Fatwa ID: 08625

 

 

Answered by: Alimah Maryam Badshah 

 

Question:

 

I have a question regarding the sharing of inheritance after someone has passed away…

 

My grandmother passed away nearly a year ago. The inheritors of her assets are her only daughter (my mother) and only son (my uncle).

 

My mother has requested to my uncle for the assets to be shared equally (which I understand is permissible so long as all parties agree) as she had done a lot more for their mum compared to my uncle. Other members of the family can vouch for this. My uncle has said he’ll think about sharing equally and then at times, he has said he is going to share according to Islamic law which in this scenario would be 2 parts for the son, 1 part for the daughter.

Now I’ve heard about the wisdom behind sharing 2 parts for the son, 1 part for the daughter in the sense that the daughter only gets 1/3 since she could also have a father, husband, brother and son to provide for her. The son would get 2/3 since he has others to provide for.

 

In my mother’s case, she has no father or husband as both have passed away. Regarding her brother, my uncle (the one mentioned in this matter), I don’t think he would be willing to provide for my mother since the relationship is not the best. My mother does have a working son (me) but given my circumstances, it would be difficult for me to financially provide for her long term. Alhamdulillah I have managed to do it so far but it’s becoming difficult since other matters have come into my life.

 

As far as I’m aware, my uncle works and lives with his wife. He has 2 daughters who are both married and live separately. My mother does not work (she’s a few years from retirement). My late father used to provide for her financially. My sister, who works, is currently living with my mother.

 

NOTE: At the time of my grandmother’s passing, my sister was NOT living with my mother i.e. mother was living alone. It’s only been like this for the past few months due to other circumstances.

 

The question I have is:

 

Given the above, does my mother have the right to:

1. a) an equal share of the inheritance i.e. 1/2
2. b) something more than the Islamically prescribed 1/3 but less than 1/2 e.g. 5/12
3. c) just the Islamically prescribed 1/3

 

In addition to the above, I’d also like some advice on the following points please:

 

1. Just before my grandmother passed away, my uncle mentioned, in front of others, that there was a will and he mentioned the names of two witnesses who were on the will. He also mentioned the same names after the passing of my grandmother. Also, after the passing of my grandmother, my uncle had never shared the will openly with my mother. This is even after trying to persuade him time and again. We had to get a copy from online and noticed the following:

 

1. a) the will wasn’t written according to Islamic principles i.e. splitting of inheritance between the children. It was all in the name of my uncle (I don’t see this as an issue though since my uncle is willing to go according to Islamic law).
2. b) the names of the witnesses on the will were different to those that my uncle mentioned before and after my grandmother passed away (the will was dated in 1992 so it’s not been edited anytime near my grandmothers passing)

 

My mother would like to ask my uncle about the discrepancy with the names of the witnesses on the will and some other points however he is not willing to discuss in an open and transparent manner. Is this something he needs to do? Does my mother have the right to ask questions and get answers for this given the inheritance is something she is entitled to?

 

2. My uncle has been dealing with the inheritance very discreetly. He didn’t provide any updates. Only when my mother asked him 6/7 months down the line did he mention some stuff. Then he went quiet again. I and a couple of other elders in our family are trying to persuade my uncle to sit down with my mother so everything can be sorted, including the calculations and splitting of the inheritance. However, he is refusing. Instead, he sent a letter to my mother stating an amount which she needed to accept within 28 days and send a response back! The letter does not show any calculations, income receipts (sale of house, gold), payment receipts etc so it’s not clear how the amount has been calculated.

 

Also, after my grandmother passed away, there was a handful of outstanding payments on her name. My mother used to look after the bank account of my grandmother so gave £2000 from this account to my uncle so he could make the payments. He says the money has finished and gave a list of what he spent it on but has not shown any receipts.

 

My uncle is not being open and transparent and does not want to sit with my mother and other elders to go through the hisaab (I don’t think online is an option since he’s not willing to share his personal details online). Again, given the inheritance is something my mother is entitled to, does she have the right to request and see all of the calculations, income receipts, payment receipts etc. before accepting any amount?

 

3. My uncle sent me a message mentioning he spoke to an Aalim (who my uncle hasn’t shared the name of) who said that my mother is responsible for the zakaat on the inheritance which she is supposed to receive and that it was her responsibility from 3rd Jan 2025 (the date on the letter which my uncle sent to my mother).

 

NOTE: The Aalim has only heard my uncle’s side of the matter. My uncle hasn’t shared the details of how the matter was presented to the Aalim. I think one of the elders in our family asked for a name but it wasn’t given.

Now, at this moment in time, my mother is not sure if she’s going to receive this inheritance. I’d say it’s 50/50 at the moment. Also, how is my mother supposed to pay zakaat on something which she doesn’t even know the correct value of since my uncle is not willing to sit and do hisaab of the inheritance?

 

NOTE: My uncle currently holds all the inheritance. He wants to transfer an amount without showing any hisaab, proof or answering questions.

 

Based on the above, is my mother responsible for the zakaat on the inheritance that my uncle still holds? If yes, how would she go about calculating given she doesn’t know the correct value and if she’s going to receive it.

 

4. We have not been able to respond to my uncle’s letter which he sent due to a more urgent family matter arising. Alhamdulillah this urgent matter was resolved recently hence I’m now able to prioritise this matter again.

 

Since a response to the letter wasn’t sent, my uncle has more recently sent another message mentioning he spoke to an Aalim who said that if my mother doesn’t collect this amount of inheritance soon (still no hisaab, proof or calculations shown), then my uncle can donate it all to sadaqah and provide my mother with a receipt.

 

My uncle says he wants my mother to have this inheritance, but he can’t keep holding onto it indefinitely as it holds a significant burden over him and his family. He’s not mentioned how it’s a burden. Regardless, if it is a burden, then he’s had many opportunities to resolve this in the correct manner and still does have a chance since me, my mother and other elders in the family are willing sit, discuss and resolve the matter.

 

He has also said in his message that if he doesn’t receive my mother’s bank details by the end of Ramadhan 2025, he’ll go ahead with the sadaqah donation as advised by the Aalim and provide my mother a receipt of the chosen charity the money is donated to.

 

Again, the Aalim’s name nor the way in which the matter was presented to the Aalim, has not been shared. I have responded back to my uncle asking for these details.

 

NOTE: I have responded to his latest message with reasons as to why the letter wasn’t responded to, asking for the Aalim’s name and details so that I may reach out to him and tell him my mother’s take on the matter, that the right way is to resolve this inheritance matter in an open and transparent manner with witnesses/elders and that the opportunity to do this still remains.

 

Keeping in mind why the letter has not been responded to, the calculations of the hisaab has not been shared and my uncle’s many refusals to resolve the matter in an open and transparent way, can my uncle donate my mother’s share of the inheritance in this manner?

 

5. The elders in our family are still trying to get my uncle to sit with my mother and resolve this matter. However, if all fails, what would you advise:

 

1. a) Should my mother just accept the random amount with the intention that hisaab will be done in the aakirah?
2. b) Should my mother reject the random amount (since there’s no hisaab) with the intention that hisaab will be done in the aakirah?
3. c) Any other advice you can give would be appreciated

 

I apologise for the very lengthy question. I just want to make sure I do everything to ensure my mother gets her rights in the correct way inshaAllah. I look forward to hearing from you.

 

 

 

 

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

 

 

Answer:

 

The distribution of inheritance occurs after funeral expenses, debts and possible bequests to non-heirs have been paid. Thereafter, all assets and property are to be distributed together as soon as possible according to the Islamic rules of inheritance. It should be kept in mind that inheritance distribution should be conducted in a transparent manner with all heirs present in order to prevent any future disputes.^[1]

 

After paying for your grandmother’s funeral expenses, the rest of her assets are to be paid into any outstanding debts that she held. If any wealth remained after her debts had been cleared, the remainder is to be distributed as bequests and inheritance. In Islam, any will written by your grandmother would only affect ⅓ of her final assets even if she bequeathed all her wealth to a single individual, and this bequest cannot be given to someone who is already receiving a share from the inheritance unless the other heirs consent to it.^[2]

 

 

As for inheritance shares, your mother has a right to half of what your brother receives. In the case where the only heirs are your mother and her brother, this would constitute ⅓ of the entire assets for your mother, and ⅔ for your uncle. If your uncle wishes to relinquish any part of his right to the full ⅔, he can give it as a gift to your mother after he receives it as his share, although it would not be permissible for your mother to claim more than her stipulated share as inheritance.^[3]

 

Inheritance is a form of wealth that is owed to a person and is not considered to be in their possession until it has been received. As such, there is no zakat on inheritance until it has been fully received by its owner and a year has passed since it was received. Your mother is not required to give any zakat until a year passes from the day she actually receives it.^[4]

 

It is the responsibility of the one to whom the distribution of inheritance has been entrusted (executor of the estate) to safeguard and manage the deceased’s assets from any loss until it is swiftly distributed to the heirs. An executor has no right to withhold the assets nor render any assets into currency except for what is necessary in order to pay off the deceased’s debts. Inheritance is considered the property of the heirs from the moment the deceased passes away. Therefore, the executor of the estate has no right to give any asset in charity and they will be held liable if they give away any heir’s share, as this is considered a destruction and loss of the heir’s property.^[5]

 

 

As mentioned previously, an executor must distribute the inheritance Islamically as soon as possible. This is to prevent any expense on the distributors behalf, as well as any unnecessary loss of the overall assets. If an executor does not fulfill their responsibilities the duty should be given to a trustworthy individual whom all heirs agree on.^[6] When dealing with inheritance, one should keep in mind the ayahs after those regarding the distribution of inheritance. Allah (swt) warns us in the Qur’an of the consequences of violating the compulsory (fardh) laws of inheritance:

“These are the limits [set by] Allah, and whoever obeys Allah and His Messenger will be admitted by Him to gardens [in Paradise] under which rivers flow, abiding eternally therein; and that is the great attainment. And whoever disobeys Allah and His Messenger and transgresses His limits – He will put him into the Fire to abide eternally therein, and he will have a humiliating punishment.” Surah An-Nisa’ (4:13-4) ^[7]

 

As there are also several aspects which require clarification I suggest you seek the assistance of a qualified Islamic counsellor or mediator who can help you all reach an agreeable conclusion regarding the inheritance.

 

 

 

References:

[1]

التَّرِكَةُ تَتَعَلَّقُ بِهَا حُقُوقٌ أَرْبَعَةٌ: جِهَازُ الْمَيِّتِ وَدَفْنُهُ وَالدَّيْنُ وَالْوَصِيَّةُ وَالْمِيرَاثُ. فَيُبْدَأُ أَوَّلًا بِجَهَازِهِ وَكَفَنِهِ وَمَا يُحْتَاجُ إلَيْهِ فِي دَفْنِهِ بِالْمَعْرُوفِ… ثُمَّ بِالدَّيْنِ… ثُمَّ تُنَفَّذُ وَصَايَاهُ مِنْ ثُلُثِ مَا يَبْقَى بَعْدَ الْكَفَنِ وَالدَّيْنِ إلَّا أَنْ تُجِيزَ الْوَرَثَةُ أَكْثَرَ مِنْ الثُّلُثِ ثُمَّ يُقَسَّمُ الْبَاقِي بَيْنَ الْوَرَثَةِ عَلَى سِهَامِ الْمِيرَاثِ…

Al-Fatāwa al-Hindiyyah (Vol.6, pg.447, Dār Al-Fiqr)

[الْوَقْتِ الَّذِي يَجْرِي فِيهِ الْإِرْثُ]

وَأَمَّا بَيَانُ الْوَقْتِ الَّذِي يَجْرِي فِيهِ الْإِرْثُ فَنَقُولُ هَذَا فَصْلٌ اخْتَلَفَ الْمَشَايِخُ فِيهِ قَالَ مَشَايِخُ الْعِرَاقِ الْإِرْثُ يَثْبُتُ فِي آخِرِ جُزْءٍ مِنْ أَجْزَاءِ حَيَاةِ الْمُوَرِّثِ وَقَالَ مَشَايِخُ بَلْخٍ الْإِرْثُ يَثْبُتُ بَعْدَ مَوْتِ الْمُوَرِّثِ

Al-Bahr Al-Rāiq (Vol.8, pg.557, Dār Al-Kitab Al-Islami)

مُنَاسبَتُهُ لِلْوَصِيَّةِ أَنَّهَا أُخْتُ الْمِيرَاثِ، وَلِوقُوعِهَا فِي مَرَضِ الْمَوْتِ، وَقِسْمَةُ الْمِيرَاثِ بَعْدَهُ وَلِذَا أُخِّرَ عَنْهَا، ثُم الْفَرَائِضُ جَمْعُ فَرِيضَةٍ: وَهِيَ مَا يُفْتَرَضُ عَلَى الْمُكَلَّفِ… الْمَوَارِيثِ فَرَائِضُ، لِأَنَّهَا مُقَدَّرةٌ لِأَصْحَابِهَا ثُمَّ قِيلَ لِلْعِلْمِ بِمَسَائِلِ الْمِيرَاثِ عِلْمُ الْفَرَائِضِ وَلِلْعَالِمِ بِهِ فَرْضِيٌّ…

Raddul Muhtār (Vol.6, pg.757, Dār Al-Fiqr)

 

 

 

[2]

ثُمَّ تَصِحُّ الْوَصِيَّةُ لِأَجْنَبِيٍّ مِنْ غَيْرِ إجَازَةِ الْوَرَثَةِ، كَذَا فِي التَّبْيِينِ وَلَا تَجُوزُ بِمَا زَادَ عَلَى الثُّلُثِ إلَّا أَنْ يُجِيزَهُ الْوَرَثَةُ بَعْدَ مَوْتِهِ وَهُمْ كِبَارٌ وَلَا مُعْتَبَرَ بِإِجَازَتِهِمْ فِي حَالِ حَيَاتِهِ، كَذَا فِي الْهِدَايَةِ.

…وَلَا تَجُوزُ الْوَصِيَّةُ لِلْوَارِثِ عِنْدَنَا إلَّا أَنْ يُجِيزَهَا الْوَرَثَةُ، وَلَوْ أَوْصَى لِوَارِثِهِ وَلِأَجْنَبِيٍّ صَحَّ فِي حِصَّةِ الْأَجْنَبِيِّ وَيَتَوَقَّفُ فِي حِصَّةِ الْوَارِثِ عَلَى إجَازَةِ الْوَرَثَةِ إنْ أَجَازُوا جَازَ وَإِنْ لَمْ يُجِيزُوا بَطَلَ وَلَا تُعْتَبَرُ إجَازَتُهُمْ فِي حَيَاةِ الْمُوصِي حَتَّى كَانَ لَهُمْ الرُّجُوعُ بَعْدَ ذَلِكَ، كَذَا فِي فَتَاوَى قَاضِي خَانْ.

Al-Fatāwa al-Hindiyyah (Vol.6, pg.90, Dār Al-Fiqr)

اعْتَبَرَ أَبُو حَنِيفَةَ – رَحِمَهُ اللَّهُ تَعَالَى – فِي اسْتِحْقَاقِ هَذِهِ الْوَصِيَّةِ أَرْبَعَ شَرَائِطَ:… وَالرَّابِعُ – أَنْ لَا يَكُونَ مِمَّنْ يَرِثُ مِنْ الْمُوصِي وَيَسْتَوِي فِيهِ الرِّجَالُ وَالنِّسَاءُ

Al-Fatāwa al-Hindiyyah (Vol.6, pg.116, Dār Al-Fiqr)

 

 

[3]

وَإِذَا اخْتَلَطَ الْبَنُونَ وَالْبَنَاتُ عَصَبَ الْبَنُونَ الْبَنَاتِ فَيَكُونُ لِلِابْنِ مِثْلُ حَظِّ الْأُنْثَيَيْنِ

Al-Fatāwa al-Hindiyyah (Vol.6, pg.448, Dār Al-Fiqr)

 

 

[4]

وَأَمَّا الدَّيْنُ الضَّعِيفُ فَهُوَ الَّذِي وَجَبَ لَهُ بَدَلًا عَنْ شَيْءٍ سَوَاءٌ وَجَبَ لَهُ بِغَيْرِ صُنْعِهِ كَالْمِيرَاثِ، أَوْ بِصُنْعِهِ كَمَا لِوَصِيَّةٍ، أَوْ وَجَبَ بَدَلًا عَمَّا لَيْسَ بِمَالٍ كَالْمَهْرِ، وَبَدَلِ الْخُلْعِ، وَالصُّلْحِ عَنْ الْقِصَاصِ، وَبَدَلِ الْكِتَابَةِ وَلَا زَكَاةَ فِيهِ مَا لَمْ يُقْبَضْ كُلُّهُ وَيَحُولُ عَلَيْهِ الْحَوْلُ بَعْدَ الْقَبْضِ.

Badā’i’ Al-Ṣanā’i’ (Vol.2, pg.10, Dār Al-Kutub Al-’Ilmiyyah)

 

 

[5]

(قَوْلُهُ أَيْ ضَيَاعِهِ) الظَّاهِرُ أَنَّ الْمُرَادَ بِالْهَلَاكِ مَا يَعُمُّ التَّصَدُّقَ لِمَا سَيَأْتِي

Raddul Muhtār (Vol.6, pg.708, Dār Al-Fiqr)

لَا يَجُوزُ التَّصَرُّفُ فِي مَالِ غَيْرِهِ بِلَا إذْنِهِ وَلَا وِلَايَتِهِ إلَّا فِي مَسَائِلِ مَذْكُورَةٍ فِي الْأَشْبَاهِ.

Raddul Muhtār (Vol.6, pg.200, Dār Al-Fiqr)

قَوْلُهُ وَجَازَ بَيْعُهُ إلَخْ) بَيَانُ الْمَسْأَلَةِ أَنَّهُ إذَا لَمْ يَكُنْ عَلَى الْمَيِّتِ دَيْنٌ وَلَا وَصِيَّةٌ فَإِنْ الْوَرَثَةُ كِبَارًا حُضُورًا لَا يَبِيعُ شَيْئًا، وَلَوْ غُيَّبًا، لَهُ بَيْعُ الْعُرُوضِ فَقَطْ، وَإِنْ كُلُّهُمْ صِغَارًا يَبِيعُ الْعُرُوضَ وَالْعَقَارَ، وَإِنْ الْبَعْضُ صِغَارًا وَالْبَعْضُ كِبَارًا فَكَذَلِكَ عِنْدَهُ…

وَفِي الْعِنَايَةِ قَيَّدَ بِالْغَيْبَةِ لِأَنَّهُمْ إذَا كَانُوا حُضُورًا لَيْسَ لِلْوَصِيِّ التَّصَرُّفُ فِي التَّرِكَةِ أَصْلًا إلَّا إذَا كَانَ عَلَى الْمَيِّتِ دَيْنٌ أَوْ أَوْصَى بِوَصِيَّةٍ وَلَمْ تَقْضِ الْوَرَثَةُ الدُّيُونَ وَلَمْ يُنْفِذُوا الْوَصِيَّةَ مِنْ مَالِهِمْ فَإِنَّهُ يَبِيعُ التَّرِكَةَ كُلَّهَا إنْ كَانَ الدَّيْنُ مُحِيطًا، وَبِمِقْدَارِ الدَّيْنِ إنْ لَمْ يُحِطْ، وَلَهُ بَيْعُ مَا زَادَ عَلَى الدَّيْنِ أَيْضًا عِنْدَ أَبِي حَنِيفَةَ خِلَافًا لَهُمَا وَيُنْفِذُ الْوَصِيَّةَ بِمِقْدَارِ الثُّلُثِ، وَلَوْ بَاعَ لِتَنْفِيذِهَا شَيْئًا مِنْ التَّرِكَةِ جَازَ بِمِقْدَارِهَا بِالْإِجْمَاعِ

…(قَوْلُهُ أَوْ خَوْفِ خَرَابِهِ) تَقَدَّمَ فِي عَقَارِ الْكَبِيرِ الْغَائِبِ أَنَّ الْأَصَحَّ أَنَّهُ لَا يَبِيعُهُ لِذَلِكَ، وَالظَّاهِرُ أَنَّهُ لَا يَجْرِي التَّصْحِيحُ هُنَا لِأَنَّ الْمَنْظُورَ إلَيْهِ هَذَا مَنْفَعَةُ الصَّغِيرِ وَلِذَا جَازَ هُنَا فِي بَعْضِ هَذِهِ الصُّوَرِ مَا لَا يَجُوزُ فِي عَقَارِ الْكَبِيرِ تَأَمَّلْ

Raddul Muhtār (Vol.6, pg.710-1, Dār Al-Fiqr) and similarly in Al-Fatāwa al-Hindiyyah (Vol.6, pg.143, Dār Al-Fiqr)

 

 

[6]

الْأَوْصِيَاءُ ثَلَاثَةٌ أَمِينٌ قَادِرٌ عَلَى الْقِيَامِ بِمَا أُوصِيَ إلَيْهِ فَإِنَّهُ يُقَرَّرُ وَلَيْسَ لِلْقَاضِي عَزْلُهُ وَأَمِينٌ عَاجِزٌ فَالْقَاضِي يَضُمُّ إلَيْهِ مِنْ يُعِينُهُ وَفَاسِقٌ أَوْ كَافِرٌ أَوْ عَبْدٌ فَيَجِبُ عَزْلُهُ وَإِقَامَةُ غَيْرِهِ مَقَامَهُ

Al-Fatāwa al-Hindiyyah (Vol.6, pg.137, Dār Al-Fiqr)

 

 

[7]

﴿ تِلْكَ حُدُودُ اللَّهِ ۚ وَمَن يُطِعِ اللَّهَ وَرَسُولَهُ يُدْخِلْهُ جَنَّاتٍ تَجْرِي مِن تَحْتِهَا الْأَنْهَارُ خَالِدِينَ فِيهَا ۚ وَذَٰلِكَ الْفَوْزُ الْعَظِيمُ ۝ وَمَن يَعْصِ اللَّهَ وَرَسُولَهُ وَيَتَعَدَّ حُدُودَهُ يُدْخِلْهُ نَارًا خَالِدًا فِيهَا وَلَهُ عَذَابٌ مُّهِينٌ ۝﴾

Qur’an (4:13-4)

 

 

 

Only Allah (عز و جل) knows best.

Written by Alimah Maryam Badshah

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham