A forgotten obligation – preparing a will
Abdullah bin ‘Umar (RA) narrated that Allah’s Messenger (ﷺ) said, “It is not permissible for any Muslim who has something to will to stay for two nights without having his last will and testament written and kept ready with him.” [Sahih al-Bukhari, Book of Wills and Testament 55, Hadith 1 and Sahih Muslim Book 25, Hadith 1]
If you die without leaving a Will, your wishes are not considered in regards to distribution of your estate and who should be the Guardian of your children. A person who dies without leaving a will is called an intestate person and in this case the state law will decide how their estate should be shared, rather than following the Islamic rules of distribution.
When a Muslim passes away, there are four financial duties which need to be performed:
- Payment of funeral expenses.
- Payment of all financial debts owed including unpaid dowry (mahr) and zakaat. In the UK, 40% Inheritance Tax is due if the value of your estate is above £325,000 (keep reading for details).
- Execution of their will (if prepared)
- Distribution of their estate amongst the heirs. The term ‘estate’ includes your home and its contents, your car, land, stocks and shares, jewellery, your savings and other items of value.
How much are my family due?
Muslims must follow all the commandments of Allah (SWT) as Allah, the Almighty, says, “It is not for a believer, man or woman, when Allah and His Messenger have decreed a matter that they should have any opinion in their decision. And whoever disobeys Allah and His Messenger, has indeed strayed into a plain error.” [Quran 33:36]
The Quran has a remarkable level of detail when it comes to distribution of inheritance, and further explanation is found in ahadith (Prophetic example) and the examples of the Sahaba (companions of the Prophet(SAW)). Following these rules protects society and pleases Allah(SWT) – a will should not be used to exclude family members from the rights Allah(SWT) has defined for them.
It was narrated from Abu Hurairah that the Messenger of Allah (ﷺ) said:“A man may do the deeds of the people of goodness for seventy years, then when he makes his will, he is unjust in his will, so he ends (his life) with evil deeds and enters Hell. And a man may do the people of evil for seventy years, then he is just in his will, so he ends (his life) with good deeds and enters Paradise.”Abu Hurairah said: “Recite, if you wish: “These are the limits (set by) Allah (STW) up to His saying: ‘a disgraceful torment’” [Quran 2:187] – narrated in the collection of Sunan Ibn Majah Vol. 3, Book 22, Hadith 2704, graded Hasan.
If you are uncertain about any of these rulings consult an Islamic scholar for guidance.
Allah (SWT) tells us how assets are shared out in Surah an-Nisa, Aayaat 11-12:
“Concerning your children, Allah commands you that a son should have the equivalent share of two daughters. If there are only daughters, two or more should share two-thirds of the inheritance, if one, she should have half. Parents inherit a sixth each if the deceased leaves children; if he leaves no children and his parents are his sole heirs, his mother has a third, unless he has brothers, in which case she has a sixth. [In all cases, the distribution comes] after payment of any bequests or debts. You cannot know which of your parents or your children is more beneficial to you: this is a law from Allah, and He is All Knowing, All Wise.
You inherit half of what your wives leave, if they have no children; if they have children, you inherit a quarter. [In all cases, the distribution comes] after payment of any bequests or debts. If you have no children, your wives’ share is a quarter; if you have children, your wives get an eighth. [In all cases, the distribution comes] after payment of any bequests or debts. If a man or a woman dies leaving no children or parents, but a single brother or sister, he or she should take one-sixth of the inheritance; if there are more siblings, they share one-third between them. [In all cases, the distribution comes] after payment of any bequests or debts, with no harm done to anyone: this is a commandment from Allah: Allah is All Knowing and Kind to all.”
Also, further in Surah an-Nisa, Aayaat 176:
They ask you [Prophet] for a ruling. Say, ‘God gives you a ruling about inheritance from someone who dies childless with no surviving parents. If a man leaves a sister, she is entitled to half of the inheritance; if she has no child her brother is her sole heir; if there are two sisters, they are entitled to two-thirds of the inheritance between them, but if there are surviving brothers and sisters, the male is entitled to twice the share of the female. God makes this clear to you so that you do not make mistakes: He has full knowledge of everything.’
How much can you give to charity?
In Islam, the wasiyyah refers to a 1/3 (or less) bequest that a Muslim can give after death. A wasiyyah can go to charity or relatives who are not otherwise heirs under the Islamic Rules of Inheritance.
Narrated Sa`d bin Abu Waqqas: The Prophet (ﷺ) came visiting me while I was (sick) in Mecca, (‘Amir the sub-narrator said, and he disliked to die in the land, whence he had already migrated). He (i.e. the Prophet) said, “May Allah bestow His Mercy on Ibn Afra (Sa`d bin Khaula).” I said, “O Allah’s Messenger (ﷺ)! May I will all my property (in charity)?” He said, “No.” I said, “Then may I will half of it?” He said, “No”. I said, “One third?” He said: “Yes, one third, yet even one third is too much. It is better for you to leave your inheritors wealthy than to leave them poor begging others, and whatever you spend for Allah’s sake will be considered as a charitable deed even the handful of food you put in your wife’s mouth. Allah may lengthen your age so that some people may benefit by you, and some others be harmed by you.” At that time Sa`d had only one daughter. [Sahih al-Bukhari 2742 , Book 55, Hadith 5]
How do you write a will?
A will is a legal document that states:
- Who benefits from and can use the assets from your estate
- How your property is to be dealt with
- Which of your trusted friends or family is in charge of distributing your estate – they are called your Executor.
You can also stipulate in your will how you would like your funeral and burial rites to be carried out in accordance with the practices of Islam.
Depending on the value of your assets and your understanding of the above context, you have three approaches to writing a will.
- You do not need a solicitor to prepare a will and you can write your will by yourself using the many free guides online such as the First Ethical will template authenticated by the Al-Qalam Shari’ah Scholar Panel which can be found here.
- There are also a range of digital services which put your relevant personal details into a prepared legal form such as www.onlineislamicwill.co.uk. This makes it easy for you to ensure you don’t miss out any details and can make updating and accessing your will easy in the future.
- There are some instances in which you should definitely seek professional legal advice including:
- You share a property with someone you are not married to;
- You want to leave money or property to a dependant who cannot care for themselves
- You have several family members who may make a claim on your will, such as a second spouse or children from another marriage
- You own property abroad or have foreign investments or bank accounts
- Your permanent home is outside the UK
- If the value of your assets is already or likely to be more than £325,000, you will be liable to pay up to 40% Inheritance Tax in the UK. You can calculate your likely inheritance tax here and find guidance on how to reduce this bill as well. Further information about Inheritance Tax is available from the UK government website.
In order to best manage your estate if you fall into this category, its best to seek specialist legal advice from a legal firm which understands the Islamic rules related to asset distribution, such as iWill solicitors.
What makes it legally binding?
For your will to be legally valid, you must:
- Be aged 18 or over
- Make it voluntarily
- Be of sound mind
- Put it in writing
- Sign it in the presence of two witnesses and
- Have it signed by your 2 witnesses, in your presence. These witnesses cannot be people who may profit from the will in some way including:
- Family members
- Your spouse or civil partner
- Beneficiaries you have left something to in the will or their relatives
- Anyone under the age of 18
- Someone who is fully or partially blind
- Anyone who might lack the mental capacity to understand what it is they are signing
If someone questions or challenges the will after you’ve died, the witnesses may be called upon to testify that you were willing and able to sign the will. They need to be able to confirm that it is your signature, that you were under no pressure to sign, that you knew it was a will and that they saw you do it.
Updating your will
You should review your will every 5 years and after any major change in your life e.g. getting married, separated or divorced, having a child, moving house or if the executor named in the will dies.
If you want to update your will, you need to make an official alteration (called a ‘codicil’) or make a new will. If you make any changes to your will you must follow the same signing and witnessing process.
Storing your will
Once you have written your will, you can keep your will at home, in a safe deposit box, with a solicitor or with a Probate Service. If you store it with a registered probate service, family members can search for the will online at the UK Probate service search.
You should tell your executor (the person you’ve chosen to carry out your will), close friend or relative where your will is stored.
UK will preparation advice can be found here at gov.uk.