American Muslims should understand what a Wasiyyah is and what it is not. The purpose of this article is to provide a concise yet comprehensive guide to the concept and how it is important to Muslim families.
Wasiyyah, the word, appears in the Quran, at 4:11, which deals with Islamic Inheritance and shares of inheritance. After death, inheritance may only be distributed after debts and wasiyyah. The wasiyyah is a bequest you give at your direction. This is different from the Fara’id, or Islamic Inheritance, which is the system of mandatory rules of inheritance. For Islamic Inheritance, you do not get to decide how or in what proportions inheritance is distributed (assuming you are believing Muslim). For Wasiyyah, you get to decide who gets what, with some important caveats.
The One-Third Rule
There is a hadith concerning this, a story by Sa’ad ibn Abi Waqqas, reported in multiple sources:
“I was stricken by an ailment that led me to the verge of death. The Prophet came to pay me a visit. I said, ‘O Allah’s Apostle! I have much property and no heir except my single daughter. Shall I give two-thirds of my property in charity?’ He said, ‘No.’ I said, ‘Half of it?’ He said, ‘No.’ I said, ‘One-third of it?’ He said, ‘You may do so, though one-third is also too much, for it is better for you to leave your offspring wealthy than to leave them poor, asking others for help …’“
Schools of thought on the 1/3 rule
All schools of thought in Islam take the view that there is a limit of ⅓ that can be allotted to the wasiyyah. The rest must go to heirs. This is a maximum and not a minimum. Indeed, Muslims are under no obligation to have a wasiyyah at all. If you want to leave everything to your family, you can certainly do so, but it must be proportional to the allocated shares in the Islamic rules of Inheritance.
Cannot Name Heirs
This is one of the big rules that answers a major question: If I have a ⅓ discretionary amount, why can’t I just give my daughter (or son, or wife) more? Because that violates the sharia. This is the opinion in the four Sunni schools of thought. There is a well-known hadith “there is no wasiyyah for an heir”- with the term “wasiyyah” best being understood as a bequest. Note however that in the Shia tradition this can be done, though the ⅓ rule remains.
Example: Abbas has a daughter and a son. He knows that his son gets twice the inheritance as his daughter. He would like to change this by using his ⅓ wasiyyah to give more to his daughter. In the Sharia this is an impermissible use of the wasiyyah and he cannot do this.
How is it different from the last will?
There is a common usage of the term wasiyyah or al-wasiyyah to refer to a last will and testament. They are not the same thing at all, at least when we compare what a wasiyyah is in the Islamic tradition and what the last will is in the United States. In general, in the United States, the last will is something that covers probate property. A probate is when you need a dead person’s signature to transfer property from one person to another. This can easily exclude a whole lot of things, like bank accounts with a pay on death (POD) designation, “beneficiary designated” insurance contracts and retirement plans, deeds with a right to survivorship and living trusts.
A wasiyyah as mentioned above covers a discretionary distribution of up to ⅓ of an estate. So the concepts are quite different.
Use of a Wasiyyah in Charity
One of the most common uses of wasiyyah is for charity. Many people connect their legacy to charitable institutions they are a part of, or institutions that have been part of their own family and community, for example, Masajid and Islamic Schools. Others are concerned with the betterment of communities they have not been a part of. This may include care for orphans in other countries or water projects in places where there is insufficient clean water.
Wasiyyah is not the only way to give to a charity of course. Even as part of your estate planning. Charitable tax planning can be done outside the wasiyyah and the constraints of the 1/3 rule. However, charitable giving is still the easiest way to give the largest single gift you are likely ever to give to charity.
Uses for family members
There are several ways family members can benefit from the wasiyyah. For one thing, not everyone who is in your family, even close family members, are “heirs” in Islam. This is often the case with family members who are adopted, or non-Muslim. Such family members do not inherit by right but are eligible for a wasyyah.
Example: Adnan married Sally, who is Jewish. They have 3 children together who are raised Muslim. Adnan wants Sally to inherit from him. She does not inherit by right, however. The verse in the Quran that gives the wife ⅛ does not apply to her. He may do a wasiyyah that gives her up to ⅓ of his estate.
Wasiyyah is a major part of the Islamic Estate Planning process for many people. It is a tool for your planning and not mandatory for everyone. What is vital though is doing an Islamic Inheritance plan. For our free resource guide on Islamic Estate Planning, click on the button below.