I want to know about inheritance in Islam, as we live in UK, if Muslim husband and wife jointly own any thing after one,s death it goes to survival unless there is a will.
In the name of Allah, the most Beneficent, the most Merciful.
Answer
Legally there are two types of joint ownership, joint equity or property co-buying. You can either own the property as ‘joint tenants' or as ‘tenants in common'. Do not be put off by the terminology. It has nothing to do with tenancies and applies to freehold or leasehold land.
Joint tenancy
Under this agreement the joint owners together own the whole property and do not have a particular share in it. If one of the owners dies the other automatically becomes the sole owner. This would be the case even if a will had been made leaving the deceased owner's ‘share' to someone other than the co-owner.
Tenancy in common
This is the opposite of joint tenancy in that the tenants in common each have a definite share in the property. For example A and B could own the property in equal shares, or A could own one fifth with B owning four fifths. This would be the most appropriate agreement where people want to own a property in separate pre-determined shares.
Under this form of ownership if one of the owners dies, his share of the property will pass on to whoever he specifies in a will, or if a will is not made, in accordance with the rules of intestacy (someone dying without leaving a will). If you are planning to make a will (and it would be wise to do so) you should have it drawn up before you sign the transfer deed that passes the legal ownership of the property to you. This way you will save the time, money and inconvenience of having to change your will. (Extracted from www.firstrungnow.com)
With regards to your question, joint tenancy is a catalyst of depriving the heirs of their rightful shares. In many instances the wife obtains more than what she is really entitled to at the cost of depriving the other heirs from their stipulated portions. Like in the present case, the entire house would transfer to the wife of the second marriage and the children of the first marriage will not receive anything. Therefore, to save ourselves from the aforementioned problem, which clearly contravenes with the Shariah it is imperative that we make a will.
Saaiduna Abdullah Ibn Umar Radiallahu Anhu narrates that the Prophet of Allah Sallallahu Alahi Wasalam has said “It is not befitting for a Muslim who has something to make a Will of, to stay for two nights without having his last Will and Testament written and kept ready with him”. (Sahih Bukhari)
Making a Will does not mean one is allowed to distribute his wealth during his life. He should stipulate in the Will that “upon my death, my executors will distribute my wealth according to the Shariah” and this will be conducted by a Muslim Scholar or Mufti.
During ones lifetime one cannot distribute the portion of the inheritance for one is unaware who will be alive at the time of ones death. Even the death of one person changes what each heir would have received.
The following should be stipulated in a Will:
- The payment of funeral and burial expenses
- Payment of all debts owed to other people
- Payment of any bequest (wasiyah) including unpaid Zakat or fidyah for missing salah or fasting. However the condition is that it is only executed from one third of ones wealth.
- The distribution of the remaining wealth among the heirs according to the laws of the Shariah in consultation with a Muslim scholar or Mufti.
- Signing of the document by both the will maker and the relevant witnesses.
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham
