We will continue with our series on “Understanding Islamic Succession”. In today’s episode, we shall be discussing the obligations to be fulfilled before distributing the property of a deceased person”.
In Islam, obligations are sacred and must be fulfilled. The Quran lays emphasis on the fulfillment of obligation and settlement of debt in countless verses. Examples are:
Quran 61 verse 2 – 3 says:
“O you who believe! Why do you say that which you do not do?” “Most hateful it is with Allah that you say that which you do not do”
Quran 3 verse 76 says:
“Yes whoever fulfills his pledge and be conscious of Allah indeed Allah love the pious”
If death could be a determining factor of the fulfillment of a legal obligation by a deceased person, society would be in chaos as the creditor would suffer irreparable loss.
Consequently, the Quran lay so much emphasis on the fulfillment of the legal obligation of a deceased person, even if the deceased is no more in the position to personally fulfill such obligation. This explains why the commitment of the deceased needs to be promptly settled by his/her heirs.
The Quran 4 verse 11 and 4 verse 12 distinctively calls for settlement of debt and bequest before the distribution of the property of the deceased.
Quran 4 verse 11 says:
“… only after the payment of bequest he may have made or debt he may have incurred …”
The verse that follows (Quran 4 verse 12) repeats the same to be a condition precedent before the distribution of the estate of the deceased.
WHAT ARE THOSE OBLIGATIONS TO BE FULFILLED?
Before the distribution of the deceased’ property, three (3) categories of expenses must be taken into consideration, amongst which are:
1. Outstanding debt of the deceased
Debts incurred during the lifetime of the deceased are the front-line charge against his/her wealth. This means the debts owed by the deceased person must be settled from his estate before distributing his property to his legal heirs. However, while on this, care must be taken to prevent fraudsters from taking undue advantage, thereby applying strictly the provision of Quran 49 verse 6 which states that:
“O you who believe, if there come to you a disobedient one with information, investigate, lest you harm a people out of ignorance and become, over what you have done, regretful.”
Paying debt before a corpse is buried is so important that the Prophet (SAW) refused to pray Salatul-Janazah (funeral prayer) for one of his followers who was in debt. The prophet delayed the prayer till after his debt was settled.
To show the importance of paying debt, it was reported that the Prophet (SAW) personally paid the debt of a deceased Muslim, when the property of the person was insufficient.
Furthermore, it was reported in the Hadith of the Prophet that a deceased who is in debt would be in bondage until the debt is settled. This shows that the death of a debtor does not exonerate him from paying off his debt and does not deprive the creditors of their entitlements.
2. Burial Expenses
It is very fair for the deceased to be given proper burial from his own wealth. Therefore, when a person dies, preparation must be made to take care of the deceased corpse. During the course of doing this, some expenses, such as; the cemetery fee, the white garment for covering the body, the cost of digging his grave, transporting his body to the grave, cost of a piece of land to be used as his burial ground, and other related expenses must be taken from the deceased’s wealth.
It is also worthy of note that the basic expenses that are incurred wholly and exclusively for the burial are the chargeable expenses from the estate of the deceased. Where the estate of the deceased will not be enough to finance the burial expenses, the deceased’ husband or wife or from any of the members who are financially capable should finance it. Where none of the family is financially capable of the burial expenses, the deceased’ neighbor or Muslim Community around the area should finance it.
Also, the burial expenses that are chargeable against the deceased’ property do not include extravagant expenses incurred.
3. Bequest (Wasiyah)
Bequest is the giving of one’s estate to individuals or organizations, through the provision of a Will or an Estate Plan. A Muslim can bequest a Maximum of one-third (1/3) of his estate. Will is allowed under Islamic law of succession, provided it distributes not more than one-third (1/3) of the deceased property.
For a Will to be valid, it must have been made when the owner is hail and hearty. This means that where a Will is written on a sickbay while the owner is seriously ill, or on a death bed (i.e., Maradul-Mawt – when death is imminent), such Will shall be rendered invalid, because, at that time, the property has returned to the real owner (the almighty Allah).
It should be noted that a Will cannot be made in favor of any legal heir.
To effectively carry out the above obligations, it is advisable to contact an expert who is versed and knowledgeable in the Islamic Law of Succession. At Fiduciary Services Limited, we have professionals and experts in Islamic law of succession who can assist you with your Islamic succession plan. You can reach out to us at firstname.lastname@example.org for more inquiries.
Shukran Jazeelan for reading.
See you next month!