Division of inheritance if deceased left will
Fatwa No: 360718

Question

Assalaamu alaykum. Please calculate the inheritance according to the following information:
- Does the deceased have male relatives who are entitled to inherit: (a son) Number 1, (a full brother) Number 1, (a full paternal uncle) Number 1, (a cousin from a full paternal uncle) Number 1, (a cousin from a half paternal uncle) Number 1.
- Does the deceased have female relatives who are entitled to inherit: (a daughter) Number 1, (a wife) Number 1, (a full sister) Number 3.
- The will which the deceased left behind and that is related to his inheritance is: That one third be left to charity, plus the burial, etc.
- Additional information: The question which I have is the following: once the husband dies and his wife and their one son and one daughter survive, when does the distribution occur? The son is 20, and the daughter is 22. Can the mother (wife) stay in the residence until she dies, and can the kids then sell and divide the proceeds from the house after that? Or should the house be sold and divided right after the husband's death? She is not employed and is not at age to receive social security, nor can she afford to buy her own house.

Answer

All perfect praise be to Allah, the Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger. 

As long as the deceased had left a will that one third of his inheritance be given in charity, then this will must be executed before giving the heirs their shares in the inheritance as long as the will is to a non-heir and does not exceed a third of the estate.

The Fiqh Encyclopedia reads:

"The scholars agreed that the execution of the will of the deceased comes after paying his debt and before the heirs take their share in the inheritance, as Allah says (what means): {…after any bequest he [may have] made or debt.} [Quran 4:11] The will that he had made is not taken from the original money, because the expenses of burying him and paying his debts must be deducted from that original money first, and the rest [whatever remains after this] is his money from which one third can be given in charity. It is also possible that if one third is deducted from the original money, the remainder would all be exhausted in covering burial and debt, thus depriving the heirs of their shares because of the will."

After executing the will, the rest shall be divided among the heirs according to the Shariah.

If the heirs are only those mentioned in the question, then his wife gets one eighth as her fixed share due to the existence of the direct heirs (children); Allah says (what means): {But if you leave a child, then for them [i.e. the wives] is an eighth of what you leave, after any bequest you [may have] made or debt.} [Quran 4:12]

The remainder is divided amongst the son and the daughter by Ta’seeb (by virtue of having a paternal relation with the deceased and not having an allotted share, so they get what is left after the allotted shares have been distributed); the son gets twice the share of the daughter, as Allah says (what means): {Allah instructs you concerning your children [i.e. their portions of inheritance]: for the male, what is equal to the share of two females.} [Quran 4:11]

The brothers and sisters of the deceased as well as the uncles and their children do not get anything from the inheritance because they are prevented by the existence of the son of the deceased.

Ibn Al-Munthir  may  Allaah  have  mercy  upon  him said, "The scholars agreed in a consensus that the full siblings and the half siblings from the father’s side do not inherit if there is a son or a grandson down to all levels or a father."

Hence, the inheritance should be divided into 24 shares, the wife gets one eighth, which is 3 shares; his son gets 14 shares; and his daughter gets 7 shares.

The heirs deserve the inheritance and it enters their possession from the time of death of the person they are inheriting from, but they are not obliged to divide it immediately. Rather, if they leave it without division until when Allah wills, then they are entitled to do that.

The wife of the deceased is entitled to remain in the house without the house being divided or sold if the rest of the heirs agree to this. If one of them insists on selling the house and dividing its price, the heirs are obliged to sell it and divide its price according to the Shariah.

Shaykh Ibn Taymiyyah  may  Allaah  have  mercy  upon  him said, "As for what is impossible to divide, if one of the partners asks for it to be sold and the price to be divided, then it must be sold and its price must be divided. This is the view stated from (Imaam) Ahmad from the narration of Al-Maymooni, and most of the scholars of the Hanbali School mentioned it..."

Al-Rawdh Al-Murbi’ reads, "...whoever is asked by a co-owner to sell the property, he is forced to sell it. If he refuses to sell, then the ruler sells it for them and divides the price between them according to their legitimate share… The harm that prevents forceful division is when division decreases the value of the property."

If the house is sold, the wife's accommodation is the responsibility of the person who is obliged to spend on her if she is poor and does not own an accommodation.

Allah knows best.

Related Fatwa