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The Rights Related to the Estate
Author : Dr. Mufti Sa`eid Farhan
Date Added : 09-10-2024

 

Praise be to Allah, The Lord of The Worlds and may His Peace and Blessings be upon Prophet Muhammad and upon all of his family, companions, and those who follow him.

When the son of Adam dies, all the wealth he possessed at the time of his death becomes part of his estate, whether it is movable wealth like money and furniture or immovable like land and property. This also includes the outcome of efforts he made during his life, which yielded results after his death, such as setting up a fishing net in which a catch is found, blood money (Diya), compensation for injury (Arsh), or a deposit he left with one of his children. [Kindly refer to Mughni Al-Muhtaj, vol.4, pp.7].

There are four rights related to this estate, ordered as follows:

First Right: Preparing the Deceased

This refers to washing, shrouding, and burying the deceased in a manner appropriate for their status. Since preparing the deceased is one of their needs, it should be done as if fulfilling their worldly needs-without extravagance or stinginess, in line with their financial situation.

No other right precedes the right of preparing the deceased except for debts tied directly to the estate, such as a mortgage or Zakat (Alms) that was due before death. The "right tied to the estate" means a debt that is connected to a specific item, such as mortgaged land or goods purchased by a bankrupt buyer.

Imam Al-Nawawi said: "If there is a right attached to the estate, such as Zakat, a loan, mortgaged property, or goods purchased by a bankrupt buyer, it takes precedence over the expenses of preparing the deceased. And Allah the Almighty knows best." [Minhaj Al-Talibin, pp.180].

The reason preparation takes precedence over settling debts is that the Prophet (peace and blessings be upon him) would order that the deceased be shrouded and buried immediately, as seen in the case of the man who died while in a state of ihram after being trampled by his camel. The Prophet (PBUH) said: "Bathe him with water mixed with the leaves of the lote tree and shroud him in his two (pieces of) cloth (Ihram), and do not cover his head for Allah will raise him on the Day of Resurrection Pronouncing Talbiya." [Agreed upon]. He did not inquire whether the deceased had debts, even though he (peace be upon him) would ask about debts when a funeral was brought before him. If the deceased had debts, he would say: "Pray over your companion" (Al-Bukhari. Kindly refer to "Mughni Al-Muhtaj," vol.4/pp.7). Since someone who is bankrupt is allowed to keep something to cover himself, this is even more the case for the deceased. Imam Al-Ramli said: "Because he needs it, just like the bankrupt, and even more so since his means of earning a living has ceased." [Nihayat Al-Muhtaj vol.6/pp.5].

The family of the deceased should be cautious not to spend from the estate on funeral and mourning ceremonies, as this is impermissible. The deceased's wealth becomes the right of the heirs after fulfilling other obligations. It cannot be used without their permission, and if there are minor heirs, it is forbidden to spend their share. Their permission is invalid since they are not legally competent to give it.

Let those who indulge in extravagance in funeral ceremonies from the deceased's wealth fear Allah, for such ceremonies are not part of preparing the deceased. Preparation, as mentioned earlier, is limited to washing, shrouding, and burying. Most of these ceremonies involve extravagance and, at times, showing off.

However, if one of the adult heirs voluntarily donates from their personal wealth within reasonable limits, there is no harm in that.

Second Right: Paying Debts

After the deceased is prepared, their debts are to be paid. These debts are of two types: debts owed to people and debts owed to Allah.

Debts owed to Allah include obligations such as vows, expiations, or obligatory Hajj, while debts owed to people are the well-known financial obligations, such as loans or debts from transactions. The deferred portion of the wife's dowry is also considered a debt that must be paid, a point often overlooked.

If the estate is sufficient to pay off all debts, they should be settled accordingly. If the estate is insufficient, and there are multiple debts, the prevailing opinion in the Shafi'i school is that debts owed to Allah, such as Zakat, expiations, and Hajj, take precedence over debts owed to people. Al-Khatib Al-Shirbini said: "Debts owed to Allah, such as zakat, expiations, and Hajj, take precedence over debts owed to people according to the more correct opinion" [Mughni Al-Muhtaj, vol.4/pp.7]. The Shafi'i scholars base this on the hadith of the Prophet (PBUH): "The debt due to Allah is the one which most deserves to be paid." [Agreed upon].

Third Right: Fulfilling Bequests

If the deceased made a bequest, it must be fulfilled, but only within one-third of the remaining wealth. It is not permissible to exceed this one-third unless the adult heirs give their consent, as their consent would be a donation of a right they own. These rights are fixed and it isn`t permissible they encroach upon each other. The Prophet (PBUH) told Saa’d Ibn Abi Waqqas when he wanted to make a bequest, "One-third, and one-third is a lot." [Agreed upon]. However, there are conditions and restrictions regarding bequests that cannot be elaborated here.

Fourth Right: Distribution of Inheritance

After the previous three rights are fulfilled, the remaining wealth is distributed among the heirs according to their shares prescribed in the noble Quran. However, it is important to note four points here:

1. The heirs' right to the estate is not fully established until the prior rights are fulfilled. If one of the heirs takes anything from the estate, even a small item like a cane the deceased used, they do so wrongfully, as it may belong to a creditor or a person entitled to a bequest.

2. Everything left by the deceased is part of the estate, whether it is of great or little value. No heir may take anything without the knowledge and consent of the other heirs, even after debts have been paid. If there are minor heirs, taking anything is strictly forbidden. Those who do so should beware of Allah's punishment for taking the wealth of an orphan, even if the orphan is their sibling. Allah, The Most Exalted Says (What means): "Indeed, those who consume the wealth of orphans unjustly are only consuming fire into their bellies. And they will be burned in a Blaze" [An-Nisa/10].

3. Some items that are thought to be inheritance may actually belong to the wife, such as furniture she brought as part of her dowry or gifts from her family. These are not part of the inheritance but belong to her, although she allowed her husband and children to use them.

4. Deposits left by the deceased with one of their children are not for that child to keep but are part of the inheritance, as explained earlier, and belong to all the heirs.

We ask Allah the Almighty to grant us a good end, forgive us, and cover our faults in this life and the Hereafter. He is The Guardian of that and Fully Capable of it. Our final call is praise be to Allah, The Lord of The Worlds.

 

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Summarized Fatawaa

What is the ruling of Islamic Law regarding one who slaughters a ewe and it turns out to have been pregnant, and is it permissible to slaughter the ewe if one knows it is pregnant?

Praise be to Allah, and peace and blessings upon our master, the Messenger of Allah.
If a person slaughters a ewe and it turns out to have been pregnant, the fetus becomes lawful (ḥalāl) by virtue of its mother's slaughter (tabaʿan li-ummihā).
It is stated in Mughnī al-Muḥtāj (Vol.6/P.158): "A fetus found dead [after the mother's slaughter], or found alive but in a state resembling that of a slaughtered animal [i.e., dying shortly after], becomes lawful — whether or not it had grown fur — provided it is found in the womb of a mother that was lawfully slaughtered, whether her slaughter was by cutting the throat, or by an arrow or hunting dog sent after her. This is based on the ḥadīth: 'The slaughtering of the fetus is [effected by] the slaughtering of its mother' [narrated by al-Tirmidhī, who graded it ḥasan, and by Ibn Ḥibbān, who graded it ṣaḥīḥ] — meaning that the slaughter which rendered the mother lawful renders the fetus lawful as well, by virtue of following her; and because the fetus is one of her constituent parts, and her slaughter renders lawful all of her parts."
This ruling differs, however, from the case of one who knows from the outset that the ewe is pregnant [and intends to sacrifice her specifically as the udḥiyah while pregnant] — in which case, according to the Shāfi'ī school, she does not fulfill the requirement of a valid sacrifice.
It is stated in Ḥāshiyat al-Bujayrimī 'alā al-Khaṭīb (Vol.4/P.335): "A pregnant animal does not fulfill the requirement [of a valid sacrifice], and this is the authoritative position (al-mu'tamad), because pregnancy diminishes the quality of the meat. As for why such an animal is nevertheless counted as complete [i.e., fully valid] in matters of zakāh, that is because the intent there is reproduction (nasl), not the quality of the meat.". And Allah, the Most High, knows best.

How should the udhiyah be distributed?

Praise be to Allah, and peace and blessings be upon our master, the Messenger of Allah.
 
It is obligatory to give the poor a portion of the meat from a voluntary sacrifice (Udhiyah al-Tatawwu’), which should not be less than approximately half a kilogram of raw meat. Other parts do not suffice for this obligation, such as the liver, tripe, or intestines.
It is Sunnah for the one offering the sacrifice to divide it into thirds: one-third for himself and his household to eat, one-third to be given as charity to the poor, and one-third to be given as a gift to friends and neighbors, even if they are wealthy. And Allah the Almighty knows best.

What is the ruling on swearing an oath by the Prophet ﷺ, and does such an oath take effect according to Imām Aḥmad ibn Ḥanbal, requiring expiation upon its breach?

All praise is due to Allah, and peace and blessings be upon our master the Messenger of Allah ﷺ.
Swearing an oath by a created being is disliked (makrūh) in our Shāfiʿī school. Shaykh al-Islām Imām al-Nawawī, may Allah have mercy upon him, states: "Swearing by a created being is disliked — such as swearing by the Prophet, the Kaʿbah, Jibrīl, the Companions, or the Prophet's family. Al-Shāfiʿī, may Allah have mercy upon him, said: 'I fear that swearing by other than Allah the Almighty may constitute an act of disobedience.' The scholars of the school explained this to mean: that is, something forbidden and sinful — indicating that he had some hesitation in the matter. Al-Imām stated: the established position of the school is that it is categorically not forbidden, but rather disliked. Furthermore, whoever swears by a created being, his oath does not take effect and no expiation (kaffārah) is required if he breaks it." [Rawḍat al-Ṭālibīn wa ʿUmdat al-Muftīn, Vol. 11/P.6]
According to the Ḥanbalī school, however, expiation becomes obligatory upon one who swears by our master the Prophet ﷺ and then breaks his oath. Imām al-Bahūtī al-Ḥanbalī, may Allah have mercy upon him, states: "No expiation is required for swearing by other than Allah the Almighty, even if the oath is broken — because expiation was made obligatory for swearing by Allah and His attributes, out of reverence for His names, and nothing else is equal to Him in this regard... except in the case of swearing by our Prophet Muḥammad ﷺ, for expiation becomes obligatory when one swears by him and then breaks the oath. This was explicitly stated in the narration of Abū Ṭālib, because he is one of the two conditions of the two testimonies of faith by which a disbeliever becomes a Muslim. Ibn ʿAqīl held the view that swearing by any of the other prophets, peace and blessings be upon them all, carries the same ruling." [Sharḥ Muntahā al-Irādāt, Vol. 3/P.441]. And Allah the Almighty knows best.

The imam recited a verse containing a prostration of recitation (*sajdat al-tilāwah*) but did not prostrate. After the imam's *salām*, a follower (*maʾmūm*) performed a prostration of forgetfulness (*sujūd al-sahw*) because the imam had not performed the prostration of recitation. Is it permissible to go against the imam in this way?

All praise is due to Allah, and peace and blessings be upon our master, the Messenger of Allah.
There is no sin on the imam if he omits the prostration of recitation (sujūd al-tilāwah), even deliberately. The maʾmūm (the one following the imam) is obliged to follow the imam in the prayer, so if the imam does not perform the prostration of recitation, it is not permissible for the follower to prostrate, because the imam is appointed only to be followed.
If the follower introduces a prostration after the imam’s salām but before his own salām, in a case where there is no prostration of forgetfulness (sujūd al-sahw), his prayer is invalidated if he knew it to be prohibited. Otherwise, he is excused on account of his ignorance and his prayer is not invalidated.
It is stated in Ḥāshiyat al-Imām al-Jamal ʿalā Fatḥ al-Wahhāb: “His statement: ‘So the omission of the hayʾāt (the non-essential sunnahs of the prayer) is not compensated for by prostration; if one prostrates for any of them deliberately, his prayer is invalidated, unless he is excused due to his ignorance.’”
Since this issue is one that is hidden from the laymen, as it is among the subtleties of knowledge, and the laymen are excused for ignorance of whatever is of such a nature, and their act of obedience is not invalidated because of it, it may be said that the prayer of one who has not acquired knowledge of this issue is not invalidated, with the necessity of learning the rulings remaining. As for after knowing it, the prayer is invalidated. And Allah Almighty knows best.

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