4- ESTATE DIVISION
ESTATE DIVISION (IRTH)
(Estate division refers to the share allotted to each heir by Sacred Law. The scriptural basis for estate division, prior to the consensus of scholars, consists of the Koranic verses on inheritance (Quran 4:11-12, 4:176) and hadiths such as the one related by Bukhari and Muslim that the Prophet (Allah bless him and give him peace) said,
“Give the obligatory shares of the estate to those who deserve them, and the rest belongs to the closest male to the deceased.”
Encouragement to master the knowledge of estate division comes from such hadiths as the one from Ibn Mas’ud (Allah be well pleased with him) that the Prophet (Allah bless him and give him peace) said,
“Learn estate division and teach it to people, for I am someone who will be taken from you, and this knowledge will be taken from you and calamities win ensue, until two men will one day disagree about the obligatory apportionment and will not find anyone to judge between them.”)
HOW TO WORK AN ESTATE DIVISION PROBLEM
(n: To work an estate division problem, one should:
a) determine the amount of the deceased’s estate after deducting the expenses;
b) make a list showing which of the deceased’s heirs mentioned at IAA exist;
c) eliminate from the list any heirs with preventives;
d) on a sheet of paper, copy the parenthesized introductory paragraph (“summary of share,”) for every eligible heir that exists, such as the deceased’s:
1. husband;
2. wife;
3. father;
4. mother;
5. daughter.
(as mentioned, the shares of the above-named family members are not eliminated by anyone, though the shares of those named below may be eliminated by the existence of certain other heirs)
6. son’s daughter;
7. full sister;
8. half-sister from the same father;
9. grandfather (father’s father only);
10. grandmother;
11. half-brother or half-sister from the same mother;
12. and then the others (sons and so forth);
e) read section and cross off the list of heirs those whose shares are eliminated by the other existent heirs;
f) if any universal heirs exist, see which of them eliminates the shares of the other universal heirs;
g) make a table of the heirs remaining (after (e) and (f) above) like the tables, where one writes the type of heir, the fraction each deserves (with the universal heir receiving the remainder, if any), and then at the top writes the total shares (this being the common denominator of the fractions), after which one calculates the shares that go to each;
h) if the fractions (of those besides the universal heir) add up to more than one (the total estate), then one must adjust for this
i) but if the fractions add up to less than the total estate and there is no universal heir to inherit the rest, then one must redistribute the shares.
One may practice and test one’s skill at estate division by reading through the present section and doing the problems depicted in the tables, though to do all the problems one must have (or memorize) a full worksheet that contains all the information mentioned in (d), (h), and (i), above, plus the rules concerning universal heirs. Finally, it is best to check one’s answers with an Islamic scholar, preferably a teacher from whom to take instruction, since this is a subject that is easier to acquire from its masters than from books.)
EXPENSES DEDUCTED FROM THE ESTATE PRIOR TO ESTATE DIVISION
The first thing (obligatorily) taken from X’s property is the expense of preparing his body (such as the cost of the water to wash him, the washer’s fee, cost of the shroud and perfume placed therein, pallbearers’ fees, and so forth) and of hurrying him. These expenses are deducted before X’s debts are paid, his bequests fulfilled, or his estate divided, unless there is a financial obligation due on the property itself, such as:
1. when there is zakat (due from any year X neglected to pay it before his death);
2. when some of the property has been put up as collateral;
3. or when X dies bankrupt with unpaid-for merchandise among his property (which must be returned to the seller before paying other expenses from X’s property).
After the above are paid, the following measures are taken (and the sequence given is obligatory)
1. X’s debts are paid (though if a government takes non-Islamic estate taxes, these are deducted from the main part of the estate (before debts or bequests, as any other loss would be»;
2. then X’s bequests are carried out (from a third of what remains after debts);
3. and then X’s remaining property is divided between his estate division heirs.
HEIRS
X’s male heirs consist of:
1. X’s son;
2. x:’s son’s son, son’s son’s son, and on down;
3. X’s father;
4. X’s father’s father (the term grandfather throughout the book of inheritance refers only to this paternal grandfather), father’s father’s father, and on up;
5. X’s full brother, or half-brother from X’s father or mother;
6. the son of X’s full brother, or son of X’s half-brother from the same father;
7. X’s father’s full brother, or father’s half-brother from the same father;
8. the son of X’s father’s full brother or father’s half-brother from the same father;
9. and X’s husband.
X’s female heirs are:
1. X’s daughter;
2. X’s son’s daughter, son’s son’s daughter, son’s son’s son’s daughter, and on down;
3. X’s mother;
4. X’s grandmother (whether she is the mother of X’s father or mother), great-grandmother, and on up;
5. X’s full sister, or half-sister from the same father or mother;
6. and X’s wife.
EXTENDED FAMILY MEMBERS WHO DO NOT NORMALLY INHERIT
The following extended family members may not inherit from X’s estate (except under the conditions):
1. X’s daughter’s children (male or female);
2. X’s mother’s brother’s sons;
3. X’s sister’s children, the sons or daughters of X’s daughter’s children, or the sons or daughters of X’s sister’s children;
4. X’s brother’s (whether full brother’s, or half-brother’s from either parent) daughters;
5. X’s father’s brother’s (whether full brother’s, or half-brother’s from the same father) daughters;
6. X’s father’s half-brother from the same mother;
7. X’s mother’s father;
8. X’s mother’s brother or sister;
9. X’s father’s sister;
10. or anyone related to X through one of the above.
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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