uncles/aunts, then the paternal half uncles/aunts will not inherit. Therefore, if the deceased has one maternal half uncle or one maternal half aunt, then the estate will be divided into six parts: one part will be given to the maternal half uncle/aunt, and the rest to the full uncles and aunts. And if there are no full uncles/aunts, then those parts will go to the paternal half uncles/aunts. And if the deceased has a maternal half uncle and a maternal half aunt then the estate is divided into three parts: two parts will be given to the full uncles and aunts, and if there are no full uncles and aunts then to the paternal half uncles/aunts, and one part to the maternal half uncles/aunts. And in every scenario, the uncle will receive double the share of the aunt.

 Ruling 2776 - If the deceased has only one maternal uncle or only one maternal aunt, he or she inherits the entire estate. And if he has a maternal uncle and a maternal aunt – whether they be the full [meaning they share the same father and mother with the deceased’s mother], or the paternal half or the maternal half brothers and sisters of his mother, it is not far-fetched that the uncle receives twice that of the aunt. But it is also probable that they inherit equally. Therefore, based on obligatory precaution, they should reach a compromise on the extra amount.

 Ruling 2777 - If the heirs of the deceased are one or several maternal half uncles and maternal half aunts [meaning they share the same mother as the mother of the deceased], and maternal full uncles and aunts, and maternal half uncles and aunts from the father’s side [meaning they share the same father as the mother of the deceased], then to deprive the maternal half uncles and maternal half aunts from the father’s side is problematic [i.e. they must not be deprived]. And in any case, the maternal half uncle or maternal half aunt – if there is one of them then they receive one-sixth, and if there are several then [they receive] one-third of the estate. And the remainder should be given to the maternal half uncle from the father’s side or maternal half aunt from the father’s side. And whilst it is probable that the maternal half uncle from the father’s side inherits twice that of the maternal half aunt from the father’s side, they should, based on obligatory precaution, come to a compromise.

 Ruling 2778 - If the heirs of the deceased are one or several maternal uncles, or one or several maternal aunts, or a maternal uncle together with a maternal aunt with one or several paternal uncles, or with one or several paternal aunts, or a paternal uncle and a paternal aunt, then the estate will be divided into three parts: one part will be given to the maternal uncle or maternal aunt or both of them, and the remainder will go to the paternal uncle or paternal aunt or both of them. And the method of distribution amongst both of these groups has already been mentioned.

 Ruling 2779 - If the deceased does not have any living paternal uncles or paternal aunts, or maternal uncles or maternal aunts, then their shares pass to their children. Thus, if the deceased has one female cousin from his paternal aunt and several male cousins from his paternal uncle, the female cousin will receive two-thirds and the male cousins will receive one-third to be distributed among them equally. And this group – i.e. the children of paternal and maternal uncles and aunts – have priority over the deceased’s father’s paternal and maternal uncles and aunts, and the deceased’s mother’s paternal and maternal uncles and aunts. 

Ruling 2780 - If the heirs of the deceased are his father’s paternal and maternal uncles and aunts, or his mother’s paternal and maternal uncles and aunts, the estate will be divided into three parts: one part will be inherited by the deceased’s mother’s paternal and maternal uncles and aunts; and in this regard, whether each of them is given an equal share or whether the males receive twice the share of the females, is a matter of disagreement [amongst jurists]. Therefore, based on obligatory precaution, they should come to an agreement between themselves. The remaining two parts should then be split into three parts: one part should be given to the deceased’s father’s maternal uncle and aunt to be shared between them in the manner that has been mentioned, and the remaining two parts should be given to the deceased’s father’s paternal uncle and aunt to be shared between them in the manner that has been mentioned.

 

Inheritance by the husband and the wife 

Ruling 2781 - If a woman dies childless, half of her estate is inherited by her husband, and the remainder by her other heirs. And if she has children from that same husband or from another husband, then her husband will receive one-quarter of the estate, and the remainder will be inherited by her other heirs.

 Ruling 2782 - If a man dies childless, a quarter of his estate will be inherited by his wife and the remainder by his other heirs. And if the man has children from that wife or another wife, the wife will receive one-eighth of the estate and the remainder will be inherited by his other heirs. A wife does not inherit anything from the land of a house or a garden or a farm, or from any other land, nor does she inherit from the value of such lands. Also, she does not inherit from that which stands on that land such as the house and the trees, however she inherits from their value. The same rule applies to the trees and crops and buildings standing on the land of a garden, and on agricultural land, or on any other lands. But she does inherit from the actual fruit that were present on the trees at the time of the death of her husband.

 Ruling 2783 - If the wife wishes to have any right of usage over things from which she does not inherit, for example the land of a residential house, she must obtain the permission of the other heirs to do so. And it is not permissible for the other heirs – as long as they have not given the wife her share – to have any right of usage without the permission of the wife, over those things from the value of which she inherits, such as [the value of the] buildings and trees.

 Ruling 2784 - If the heirs wish to undertake the valuation of the buildings and the trees and other similar things then this should be done as the experts usually do, that is by estimating their value in the current condition disregarding where the land is, and not to consider their value in the event they may be uprooted from the land. Or, they should be valued as unrented property remaining on the land.

 Ruling 2785 - The canals for the flow of water fall under the category of land, and the bricks etc. used for its construction fall under the category of building. As for the water, the inheritance is calculated from it [i.e. the actual water].

Ruling 2786 - If the deceased has more than one wife and if he is childless then one-quarter of the estate, and if he has children then one-eighth of the estate, as per the previous explanations, should be divided equally among his wives; this rule applies even if the husband may not have had sexual intercourse with all or some of them. However, if he married a woman during a terminal illness and did not have sexual intercourse with her, that woman will not inherit from him nor will she be entitled to a dowry.

 Ruling 2787 - If a woman marries a man whilst she is ill and subsequently dies from that illness, her husband will inherit from her even if he did not have sexual intercourse with her.

Ruling 2788 - If a woman is given revocable divorce in the manner explained in the rulings relating to divorce, and she dies during the iddah period, her husband inherits from her. Also, if the husband dies during that iddah period the wife inherits from him. But, if one of them dies after the expiry of the iddah period or during the iddah period of an irrevocable divorce, then the other does not inherit from him/her.

 Ruling 2789 - If a husband during his illness divorces his wife and dies before the expiry of twelve lunar months, the wife inherits from him on the fulfilment of three conditions, regardless of whether the divorce was revocable or irrevocable: 

  1. That during this time she has not married another man. And if she has married another man during that period she will not inherit, although the recommended precaution is that they [the ex-wife and the heirs] reach a compromise.

  1. That the divorce was not undertaken at her request and of her own accord, irrespective of whether she paid her husband some consideration to obtain divorce or not. If she had herself asked for divorce then she does not inherit.

  1. That the husband died during the same illness in which he divorced her, as a result of that illness, or some other reason. Therefore, if the husband recovers from that illness and dies later owing to some other cause, the divorced wife will not inherit from him, unless his death happened during the iddah period of a revocable divorce.

Ruling 2790 - The clothes that a husband buys for his wife – even though she may have worn them – is to be treated as part of his estate after his death, unless he gave the ownership of that to his wife. And a wife is entitled to seek ownership of clothes from her husband as part of his obligations to provide for her. 

Miscellaneous rules of inheritance

Ruling 2791 - The deceased’s Qur’an, ring, and sword and the clothes worn by him and clothes that he had intended to wear, belong to the eldest son. And if the deceased has left more than one of these three things – for example he has left two copies of the Qur’an or two rings – the obligatory precaution is that the eldest son should come to a compromise with the other heirs in respect of those things. The same applies to the resting stand of the Qur’an, the gun, the dagger and other such weapons, as well as the sheath of the sword [i.e. based on obligatory precaution the eldest son should come to a compromise with the other heirs regarding these items].

 Ruling 2792 - If the deceased has more than one eldest son, for example two sons are born of two wives at the same time – they must divide those items mentioned earlier equally amongst themselves. And this ruling is specifically for the eldest son, even though there may be daughters older than him.

 Ruling 2793 - If the deceased has a debt and if his debt is equal to his estate or more, then the eldest son must give those things mentioned earlier that belong to him, or he must pay their equivalent worth from his own wealth, to settle that debt. And if the debt of the deceased is less than the estate but it cannot be paid by the rest of the estate without considering those items that belong to the eldest son, then the eldest son must give from those items or from his own wealth to clear the debt. And even if the rest of the estate is adequate to clear the debt fully, as an obligatory precaution the eldest son should still participate in clearing the debt in the manner previously mentioned. For example, if the estate of the deceased is worth sixty pounds and the articles given to the eldest son are worth twenty pounds, and the deceased has a debt of thirty pounds, the eldest son must proportionally pay Ł10 from the items he received from the deceased.

 Ruling 2794 - A Muslim inherits from a non-Muslim, but a non-Muslim does not inherit from a deceased Muslim, even if he is his father or son.

 Ruling 2795 - If a person kills one of his relatives intentionally and unjustly he does not inherit from him. However, if the killing was justified such as qisas (retributory punishment) or to execute punishment or it was through defence, he will inherit. The same applies if the killing was due to some error, for example if he threw a stone into the air and by chance it hit one of his relatives and killed him. However, he will not inherit from the diyah (blood money) for the killing that has been paid by relatives. And the same applies to manslaughter, which means: he does something that would not usually result in death and nor did he intend to kill, but he did intend to carry out that particular action upon the dead person; in this case it will not prevent him from inheriting.

Ruling 2796 - Whenever it is proposed to divide the inheritance, then for a child who is in its mother’s womb and will inherit once it is born, in the event that it is known it is one child or several, and whether it is male or female, regardless of if this is discovered using medical technologies, then the share of it/them must be set aside. And if it is not known, but it is a reliable probability that there are several, the share equal to that of one son must be set aside for each of them. And in the event that one son or one daughter is born then the heirs should divide the extra amount between themselves.


 

1/3 rd wealth distribution after death - Appointment of Wasi

Recommendation for  making’ Will’  &1/3 rd wealth distribution after death - Appointment of Wasi

Will & Wasi image

It is highly recommended to make a will & keep it at a place known to his/her close family members The Holy Prophet (saws) says that a person who makes a good ‘Will’, dies the death of a martyr.

 The rules for inheritance are fixed by Shariah & distribution is to be done accordingly .There is no need to appoint a Wasi (executor of will) to distribute the inheritance only between the inheritors.-------------------------------------------------------------------------------------------------------------------------------------------

The Islamic rules for Inheritance permit a maximum of 1/3rd of the wealth to be used as per the will of the deceased, provided such a specific will was made.

It is beneficial and recommended that a person makes a ‘will’ & stipulates in it, amongst other things, that 1/3 rd of wealth left behind is to be used ‘for good causes’ so that the benefit from it, will come to him/her after death.
The calculation of 1/3 rd will be on; i) Wealth at the time of death & not at time when will is made, ii) After deducting wajib dues like khums  & loan repayment  (if applicable as per detail rules) & iii) On Total Wealth (after ii) .However a person may specify particular assets for this calculation (say for example include only Bank Balance & Jewelry) .Alternatively person can specifically exclude certain assets (for example exclude a house which the family lives in, and is difficult to break up/sell .) 

This allocation of 1/3 has to be specifically mentioned (orally or in writing as a will/wasiyat) AND
a Wasi is to be appointed for its execution.
It is recommended that the will is in writing (though it can be verbal) & has 2 witnesses.
In case there is such a will and no Wasi was appointed, then the persons (including inheritors), distributing this 1/3 rd wealth should take permission from ‘Hakim Shar’ ie authorized representative of persons Marja before doing so.

In case the wealth includes Businesses or indivisible Assets which cannot be liquidated, an individual can consider transferring ownership during lifetime to a trust / organization. The beneficial ownership, of this trust/Organisation can be ; 2/3 the inheritors as per sharia & 1/3 for specified causes. The management of this trust /organization can also be predefined as required.
 

What IF the Wasiyat done is more than 1/3 of weath?
 

Suppose the dead person had done wasiyat for more than 1/3rd of the wealth. Eg upon his death, he had Rs90 and he had done wasiyat that Rs 50 be given from this for eg good causes

a) upto 1/3rd is valid. So for Rs. 30 the wasiyat is valid

b) that in excess of 1/3rd ie Rs 20- IF ALL  the inheritors give permission(either verbally or in writing), then this is also valid and the entire Rs. 50 will be given for good causes.

c) some Inheritors give permission & some don't: Eg one inheritor(Mr. X) gives permission & one(Mr. Y) does not- The wasiyat will be valid for ONLY for  those who give the permission.So Rs. 10 will be added to the 1/3rd (Rs.30) from Mr. X's inheritance & Rs. 40 will be given to good causes. 

Note:

a) In this case the inheritor/s MUST give permission verbally or in writing. It is not enough to assume their consent nor is it enough if they are wiling but have not expressed it either verbally or in writing.

b) The inheritors can give such permission either while the dead person was alive or after he has died. But once they consent, they cannot go back on it. 

 


 

Dialogue on writing a will (From Jurisprudence made easy)

My father started today’s session with a hadith from Imam Ja’far as-Sadiq, “Leaving a will is a (religious) duty; the Prophet (s.a.w.) had done so, and so should Muslims”.

*  Yet, some people do not write wills under the false impression and pessimism that their death has drawn nigh.

-  Making a will is a commendable act (mustahab);  it is widely believed to prolong life.  Conversely, leaving out the making of a will is makrouh and not a good thing to do.

After all, isn’t death inevitable?

*  Yes, and rightly so.  Allah, the Exalted says in His Holy Book, “Every soul shall taste of death ...” (3/185). 

-  If this was the case, why should any one of us try to evade the inevitable?

We have to be practical and get ready for that which will befall us all, whether we lived a long or a short life.

*  How should I go about making a will?

-  It is mustahab you start your will with the du’a (supplication, or invocation) that the Prophet (s.a.w.) taught Imam Ali (a.s.).

*  What does it say?

-  My father stood up, went to his library and came back with a book entitled “Al-Wasaa’il”.  He read out the text of the supplication.

I was writing what he dictated to me.  It reads thus:

”O Lord! Originator of the heavens and the earth, the Only Source of knowledge of the unseen and the seen, the All-compassionate, the All-merciful.  O Lord! I bear witness that there is no god but You, that You have no associates, and that Mohammad is your servant and messenger.  That paradise, hell, resurrection, reckoning, destiny, and justice are true. That religion is as You described, Islam as You made plain, the word as You narrated, The Qur’an as You stated.  That You are God - The Glaring Truth.

May Allah reward Mohammad with the best recompense.  May He bless Mohammad and his Progeny and grant them peace.

O Lord! You are my refuge at times of fear, my ally at times of trouble, and the Giver of my boon.  My God and the God of my ancestors!  Do not make me rely on my soul, for if You do, it will tempt me to incline to that which is evil, and allure me to abandon that which is good.  Make my loneliness in the grave friendlier.  And make me a pledge that I return to You with the best outcome”.

After this introduction, the person can state his will.

*  What are the matters that could be included in a will?

-  Things like a) taking care of one’s offspring, especially the minors among them, and the rest of his family, b) to be kind to his kindred, c) to pay his debts, if any, and d) releasing deposits in his trust. He could leave in his estate the amount of expenses that shall arise from paying for people who shall carry out certain obligations he did not perform in his lifetime, such as prayer, fasting, hajj, and paying out any amounts of khums and zakat that are outstanding.  He could state that the poor be fed, and make out payments of sadaqah in his memory.  He could ask for certain things to be done after his departure.  In short he could ask for the implementation of anything he wished.

However, it is important to note that there are certain conditions that should be met by the person making the will.  These are, they should be adult, sane, of a full legal age, hence the will of the incompetent (safeeh) shall not be in order.  Nor shall be the will of a person who was coerced into making the requirement in the will. The will of the boy who is under ten years of age, provided the provisions of his will were in the sphere of what is good and for the benefit of his immediate family and relatives.

At the time of making the will, the testator should not be resigned to taking his own life.  In such a case, his instructions as to his estate shall, for example, be limited to that which relates to matters and expenses arising from his funeral and his children who are under-age.

The executor cannot appoint another person to carry out the will.  He could, however, authorize a trustworthy person to handle any particular matter of the will, if the testator did not specify that the executor should attend to that particular matter himself.

*  Is it conditional that the will be written?

-  No, any person can make a will verbally or by expressing any meaningful gesture.  It suffices, too, for a will to be deemed as such, if there was any paper, bearing the signature, seal, or finger print, of the mandator, suggesting that he intended it to be executed after his death.   

*  Should any one of us make his will at the time of illness only?

-  No, not only in sickness, in health too.

*  You said earlier that one can cater for any thing he wished.  Am I right?

-  Yes, provided it should not be outside the pale of what is lawful and ethical.

*  Could any one of us make a will, stating that all his estate, for example,  be spent in a certain avenue?

No, the will must be confined to one third of the entire estate.

*  Should there be a person, who exceeded that limit, what shall be the ruling in this case?

-  The will should be declared void and null, unless the heirs sanction the excess share.

*  If the heirs agreed, how should they go about executing the will?

-  That which should be set aside of the estate be: a) any outstanding debt, b) religious dues, c) compensations, and d) reserve money for any religious obligations that were not carried out during the lifetime of the deceased. Obligations such as hajj, prayer, fasting etc, should be performed on his behalf, irrespective of whether or not he made provisions in his will to cater for them. 

That is, if the deceased did not specify that it should be taken out from his share of one third, in which case it must be taken out of it.

The remainder must be divided into three shares.

One third must be set aside to meet the provisions made by the testator and two thirds for his inheritors.

*  Should provisions, made by the testator in his will, like paying a named person a specific amount of money, or granting them a property or a plot of land, and other ones pertaining to his funeral, for example, be acted upon?

-  The testator has the right to make such provisions and the executors of his will should be bound by that, provided the cost did not exceed one third of his estate.

*  Parts of the estate of the deceased person could sustain damage at the hands of the executor of his will.  Should the latter be held responsible?

-  The executor cannot be made to pay for the damage, provided that there was no negligence or  malice on his part.

However, making a will is mustahab as long as death was imminent, in which case attending to certain things as a matter of priority becomes wajib; among these are the following:

1.  Settling one’s debt, especially those that have become due, if one was able to do so.

As for a) the debt whose date of repayment was not due,  b) that which was due but was not yet demanded by the creditors to pay, or c) that which he did not have the means to pay back, he should make a will to that effect before witnesses, if it was not common knowledge.

2.  Releasing deposits in his safekeeping to their owners, notifying the owners, or making a provision to return them.

3.  Settling unpaid khums, zakat, and madhalim (Material or moral restitution, or reparation, to people you have wronged), if you were liable and could afford payment.

4.  Hiring a person, for money paid from his own property, to say obligatory prayers or perform hajj on his behalf.  Even if he was not financially able to hire someone, and a volunteer came forward to carry such obligations out for him, making a provision in the will to this effect becomes wajib.  In certain cases, however, informing a trusted person, such as the eldest son, to cater for meeting his obligations vis-a-vis prayer and hajj would suffice.

5.  Advising his heirs of any money, property,  or otherwise he has with other people, that they do not know of, so that their right in such dues would be preserved after his death.

*  If a person did not make a will, what would happen to his estate?

-  He shall forgo his right in having disposal over one third of his estate in the way he may have wished.

*  How would his estate be divided?

-  It be divided according to certain formula, that we will discuss in the next dialogue on inheritance.