| Muslim Distribution |
Wasiat is a declaration of a person made during his life time with respect to his property or benefit thereof, to be carried out for the purpose of charity or for any other purpose permissible by Islamic Law, after his death. More importantly, the mechanism of a wasiat makes it possible for the deceased, whilst still alive, to choose a trusted person as an Executor for the purpose of administering his estate in accordance with his wishes once he leaves for the hereafter. Furthermore, in the case of a male testator, he is empowered by Muslim law to appoint a person whom he trusts most as a guardian of the property of his minor children.
Many also do not realise that by writing a Wasiat, a person is allowed to give away up to 1/3rd of his estate to be distributed to non-Faraid heirs (such as an adopted child). Thus, in a family where the children predeceased the parent, the parent can specify up to 1/3rd of his/her estate to be inherited by a grandchild (who would not get any inheritance otherwise). |   |
Many are not aware that the distribution of their estate to their heirs need not be confined solely to distribution in accordance with Faraid. Assets distributed during a person's lifetime need not be distributed in accordance with Faraid rules.
Under the doctrine of Harta Sepencarian, the husband and wife can declare specific assets acquired during the marriage as joint properties in stated proportions and in the event of death of one, the spouse is entitled to claim his/her portion from the deceased's estate before distribution in accordance with the Faraid rules. The Harta Sepencarian declaration should therefore be entered into between husband and wife on the distribution portion of the assets acquired during the marriage to avoid dispute later.
A Muslim can also create a trust to benefit his loved ones.
A trust that takes effect only upon the death of the Settlor invariably invokes the rigid operation of the Faraid Rules. This means that if a trust is created conditional upon death, the trust assets will be considered part of the Settlor's estate and distribution of the trust assets must then follow the Faraid Rules.
For a trust to be Islamic compliant, the trust must take effect immediately, although the total benefits thereof may be staggered through the years. Such trust assets will not then be frozen upon the death of the Settlor and the distribution of the trust assets will not be subject to Faraid.
Except where the trust is created by a parent in favour of his/her child, once a trust is created, it must be irrevocable to be Islamic compliant, and therefore the ownership of assets under the trust would have passed to the trustee holding in trust for the named beneficiaries.
Muslim Distribution FAQs:
1. | As I understand it, the Islamic Law of Inheritance (i.e. Faraid) already determines a deceased person's heirs as well as their respective shares. Why should I waste my time and money to have a Wasiat written? |
A: | Faraid provides distribution of inheritance for legal Muslim heirs. Wasiat, i.e. the Islamic Will, allows for the distribution of one-third of a deceased's estate to needy non-heirs. A testator may have some poor non-heirs or charities in mind. Writing a Wasiat gives an opportunity for him to continuously receive rewards from Allah after death for his act of bequeathing part of his estate to some poor non-heirs or to charities and other Islamic purposes. Besides, it enables the testator to make it clear who he wants as the executor of the estate and the guardian for the property of children if they are minors. |
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2. | Does Islam encourage the writing of Wasiats? |
A: | Islam encourages the writing of Wasiat. Narrated Abdullah bin Umar R.A: |
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3. | Even if Islam encourages the writing of Wasiats, it would be easier for me just to copy the sample provided, e.g. under the Selangor Islamic Will Enactment 1999. |
A: | The sample only provides a simple Wasiat, whereas customized Wasiats should be tailor-made to individual needs together with other services, such as trust, to living beneficiaries to prevent conflicts and uncertainties upon your death. |
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4. | Can I benefit my non-Muslim parents and relatives by writing a Wasiat? |
A: | Yes provided it is not more than 1/3 of your assets. |
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5. | I am an adopted child. Can I benefit under my adoptive parents' inheritance? |
A: | No. |
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6. | Can I benefit under my adoptive parents' Wasiat? |
A: | Yes. |
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7. | In Islam, have I the complete freedom to Wasiat all my property? |
A: | According to Islamic Law, a Muslim has the freedom to bequeath only one third of his net assets. |
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8. | How much can I Wasiat to members of my immediate family? |
A: | According to the Shafie School of Jurisprudence, a Muslim cannot devise his property to legal heirs except when all legal heirs give their agreement after the death of testator. In your case, you can devise more than 1/3 to your immediate family only if all your legal heirs give their consent after your death. |
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9. | Who amongst my relatives can never be displaced under my inheritance? |
A: | Subject to their being Muslims, your parents (how-high-so-ever), your spouse and your children can never be cut off from your inheritance. |
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