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 About Inheritence and Will in Islamic Law

We are three brothers to our mother and father who are both alive by the grace of Allah (swt). What is each of our share according to sharia, in our father's property? How much of it can our father 'give' in accordance to his own preference or liking of one son over the other, in his official ‘will' statement?

Answer:

 Lawful Inheritence and parental preference

 

The meanings of “inheritance” and “will” and rulings related to them are stated in the Islamic jurisprudence as following:

Will

According to the Islamic inheritance jurisprudence, the main points about will are:      

                The testamentary will of the deceased person is executed after the following two duties are performed:

Paying funeral and burial expenses.

Paying debts.

        A person cannot bequest more than one third of his net estate unless heirs consent to the will

        The testator cannot make a bequest in favour of a legal heir

        The will is executed with one third of the remained property after the payment of the funeral and burial expenses and debts.

        If the amount of the will exceeds the one third of the remainder after the funeral and burial expenses and debts, then the heirs’ permissions are asked for the use of the excess money. If the heirs agree, then the will is executed as it is stated; but if they do not accept, just one third of the remainder is used to execute the will and the rest is “the inheritace”.

Inheritance

After the following three steps are fulfilled, the remainder of estate and property is distributed among the heirs according to the Islamic law. This is called “inheritance”.

Paying funeral and burial expenses.

Paying debts

Execution of the testamentary will   (that cannot exceed the one third of the net estate)

 

The legal heirs and their shares are obviously stated in Islamic law.

“And you shall have half of what your wives leave if they have no child, but if they have a child, then you shall have a fourth of what they leave after (payment of) any bequest they may have bequeathed or a debt; and they shall have the fourth of what you leave if you have no child, but if you have a child then they shall have the eighth of what you leave after (payment of) a bequest you may have bequeathed or a debt; and if a man or a woman leaves property to be inherited by neither parents nor offspring, and he (or she) has a brother or a sister, then each of them two shall have the sixth, but if they are more than that, they shall be sharers in the third after (payment of) any bequest that may have been bequeathed or a debt that does not harm (others); this is an ordinance from Allah: and Allah is Knowing, Forbearing.” (Surah al Nisa, 12)

Dear Brother,

You, the three brothers are the legal heirs of your father. As a legal heir cannot be bequeathed, your father cannot mention any of you in his will and you have the same shares from the inheritance which cannot change. It is one eighth of the remained property is your mother’s and the rest of the estate is delivered equally among the three brothers.

 According to Islam, one who determines the heirs and the shares is not inheritor; it is Islamic law. He can only determine those and their shares whom he will bequeath. So, your father cannot inherit anything more to one of you; however, he can distribute and transfer his property in accordance with his preference while he is alive. Nevertheless, we would like to remind you that it is better to treat children fairly:

"Fear Allah and treat your children fairly." (Buklari, Muslim)

Nu'man b. Bashir (ra) reported:

“My father took me to Allah's Messenger (pbuh) and said: Allah's Messenger, bear witness that I have given such and such gift to Nu'man from my property, whereupon he (the Holy Prophet) said: Have you given gifts to all of them like this? He said: No. Thereupon he (the Holy Prophet) said: Call someone else besides me as a witness. And he further said: Would it, please you that they (your children) should all behave virtuously towards you? He said: Yes. He (the Holy Prophet) said: Then don't do that (i e. don't give gift to one to the exclusion of others).  (Muslim; The Book of Gifts; 3966) Kaynak: http://askaquestionto.us - About Inheritence and Will in Islamic Law