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What is an “Estate?”
All of the money and property owned by a particular person at the time of death is referred to as the person’s “estate.”
What is “estate planning” in the United States?
Estate planning is the process of designing a comprehensive plan for the division and administration of an individual’s estate both during that individual’s life and after death. An estate plan can be as simple or as complicated as each individual’s case merits.
An estate plan should only be created after consultation with a lawyer who can review your personal, familial and financial circumstances to determine the best process to manage your estate.
What is a “trust” under Illinois law?
A trust is a method of holding title to an asset wherein the grantor transfers possession of the asset to a trustee along with instructions on how to hold, manage and distribute the asset.
What do the terms “beneficiary,” “heir,” and “legatee” mean in estate planning?
An heir is someone who has a right to inherit a share of the estate upon a person’s death via intestacy laws. A legatee is someone who is designated in an estate plan to receive a gift. A beneficiary is an heir or legatee who receives benefits from a benefactor pursuant to an estate plan or some other legal instrument.
What do the terms “decedent,” “intestate,” and “testate” mean in estate planning?
A decedent is someone who has just passed away. A decedent who dies “intestate” is someone who passes away without a will. A decedent who dies “testate” is someone who passes away having a valid will gifting the assets of his estate.
Who does a “legatee” refer to?
A legatee is a person who receives property pursuant to a will or estate plan.
What is “Probate” in the United States?
Probate is the court-supervised process of administering your estate and transferring your property at death. Every state has different probate requirements and identifies who must go through probate before assets can be distributed to heirs. In Illinois, including Chicago, Naperville, Schaumburg and Libertyville, for example, a decedent’s estate must go through probate if they owned real estate or if the decedent had assets totaling over than $100,000. Where one of these factors is met, the beneficiaries/heirs (typically a surviving spouse or one of the children) must file a petition with the probate court to open the estate, prepare an affidavit stating the proper heirs of the decedent, give notice to all heirs and legatees, publish notice in a local newspaper, and, oftentimes, provide an accounting to the court. One way to avoid probate and many of its costs is to create an estate plan that includes a trust agreement.
Who does “Executor” refer to?
An executor of an estate is an individual appointed to administer the estate of a deceased person in accordance with their will. The executor is appointed either by the testator of the will (the person who makes the will) or by a court, in certain cases.
Who does “Guardian” refer to?
A guardian is an individual that is appointed to care for the decedent’s minor children. This is most commonly done through a will, or by a court in certain cases.
Who does “Healthcare Agent” refer to?
A healthcare agent is a person you to make medical treatment decisions on your behalf if you become too sick or injured to make or communicate those decisions yourself.
Who does “Property Agent” refer to?
A property agent is a person you appoint the legal right to manage and access the principal’s property in the event the principal is unable to do so themselves.
Who does “Trustee” refer to?
The trustee acts as a legal owner and manager of a trust’s assets and is responsible for ensuring those s assets are managed and distributed in accordance with the terms of the grantor’s trust.
How can Islamic Wills USA help me plan for disability?
Islamic Wills USA offers services that can help protect you and your family in the instance where you become disabled or unable to attend to your financial matters for any other reason (traveling abroad, deportation, etc.). Islamic Wills USA can draft a property power of attorney and a healthcare power of attorney, among other legal documents. Please see our Services and Rates page for more information.
In which states are Islamic Wills USA’s services available?
Islamic Wills USA provides legal services in Illinois and select other cities/states outside of Illinois. Additionally, we provide Islamic law consulting services nationally and work with reputable local attorneys where necessary. Please contact us at info@islamicwillsUSA.com to find out our availability in your state.
Are estate plans created by Islamic Wills USA valid in all 50 states?
Yes. An estate plan properly executed pursuant to the laws of any state will be valid in all 50 states.
What happens if I die without a will or estate plan in the United States?
If you do not have an estate plan, your beneficiaries are designated by your state’s statutory Probate Act and your assets will be distributed through the state’s intestacy laws and possibly through court-supervised probate proceedings. These distributions do not comply with Islamic laws.
What are the benefits of having an estate plan in the United States?
There are several compelling reasons to have an estate plan executed. These benefits include, but are not limited to: (1) it allows you to distribute your assets in a manner you prescribe, instead of the default distributions provisions set forth in your state’s probate law; (2) it avoids conflicts within the family in regards to your estate; (3) it allows your heirs to receive the assets faster than if they went through the probate court; (4) it can allow you to avoid probate court altogether, and the administrative costs and attorney time associated with it; (5) it may help you protect your assets from your or your beneficiaries’ creditors; (6) it may help you avoid estate taxes (for higher-value assets); and (7) it may help your heirs save on their income taxes.
Is executing a will sufficient for me?
It depends. A will is the most basic estate planning document, but it is not appropriate for all persons. Depending on your personal, familial and financial situation, a basic will may not be an appropriate estate plan for you and you may need to create trust agreements to manage your assets.
In fact, executing only a basic will may do more harm than good if not created with the advice of sound legal counsel. By way of example, if you have a beneficiary who is receiving government assistance, a distribution made through a will without a special needs trust agreement may leave your beneficiary ineligible for further government assistance, resulting in the loss of a significant source of future income in the future. There are numerous other examples that may apply to your situation.
What should I do with my executed will or estate plan after it has been executed?
First off, congratulations on taking the necessary step to protecting yourself and your loved ones. After you have executed a will or estate plan, store original copies in a safety deposit box and provide copies to your loved ones, as needed. Be sure to inform your loved ones about the location of your will as they will need to file it with the probate court upon your death. Trust documents are confidential and do not need to be filed with a court.
From where do the Islamic Laws of Inheritance Derive?
The Islamic laws of inheritance derive from four sources. In order of precedence, they are: (1) the Qur’an; (2) the Sunnah of the Prophet Muhammad (PBUH), (3) Ijma (i.e. a consensus of opinion amongst scholars); and (4) Qiyas (analogical reasoning based on the above sources).
The estate planning mandate is contained in verse 180 of Surah Baqarah, which provides the following:
Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable – a duty upon the righteous.
The core principles of inheritance law are primarily explained in Surah An-Nisaa, the fourth Surah (chapter) in the Qur’an, at verses 11-13 and 176. These verses have been translated to mean the following:
Allah instructs you concerning your children: for the male, what is equal to the share of two females. But if there are [only] daughters, two or more, for them is two thirds of one’s estate. And if there is only one, for her is half. And for one’s parents, to each one of them is a sixth of his estate if he left children. But if he had no children and the parents [alone] inherit from him, then for his mother is one third. And if he had brothers [or sisters], for his mother is a sixth, after any bequest he [may have] made or debt. Your parents or your children – you know not which of them are nearest to you in benefit. [These shares are] an obligation [imposed] by Allah . Indeed, Allah is ever Knowing and Wise. (4:11)
And for you is half of what your wives leave if they have no child. But if they have a child, for you is one fourth of what they leave, after any bequest they [may have] made or debt. And for the wives is one fourth if you leave no child. But if you leave a child, then for them is an eighth of what you leave, after any bequest you [may have] made or debt. And if a man or woman leaves neither ascendants nor descendants but has a brother or a sister, then for each one of them is a sixth. But if they are more than two, they share a third, after any bequest which was made or debt, as long as there is no detriment [caused]. [This is] an ordinance from Allah , and Allah is Knowing and Forbearing. (4:12)
These are the limits [set by] Allah , and whoever obeys Allah and His Messenger will be admitted by Him to gardens [in Paradise] under which rivers flow, abiding eternally therein; and that is the great attainment. (4:13)
They request from you a [legal] ruling. Say, “Allah gives you a ruling concerning one having neither descendants nor ascendants [as heirs].” If a man dies, leaving no child but [only] a sister, she will have half of what he left. And he inherits from her if she [dies and] has no child. But if there are two sisters [or more], they will have two-thirds of what he left. If there are both brothers and sisters, the male will have the share of two females. Allah makes clear to you [His law], lest you go astray. And Allah is Knowing of all things. (4:176)
The Islamic inheritance laws are also the subject of numerous Hadith, and have been further discussed and clarified in various bodies of jurisprudence.
Can a non-Muslim inherit pursuant to my will or estate or vice versa?
Scholars across all Madhabs unanimously agree that a non-Muslim cannot be entitled to a mandatory share pursuant to an Islamic will or estate plan. However, a person may designate up to 1/3rd of their estate (i.e. the “Discretionary Distribution”) to a non-Muslim. Conversely, a Muslim may not inherit pursuant to a non-Muslim’s will or estate plan.
Are there differences between the Four Madhabs with respect to drafting Wills and Estate Plans?
The four Madhabs are generally in conformity with respect to the importance of creating an estate plan and on the rules of inheritance. Our scholars are educated and well-versed with respect to all four Madhabs. Alternatively, we are happy to provide Islamic estate plans and work with a scholar you designate to review and approve your estate plan.
What is the Discretionary Distribution under Islamic inheritance law?
Islamic inheritance laws permit an individual to specifically bequest 1/3rd of their estate (after payments of all debts) to any person(s) not already entitled to receive assets as a beneficiary under the Islamic Inheritance laws.
The basis for this specific bequest lies in Sahih Muslim, Book 13:
Humaid b. ‘Abd al-Rahman al-Himyari reported from three of the sons of Sa’d all of whom reported from their father that Allah’s Apostle (may peace be upon him) visited Sa’d as he was ill in Mecca. He (Sa’d) wept. He (the Holy Prophet) said : What makes you weep ? He said : I am afraid I may die in the land from where I migrated as Sa’d b. Khaula had died. Thereupon Allah’s Apostle (may peace be upon him) said : O Allah, grant health to Sa’d. O Allah, grant health to Sad. He repeated it three times. He (Sa’d) said : Allah’s Messenger, I own a large property and I have only one daughter as my inheritor. Should I not will away the whole of my property ? He (the Holy Prophet) said : No. He said: (Should I not will away,) two-thirds of the property ? he (the Holy Prophet) said: No. He (Sa’d) (again) said : (Should I not will away) half (of my property) ? He said : No. He (Sa’d) said: Then one-third ? Thereupon he (the Holy Prophet) said: (Yes), one-third, and one-third is quite substantial. And what you spend as charity from your property is Sadaqa and flour spending on your family is also Sadaqa, and what your wife eats from your property is also Sadaqa, and that you leave your heirs well off (or he said: prosperous) is better than to leave them (poor and) begging from people. He (the Holy Prophet) pointed this with his hands.
Are there any hadith (sayings of the Prophet PBUH) explaining the importance of estate planning for Muslims?
Yes. There are several hadith explaining the importance of estate planning and noting that it is obligatory upon all Muslims who own any assets or property:
“It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it.” – Sahih Al-Bukhari
“A man may do good deeds for seventy years but if he acts unjustly when he leaves his last testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If, on the other hand, a man acts wickedly for seventy years but is just in his last will and testament, the goodness of his deed will be sealed upon him, and he will enter the Garden.” – Ahmed and Ibn Majah
Learn the Science of Inheritance because it is from your religion, it is half of knowledge, and it is the first knowledge that would be removed from my nation.” – Al-Hakim
The above answers are for informational purposes only and should not be construed as legal advice