“It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it.” (Sahib al-Bukhari)
Why make an Islamic Will?
To fulfil an important religious duty
If you die without leaving a will you are deemed to have died ‘intestate’ and so your wealth will be distributed in accordance with the English rules on intestacy – which do not apply the same criteria as those laid down by the Shari’a.
It gives you peace of mind
Ensuring that your wishes are followed while avoiding unnecessary family disputes after you have passed away. If you have children under the age of 18, and you and your spouse should die, then the courts may take the decision as to who looks after them. By appointing legal guardians in your will you can ensure that this doesn’t happen.
It makes financial and Islamic sense
It’s a quick and simple process to make a will and it’s relatively inexpensive too! Making a tax efficient will can save on the amount of Inheritance Tax your family may have to pay after you die. In the event of dying intestate, your family will have to apply to the courts to administer your estate – a far more lengthy and costly process than if you had written a will. It gives you the opportunity to help those less fortunate by leaving a gift in your will to a charitable cause – it helps not only the beneficiaries, but can help you too because it is considered sadaqa jariya (on-going charity) which is an action that continues to be rewarded after death.
How to make an Islamic Will
1. Value your assets
Before making a Will it is a good idea to make a list of everything that you own. This is known as your ‘estate’ and includes your home and its contents, your car and your savings – less your debts, such as unpaid dowry (mahr) and Zakah. If the value of your assets is already or likely to be more than £325,000, you will need to consider Inheritance Tax savings strategies. Where potentially large estates are involved and therefore inheritance tax liability could be considerable, steps should be taken to make savings here. There are various ways of doing this, including making interval gifts and making a bequest of up to a third of the estate to a charity (gifts to charities registered in the UK do not attract inheritance tax).
2. Do you need a solicitor?
It is possible to make your own will, but because it is a legal document, you are strongly recommended to seek professional advice, especially if you wish to make several specific bequests or if your financial and property affairs are complicated. Remember: for your Will to be valid, the following basic requirements of UK domestic law must be satisfied:
• You must be at least 18 years old,
• You must be of sound mind,
• Your will must be in writing,
• You must identify yourself as the author of the will,
• You should state that it is your last will – and that any previous wills and codicils are revoked,
• The Will must be dated and signed by you in the presence of and attested by two witnesses who are neither a spouse nor a beneficiary under the will.
3. Decide on your funeral and burial arrangements
You should specify in your will that you would like your funeral and burial rites to be carried out in accordance with the practices of Islam. These include:
• not having your dead body subjected to a routine post-morten examination because the Prophet Muhammad, may Allah bless him and grant him peace, said: “Breaking a dead man’s bone is like breaking it when he is alive.” (Susan of Imam Abu Dawud) having your body released for burial immediately after death and having a Muslim burial;
• advising where and how your body is to be buried,
• if you do not wish for any of your organs to be used for medical research or organ replacement operations, then say so.
4. Decide what to leave to whom
After the payment of any taxes, debts, and funeral and administration expenses, up to a maximum of one third of your estate can be left to whomever you wish – this may include friends and family not entitled to inherit under Shari’a, as well as charities. If, when it comes to the division of the estate, it transpires that the bequests are more than a third, then either the executors have to reduce the bequests proportionately, or those entitled to fixed shares may (but do not have to) agree to accept a diminution in their shares.
After the correct amount have been deducted, the remainder two thirds of your wealth is distributed in accordance to the Shari’a rules of inheritance. These are fixed and you have no say in it whatsoever. Your executers must have knowledge of how this should be distributed. Crisis Aid has the right scholars who are experts in this and can help you to set up your will accordingly.
It is prudent to have what is called a residuary clause dealing with what should happen to the estate if there are no surviving relatives – in which case the estate can be left to one or more charities (and if more than one, then in what proportions).
Under Shari‘a, your estate would go to the bayt al-mal to be spent on social welfare, but until your community has a bayt al-mal, a charity concerned with social welfare, like Crisis Aid, is the next best option. You may also wish to have a clause in which you pass on a last message to your loved ones.
5. Choose your executor(s) wisely
You will need to choose up to four people to carry out the wishes expressed in your will. Executors can also be beneficiaries in your will. If you are choosing friends or relatives, make sure they are willing to accept what can be a lengthy and time consuming responsibility. If you are choosing lawyers, remember that they will probably expect to be paid for their services from your estate. Crisis Aid recommends you have knowledgeable scholars of Islam to execute you will as part of your team.
6. Who would inherit what?
There is software at http://www.islamicsoftware.org/irth.html that does the calculation for you. This software is also useful if you would like to know, “Who would inherit what, if I were to die tomorrow?”
7. Choose a guardian for children
If it is possible that you may have children under the age of 18 when you die, you should appoint a guardian to look after them in the unlikely event of both you and your spouse dying while they are still minors. This point is particularly significant for those who have non-Muslim relatives and want their children to be brought up as Muslims. There should also be a clause dealing with how any minors’ share of any estate should be held on trust and invested and expended for the children’s maintenance, education or benefit. Most Muslims will want to stipulate that any investment made should not involve usury, since this was expressly forbidden by Prophets, including Moses, Jesus and Muhammad, blessings and peace be on them all.
8. Choose your witnesses
Ideally, choose two trustworthy Muslim men to witness the signing of your will. If this is not possible, then two non-Muslim men may be taken as witnesses. Women may also act as witnesses. Under Shari‘a, two women may act as witnesses instead of one man. For the purposes of English law one woman may act as a witness instead of one man. Remember: anyone who will benefit from your will cannot be taken as a witness. If this does happen, he or she will not be permitted to inherit from you.
9. Keep your will safe
Once you have made your will and it has been signed and witnessed, store it in a safe place or with your solicitor or a trustworthy relative or friend. Make sure that your executor(s) are informed where the original will is being kept and keep a photocopy for your own records.
10. Keep your will up-to-date
Review your will on a regular basis, since changing circumstances – especially your marital situation (marriage, divorce or re-marriage) may affect its validity. If there are significant changes of circumstance, it may become necessary to make a new will, but for minor changes you may just require a codicil – which makes an addition or alteration to your existing will.
So if you’ve already made a will, but would like, for example, to include a bequest to charity, the process is fairly straightforward and can be drawn up by a solicitor. Remember: Do not try to alter your will by crossing out or adding words. If you do this, your will may be rendered invalid in the eyes of the law, so if you then die without having made a new will, it will be as if you had never made a will at all.