Fatwa ID: 08666

 

 

Answered by: Maulana Abdurrahman Mohammad

 

Question:

 

I am making a living trust. Both my parents are alive and I have a brother. I am not married and have no children. I have a house, that is what I want to put in the trust. Please help me with the distribution of the estate. 

 

 

 

In the name of Allah, the Most Gracious, the Most Merciful

 

Answer:

 

It is important to note that under Islamic principles, inheritance distribution occurs only after a person passes away. Inheritance shares are determined at the time of death based on the living heirs as stipulated by the Shariah. The number and shares of inheritors may change due to the birth or death of family members, so it is premature and incorrect to allocate your wealth as inheritance during your lifetime.

 

 

Guidance on Establishing a Trust: While Islamic inheritance laws govern wealth distribution after death, setting up a trust during your lifetime is permissible and a proactive step to ensure your estate is handled appropriately.

 

 

Purpose of the Trust: A trust can be used to manage and distribute your assets according to your wishes while you are alive and to provide guidance after your passing. It does not replace inheritance laws but can complement them by ensuring proper management of your property.

 

 

Complying with Islamic Principles: You may stipulate that your estate is distributed according to Islamic inheritance laws (Shariah) after your death. Ensure that the trust does not conflict with Islamic principles. For example, avoid clauses that disproportionately favor one heir over another unless it aligns with the Shariah. Include a clause allowing for recalculations of inheritance shares at the time of death, as the heirs and their shares may change.

 

 

Legal Considerations: Trust laws and inheritance laws vary by country and state, so consult a qualified lawyer who understands both local laws and Islamic inheritance principles. Ensure the trust complies with legal requirements in your jurisdiction to avoid disputes or complications later.

 

 

Community and Professional Support: Seek recommendations from community members or Islamic scholars with expertise in estate planning. Look for Muslim lawyers or estate planners who have experience with Shariah-compliant trusts. Research templates and sample trusts online to familiarize yourself with common structures and provisions. Consult qualified Islamic scholars with inheritance knowledge and experience to help establish a trust that aligns with Islamic principles.

 

 

Understanding Islamic Inheritance Distribution: If your inheritance were to be distributed right now, and the only inheritors were your mother, father, and brother, the distribution under Islamic law would be as follows: your mother would receive her stipulated one-third share, your father would receive the remainder, and your brother would not inherit anything. This is because the presence of the father excludes siblings from inheritance in such situations.

 

 

“As for the ten by lineage, they are three from men and seven from women. As for the men, the first is the father, and he has three conditions: (1) the pure fixed share, which is one-sixth with the son or the son’s son, even if he is a descendant. (2) And the pure agnatic share, which is that no one else is left behind, so he has all the money by agnatic share. And likewise, if he meets with someone who has a fixed share but is not a son or a son’s son, such as a husband, mother, and grandmother, the one entitled to a fixed share takes his fixed share, and the remainder goes to the father through agnatic kinship. (3) And agnatic kinship and fixed share together, and that is with the daughter and the son’s daughter. He gets a sixth as a fixed share, and a half goes to the daughter, or two-thirds for two daughters or more, and the remainder goes to him through agnatic kinship.”

 

 

“The mother, and she has three cases: (1) one-sixth with the son and the son’s son, or two brothers and sisters from whatever side they are. (2) And one-third in the absence of these. (3) And one-third of what remains after the husband and wife’s share”

 

 

“Then the agnates themselves are four types: the portion of the deceased, then his ancestors, then the portion of his father, then the portion of his grandfather (and the closest is given precedence, then the closest of them) in this order. So the portion of the deceased is given precedence (such as the son, then his son, and if he is lower, then his ancestor, the father”

 

 

However, inheritance distribution is rarely straightforward. Often, there are other relatives who may qualify as heirs under Islamic law, such as grandparents, uncles, or nephews, and their shares must also be considered. It is essential to account for all potential heirs, as overlooking any rightful inheritor can lead to an incorrect distribution.

 

 

Learning Islamic Inheritance: For a deeper understanding of the principles and complexities of Islamic inheritance, studying a reliable text such as As-Siraji Fil Mirath is highly recommended. This classic work provides comprehensive insights into the laws of inheritance in Islam and can help you appreciate the wisdom and fairness of these divine guidelines. Consulting with an Islamic scholar or expert in inheritance law can also provide clarity tailored to your specific situation.

 

 

 

References:

 

[1] أَمَّا الْعَشَرَةُ بِالنَّسَبِ فَثَلَاثَةٌ مِنْ الرِّجَالِ وَسَبْعَةٌ مِنْ النِّسَاءِ أَمَّا الرِّجَالُ فَالْأَوَّلُ الْأَبُ وَلَهُ ثَلَاثَةُ أَحْوَالٍ: الْفَرْضُ الْمَحْضُ وَهُوَ السُّدُسُ مَعَ الِابْنِ أَوْ ابْنِ الِابْنِ وَإِنْ سَفَلَ، وَالتَّعْصِيبُ الْمَحْضُ وَذَلِكَ أَنْ لَا يُخَلَّفَ غَيْرُهُ فَلَهُ جَمِيعُ الْمَالِ بِالْعُصُوبَةِ

وَكَذَا إذَا اجْتَمَعَ مَعَ ذِي فَرْضٍ لَيْسَ بِوَلَدٍ وَلَا وَلَدِ ابْنٍ كَزَوْجٍ وَأُمٍّ وَجَدَّةٍ فَيَأْخُذُ ذُو الْفَرْضِ فَرْضَهُ وَالْبَاقِي لِلْأَبِ بِالْعُصُوبَةِ، وَالتَّعْصِيبُ وَالْفَرْضُ مَعًا وَذَلِكَ مَعَ الْبِنْتِ وَبِنْتِ الِابْنِ

فَلَهُ السُّدُسُ فَرْضًا وَالنِّصْفُ لِلْبِنْتِ أَوْ الثُّلُثَانِ لِلْبِنْتَيْنِ فَصَاعِدًا وَالْبَاقِي لَهُ بِالتَّعْصِيبِ، كَذَا فِي خِزَانَةِ الْمُفْتِينَ.

 

(Al-Fatāwā Al-Hindiyya, vol. 6, pg. 451, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)

 

[2] وَالثَّالِثَةُ – الْأُمُّ وَلَهَا ثَلَاثَةُ أَحْوَالٍ: السُّدُسُ مَعَ الْوَلَدِ وَوَلَدِ الِابْنِ أَوْ اثْنَيْنِ مِنْ الْإِخْوَةِ وَالْأَخَوَاتِ مِنْ أَيْ جِهَةٍ كَانُوا وَالثُّلُثُ عِنْدَ عَدَمِ هَؤُلَاءِ وَثُلُثُ مَا يَبْقَى بَعْدَ فَرْضِ الزَّوْجِ وَالزَّوْجَةِ

 

(Al-Fatāwā Al-Hindiyya, vol. 6, pg. 449, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)

 

[3] ثُمَّ الْعَصَبَاتُ بِأَنْفُسِهِمْ أَرْبَعَةُ أَصْنَافٍ جُزْءُ الْمَيِّتِ ثُمَّ أَصْلُهُ ثُمَّ جُزْءُ أَبِيهِ ثُمَّ جُزْءُ جَدِّهِ (وَيُقَدَّمُ الْأَقْرَبُ فَالْأَقْرَبُ مِنْهُمْ) بِهَذَا التَّرْتِيبِ فَيُقَدَّمُ جُزْءُ الْمَيِّتِ (كَالِابْنِ ثُمَّ ابْنِهِ وَإِنْ سَفَلَ ثُمَّ أَصْلُهُ الْأَبُ

 

(Radd Al-Muhtār, vol. 6, pg. 774, Darul Fikr Beirut)

 

 

 

 

Only Allah (عَزَّ وَ جَلَّ) knows best

Written by Maulana Abdurrahman Mohammad

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham