Inheritance – Important Issues Continued

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WEALTH EXCLUDED FROM INHERITANCE

Certain types of wealth although in the possession of a man does not form part of his estate because the Shariah does not recognize his ownership of such wealth. Only such wealth of which a man is the true owner in terms of the Shariah, is the subject of Meerath. Wealth excluded from inheritance are:
 
1. Wealth acquired by haraam means, e.g. gambling, prostitution, bribery, misappropriation, theft, riba, etc. Such wealth does not enter into a man’s ownership. If the rightful owner or his/her heirs are living, the wealth should be compulsorily restored to them. If the owners or their heirs are no longer living or contact with them is not possible, the money or assets should be compulsorily given as Sadqah to the Muslim poor on behalf of the untraceable owners.
 
2. An asset pledged as security for a debt by the deceased. If there are insufficient funds in the estate to release the pledged asset, it can be sold to recover debt. Any amount in excess of the debt will form part of the inheritance.
 
3. Insurance/Endowment policies are riba contracts which are haraam. Only the actual sum of premiums paid by the mayyit forms part of the inheritance. The excess, i.e. the amount more then the total premiums, is riba which should be compulsorily eliminated by distributing it in avenues permitted by the Shariah. Such permissible avenues for elimination ol this riba are: the poor; public works, e.g. public toilets, wells, boreholes; payment of government taxes; rales on property; death-duty levied by the government.
 
In view of some difference of opinion among the Ulama on the question of disposal of riba funds in one’s possession, the best option is to give the money to the poor since there exists unanimity of our Ulama regarding this avenue of disposal of interest funds.
 
4. Funds acquired from a government pension belong to the estate only if possession was taken by the mayyit. If a pension cheque is received after a man’s death, such money will not form part of his estate. Whoever the beneficiary of the fund is after the person’s death, will be the owner of such funds.
 
5. Rights are not the subject of Meerath. The business partnership between the existing partners and the deceased partner dissolves with his death. The heirs do not inherit any right of partnership. Their rights are related to only the share of their murith in the assets of the partnership enterprise. They have no rights in future profits of the business.
 
A lease automatically lapses with death. The lease is not inherited by the heirs.

There are, however, certain exceptions to which the rights of inheritance are extended. Such rights are rights inextricably

connected to a fixed property, e.g. a common access road to a house or farm; the right of drawing water from a borehole, etc. owned by several partners.

Haqq-e-Shufah (the pre-emptive right of purchasing an adjacent property) is not inherited by the heirs. If a man sells his fixed property, his immediate neighbour has the first right to purchase it at the price asked by the owner. If the owner sells his property to a person other than the one enjoying the pre-emptive right of purchasing, the latter has a legal right to apply for the cancellation of the sale. However, if he dies, this right is not inherited by his heirs. But if the owner offers the building for sale, then the new owners, viz the heirs, will have the Shufah right to purchase. They gain this right not by way of inheritance, but by virtue of them having become the owners of the property.

The right to use a borrowed item is not inherited by the heirs, e.g. a man borrowed an item for a month’s use. However, before expiry of the month he dies. The item has to be returned to the owner immediately.

An option to purchase is not inherited by the heirs. If an item was purchased with the option of returning it within a specified period, e. g. three days, and the purchaser dies before the expiry of the specified period, the heirs cannot return the item. The option of returning it lapses with the death of the purchaser. However, the item may be returned if it is defective.

WEALTH WHICH WAS NOT ALIENATED

Any wealth or asset set aside for a particular period or specific person remains part of the mayyit’s estate as long as it has not been finally alienated from his ownership in the way of alienation stipulated by the Shariah. If a man sets aside, for example, a sum of money for his Hajj, but dies before he was blessed with the opportunity of performing Hall, this money forms part of his estate for distribution among his heirs.

If he sets aside money for the purpose of making a gift thereof to any of his children or anyone else, but before handing the money to the intended beneficiary, he dies, then this money forms part of the estate.

If he sets aside money for building a Musjid or contributing it to a Madrasah or any other charitable institution, but dies before assigning the money to the trustees of these institutions, then such money forms part of his estate.

If for example, jewellery or garments are purchased for a particular daughter soon to marry, but before she takes possession of the items her father dies, than all these items form part of his estate. She cannot claim these as being her property.

If money is set aside as Zakat, but before it is given to the poor (masaakeen), the man dies, then this money forms part of the mayyit’s estate.

PRIOR RIGHTS

There are three things which have priority over Meerath. The distribution of the mayyit’s estate will take place only after execution of these three rights. These are:

1, Burial Expenses

2. Debts

3. Bequests (wasaya)

BURIAL EXPENSES

This is the first item of expenditure related to the mayyit’s estate. The burial expenses will be taken from the estate. However, waste and unnecessary expense are not permissible. Only the amount required for the Masnoon Kafan and necessary attendant expenses such as the bricks/timber to be used in the Qabr, the transport cost if a vehicle has to be hired to transport the mayyit to the qabrustan, paying the ghasil (the one who bathes the mayyit) if no one else is prepared to render this service, price of the grave, etc.

It is not permissible to spend anything from the mayyit’s estate for any function whatsoever. In fact, it is not permissible to organise any function such as the innovations in vogue. Care should be taken to spend only what is necessary for the burial.

If an heir utilizes the funds of the estate for an unnecessary expense, he is liable for the misappropriation and is obligated to pay into the estate the amount spent unnecessarily.

The cost for transporting the mayyit to another town for burial is an unnecessary expenditure which may not be taken from the mayyit’s estate. Since it is not permissible to transport the mayyit unnecessarily to another city or town for burial, the expenses incurred for such transport are wasteful and expended sinfully.

The prohibition of spending unnecessarily from the funds of the mayyit’s estate is so severe that if the estate is insolvent (i.e. the liabilities exceed the assets), then the creditors are entitled to authorise only two sheets for the male mayyit’s Kafan instead of the masnoon three sheets. Since the assets in an insolvent estate belong to the creditors, they have the right to prohibit any excess expenditure.

Burial expense is a prior and an incumbent claim on the mayyit’s estate whether solvent or insolvent. Thus, if someone offers to pay these expenses, it is not obligatory on the heirs to accept even if the estate is heavily in debt. The creditors cannot compel the heirs to accept such aid nor can they debar the heirs from taking the necessary burial expenses from the funds of the estate. However, it is permissible for the heirs to accept outside aid.

If some of the heirs are nabaligh (minors), acceptance of outside aid will be incumbent. But, if the baligh (adult) heirs agree not to take anything from the shares of the minors for the burial expenses, it will be permissible for them to refuse the aid offered.

The burial expense of a female mayyit is the responsibility or her husband. Only if she has no husband, may the expenses be taken from her estate.

If the mayyit is a pauper, leaving behind no estate whatever, the responsibility of providing the burial expenses devolves firstly on his heirs in proportion to their respective rights of inheritance, e. g. if he leaves behind three sons, a daughter and a wife, these heirs will bear the expenses in the following proportions:

His wife will contribute one eighth, each son two eighths and the daughter one eighth. It is permissible for any one or more of them to provide the full burial expenses.

In the absence of relatives, the burial expense of the pauper will be the responsibility of the people of the neighbourhood.

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To be continued…

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