CHAPTER 1 : WHY WRITE A WILL?
Why Write a Will?
The money and material property that we possess in this world is a trust from Allah. During our lifetime, we are required to use it in the way that is most pleasing to our Lord (swt).
On the Day of Judgement, Allah (swt) will surely ask us about our wealth, how did we earn it, and how did we spent it.
Ibn Masud and Abu Burazah reported that Allah’s Messenger (pbuh) said:
‘A human being’s feet will not depart from before his Lord, on the Day of Resurrection, until he is questioned about five things:
1. His lifetime — how did he consume it?
2. His youth and body — how did he utilize it?
3. His wealth — how did he earn it,
4. and how did he spend it?
5. And what did he do in regard to what he knew?’
(Recorded by at-Tirmidhi. Verified to be authentic by al-Albani (as-Sahihah no. 946).)
Part of our fulfillment of the trust is that we strive to make sure that, after our death, the wealth is passed down to those who deserve it. Of course, Allah (swt) has already decreed in His Book the way that our estate should be divided after our death. But there are a few concerns:
1. The local authorities may not recognize Allah’s law in this regard. Unless we require its application in our will, our estate may be divided in a different way.
2. There might be individuals to whom we owe money, and others who owe us money. Such rights and duties must be settled before the estate can be correctly divided among the heirs. Clarifying this before death is vital in order to prevent confusion afterwards.
3. Allah’s Messenger (pbuh) has given us the option of bequeathing up to one-third of our estate before the rest is divided among our legal heirs. Some non-inheriting relatives and other individuals and institutions might be in dire need of whatever monetary support we are able to provide to them.
4. The Muslims are generally very ignorant about the Islamic teachings, especially in funeral and mourning-related issues. We may need to express some guidelines to prevent violations to Islam during our funeral.
These are just a few of the many reasons that make writing a will an obligation that should never be neglected. Neglecting it constitutes a permission for unfairness and injustice to rule when we have the ability to stop it.
Muslims Living in Non-Islamic Countries
As indicated above and will be further discussed next chapter, writing a will is a religious obligation for all Muslims who possess something worth bequeathing.
This obligation is further emphasized for Muslims living or possessing property in a non-Islamic country. They should write their will and make sure that the Islamic requirements in it are legally binding on the executors and heirs. If they fail to do so, their estate may be distributed in discord with the Islamic law.
All states of the United States, for example, have laws to divide the estate of a person who dies “intestate” — without a will. However, dying intestate has several problems: it involves a great deal of delay in the settlement of the estate; if the court were to appoint a lawyer as administrator, his fees may be very expensive; and most importantly, the state’s method of dividing the assets of the estate will not conform with Islam.
Thus, a will should answer three basic questions:
1. How should the property be distributed?
2. Who should settle the deceased’s financial affairs?
3. Who should take care of the deceased’s minor children?
The answers involve making certain decisions.
One of the first decisions will be to select a person to serve as the executor. The executor’s responsibility is to assemble the property, inventory it, pay the deceased’s debts, pay the funeral expenses, file estate and income tax returns, pay any taxes due, sell property if necessary to meet all obligations, distribute the remaining property according to the will, and submit a final accounting to the beneficiaries and the probate court.
If there are minor children in the family, a guardian should be appointed for them in the will. One must be concerned, for instance, with: who will take care of the children if both parents die together at a young age. Muslims certainly would not want their children to be brought up by non-Muslims.
Many scholars have prepared wills in Arabic that address some of the requirements indicated above, but obviously neglect others pertaining to the Muslims in the west. A few wills have been written in English, some of them in reasonable conformation with the Sunnah. Among those is our previous work (refer to the Preface).
This book attempts to put together the best of all that is available. We believe that the will included in the Appendix is a sound one, both from the Islamic and legal stands. However, we do not assume any legal responsibility and carry no liability whatsoever in relation to using it by individuals as their final will and testament.
Our hope is that, by this, we are presenting to the Muslims in the West a much needed service, for which we seek Allah’s acceptance and forgiveness.
Seek What Benefits You the Most
Which Money Is the Best?
When one writes his will, and considers how his estate will be distributed after his death, he should think of something more important: How can he best benefit from the wealth that he currently controls? After he departs from this life and resides under the earth, would he be more concerned about how well his kin are enjoying the inheritance, or how well and secure he himself is? Even though the answer to this question is obvious, and everyone will rush to say that he would care more about his own well-being after death, we find that the people’s practice demonstrates the opposite!
‘Abdullah Bin Masud reported that the Prophet (pbuh) once asked the companions, ‘Who among you loves his heirs’ wealth more than his own?’ They replied, “O Allah’s Messenger! No one among us loves his own wealth more than that of his heirs.” He said:
’Know that none among you but his heirs’ wealth is dearer to him than his own wealth! Your wealth is that which you send forth (through charity), and your heirs’ is that which you leave behind.’ (Recorded by an-Nasa’i and Ahmad. Verified to be authentic by al-Albani (as-Sahihah no. 1486).)
In another report, Ibn Masud said that the Prophet (pbuh) said:
‘Who among you loves his heirs’ wealth more than his own? Verily, his wealth is that which he sends forth (as charity), and his heirs’ is that which he leaves behind.’ (Recorded by al-Bukhan and others.)
Do not Postpone the Good
One should not delay the charity that he wants to give until he feels the pangs of death. That would be too late, because his wealth is then being passed over to his heirs and is not his anymore. This is emphasized in the hadith of ‘Imran Bin Husayn in the next chapter in which he reports that the Prophet (pbuh) disallowed the charity of a man who freed his six slaves at the time of death.
Also, Abu Hurayrah reported that Allah’s Messenger (pbuh) said:
‘The best type of charity is that which you give when you are healthy and short of funds, fearing poverty and hoping for wealth. Do not postpone it till, when your soul reaches your throat, you say, “Give so- much to so-and-so, and so much to so-and-so. Verily, by then, so-and-so had already gotten so much.’ (Recorded by Ahmad, al-Bukhari, Muslim, and others.)
Thus, servant of Allah, when you sit down to write your will, remember this, and think earnestly of things you can do with your wealth while you live that will benefit you after death. (The reader is urged to read in this regard the chapter about “the things that benefit the dead” from our book, “Life in al-Barzakh”, which is Part 4 of this series (The Inevitable Journey).)
We ask Allah to guide us and grant us righteousness, a good end, and death upon the testimony of Islam.
By Muhammad Al-Jibali
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