Blog

 

And your Lord has decreed that you not worship except Him, and to parents, good treatment. Whether one or both of them reach old age [while] with you, say not to them [so much as], “uff,” and do not repel them but speak to them a noble word.

–Quran (17:23)

Belated Eid Mubarak to all.

I want everyone to enjoin the good and forbid the evil.   I want us all to aspire to be excellent to those of us fortunate to have parents with us.   But the relationship between adult children and parents can be complicated.  Discussing Estate Planning across generations is challenging.

I know many adult children want to advise on Islamic Estate Planning to their parents. It’s a common occurrence at my Islamic Estate Planning practice.  But also, it is common that many times children fail to get their parents to do anything at all about their estate planning, worse their parents make awful choices, like not plan based on Islamic rules and go with their sense of vanity instead.

Families are deeply complicated things.  A fundamental part of my job as an estate-planning attorney is working through family politics in service of doing the right thing.  What I say here may not necessarily be about YOUR family.   I do hope some of the ideas here will be useful to you.  If you have any questions, you can set up a 15-minute video conference to discuss.

Things Can Go Wrong

Some potentially unpleasant yet common situations:

• A family business where one of the children is more involved than others.

• There is one adult child that continues to live at home, apparently financially dependent on the parents while other children are away and economically independent.

• A blended family, with children from different marriages and various levels of access and influence over parents.

• Parents do not want their children to have any idea how much wealth they have or are embarrassed to share with their children how little they have. Parents may be especially ashamed if they have been victims of fraud or elder abuse.
• There is a lack of mutual trust among various members of the family. For example, a father may perceive his son to be greedy or too eager to poke his nose where it does not belong.

The driver’s seat

We often have adult children who set up estate planning meetings for their parents. The policy of my office under these circumstances is to speak with the parents and make sure they want to do their estate planning.

Adult children typically try to push their parents in the direction of estate planning will frequently find they have no power to do so. We need to know parents (who would be the clients) are driving this and not the adult children.  We have had to cancel many appointments at our office scheduled by adult children because their parents were not interested. Indeed, they were downright suspicious of their adult children.

Where adult children’s advice is most likely successful

One situation where we can reliably figure parents are going to listen to their adult children’s advice is when the adult children have already done their estate planning.  Advice like this is similar to how friends and advisors recommend something useful.

One reason why parents are more likely to listen is that the conversation about estate planning does not start with a discussion of their mortality: it begins with their adult child’s planning needs.  The adult child will ask their parents if it is ok if their children name them as guardians for minor children, or that a sibling was named, or will get advice from their parents on appointing successor trustees. There is often a concern about the grandparent’s ability to act as a guardian for minor children or if this is something they cannot take on because of age or circumstances.  Siblings, and sometimes even friends are better choices. Who takes on significant estate planning responsibilities is often a discussion worth having.

This conversation starts with children being the responsible adults, making sure that they are following the Islamic Rules of Inheritance, and that there are suitable guardians for their minor children.  This kind of plan also includes what happens if you cannot make financial decisions for yourself or if you cannot make healthcare decisions.

It stands to reason that when children start to do responsible adult things that their parents have not done yet, maybe it’s time to set an appointment.

An Act of Worship

 Say there is an adult son who never prays, never fasts in Ramadan, never pays any Zakat, then starts to berate his father for not paying Zakat.  The message is excellent (except maybe the berating part), but there would be an inherent disconnect between the message and the messenger.  The parent (or anyone) would wonder why it is someone who cannot bother to pay Zakat themselves (assuming he is required to do so) is telling a parent to pay Zakat.

Planning Islamic Inheritance is an act of worship.  Among Muslims, it is perhaps the least followed.  Since money and control of money, business, and real estate is often involved in Estate Planning, unlike prayer at the masjid or Zakat, the “why is he telling me this” question may well answer itself.

Suspicion and Excuses 

When you do your Islamic Estate Planning, you plan for what happens after death. You also outline how to determine that you have lost your capacity to make financial decisions. These are both essential things to plan for. However, depending on how adult children bring up these things, parents might feel that there is some sort of an ulterior motive. This kind of thing may depend on a whole lot of factors. Parents are not predisposed to thinking suspiciously of their children and in-laws, but they are generally not dumb either.

Of course, in some cases, parents are predisposed to suspicion of their adult children.  There is often a history here, and also some toxic family politics.

It should be their idea

We all think about our mortality from time to time.  Everyone thinks about the welfare of loved ones.  They won’t be loved ones otherwise.  We are all concerned about what may happen if they lose their capacity to make decisions.  If you have a genuinely close relationship with your parents, they will bring up the issue themselves just through the course of life. We all have people among our friends and family who passed away or have severe medical problems.   If you ever talk about the issues happening in your parent’s life and their circle of friends, this will come up over and over again.

If you never talk to your parents about these types of things, then you probably don’t have an especially close relationship with them.  As you get older, people around you get sick, become incapacitated, and die with ever-increasing frequency.   This is part of life.

Center Values in Your Advice, But Don’t Overreach

When your parents bring up the issue, it is essential always to circle a conversation towards their values. Fundamental to their values is Islam (of course, if it is not, you’re on the wrong website).

Islam mandates inheritance in a precise way, which of course, I’ve written about for years.  Often people make the mistake of assuming certain things are Islam when they are not.    Such assumptions often come up in ways we do not expect and are usually specific to the family.  For example, a son may try to convince his widowed mom that she is not entitled to any more than 1/8 of the overall estate after her husband passed away. The son claimed his mom did not have any property when her husband was alive, according to Islam. Overreach by children can be quite common.  I have written about this issue previously here.  I have also written recently about how a husband and wife own property.

Healthcare Issues   

Who makes healthcare decisions for your parents in the event they cannot make those healthcare decisions themselves?  Healthcare decision-making authority is something you should know and absolutely must discuss with your parents.  It may be that the person making these decisions is you, and it may not be you. Furthermore, you need to know about what their choices would be.  Part of estate planning includes healthcare decisions, and it would be valuable to give significant thought to this issue.  I have written about this issue before; however, I anticipate writing a long-form article soon and will link it here when it becomes available.

Advice on Medi-Cal and Medicaid

As some of our parents get older, the cost of medical care can increase dramatically.  Perhaps the most significant potential healthcare cost, indeed one with unique wealth-destroying qualities, is long-term healthcare.   Many older adults have assets, such as a home. Still, they often have less income, so they can qualify for both Medicare (healthcare older adults) and Medicaid, known by other names in various states, such as Medi-Cal in California, which is healthcare for the poor.  Regular health insurance and Medicare does not pay for long term health care.

The problem with qualifying for healthcare for the poor is that there is a requirement for “estate recovery.” What families will often find is that all the wealth they have accumulated over time will vanish, not because of taxes, probate, or even bad financial decisions.  It will disappear because of a medical condition and the lack of adequate planning.  Such tragedies are avoidable.

I have written about Medi-Cal specifically here and how it applies to older adults.  Estate recovery and long term health coverage involve state-specific rules.

Charitable Planning 

For many families, giving to charity is a family affair.  Parents often want children to be involved with their charitable giving legacy.  They want their children to help select charities, be interested in the causes and perhaps continue giving charity well into the future. If you have parents who are passionate about charitable giving, you should embrace this and help them with their legacy of giving.

There are rules on charitable giving in Islam; for example, the Wasiyyah is limited.  Charitable planning often increases family wealth when done correctly.  This fact might surprise you.  Often the result can be quite dramatic.  I have written about this previously.

Evaluating options for long term charitable planning as a family is an investment more should consider.

Probate

Estate Planning does not generally benefit the person doing the planning.  There are cases where this happens, but that is usually not why people do it. People plan their estates because they have loved-ones and things they cannot take with them.  If your parents don’t worry about such things too much, likely, you cannot do anything for them.

Probate is a judicial process when you need a dead person’s signature to transfer property to the living. Because dead people cannot sign things, you have a judge and a legal process deciding what happens.  A whole lot of what drives estate planning, not just for Muslims but for everyone, is to avoid this process.  Probate is one primary reason why people plan with living trusts.  However, a living trust (or any paper with things written on it) is by itself not useful.  What matters is how it benefits the people you love.

Incapacity Planning

Regardless of your age, if you have assets, you should have a plan in place for deciding how to manage your affairs in the event you have lost “executive decision-making ability.” The most common situation here is when people become more amenable to scams but deny to close family members that there is a problem.

I recommend creating a shura to resolve these issues.  To learn more about that, click here.

The surviving spouse and remarriage

We plan for justice and care when it comes to children’s inheritance.  We also want the surviving spouse to continue to live in dignity.  There is a whole lot to consider here.

Another thing to consider is what happens if the surviving spouse gets remarried.  I know men who got remarried after their spouse passed away and have had children in their 70s and 80s with women significantly younger than their daughters. Some older adults laugh at the possibility their spouse would get remarried if they die.   You know your spouse now, but you don’t know your spouse after you are gone.  Assuming knowledge of the future is silly, though, this is a common malady among human beings.   Fortune-telling, as an estate planning strategy is a recipe for injustice.  I have written about the remarriage issue extensively.

Family Business Succession

People often like the idea of passing a business on to family members.  Some children are not interested in the family business.  Often business succession is not an inheritance issue, especially if they plan it out over many years.  Some parents have more trust in some children and not so much in others.  That may lead to perceived inequities in the transfer of wealth and long term family conflicts.  Transferring a family business can often be a fraught subject.

While Islamic Inheritance rules are great when it comes to the distribution of inheritance, these rules by themselves don’t address all potential conflicts.  The family needs to have a strategy, not just to reduce taxation and transfer wealth, but to do so in a way that maintains harmonious relationships within the family.

Disinheritance

When a parent feels the need to disinherit a child, it’s an emotional moment.  In nearly every instance, Islam prohibits this.  The only situation where this will legitimately happen is when the adult child is not Muslim.  Parents may want to disinherit their children for the wrong reasons or because the Sharia mandates it.

There is a risk the parent will do an injustice to someone or another.  If the parent gives an inheritance to someone not entitled to it in the Sharia, that is an injustice to other children.  Denying someone inheritance rights ordained by Allah is also an injustice.

Often in these situations, the parents are not in touch with the adult children they are considering disinheriting.  What they know about the child may have been from an unpleasant conversation from many years ago, from social media posts or second or third-hand information.

The role of the children who have a relationship with their parents is vital here.  It is easy for parents to be sad and troubled. 

Girl’s Inheritance 

Many parents feel as though their children will think Islamic inheritance rules are unfair to daughters and, thus, will be unhappy.  Often, they don’t know this, but could easily project such views on others, especially their daughters, who likely don’t have any problem with the command of Allah.

When it comes to advise on Islamic Inheritance, this is often the elephant in the room. It’s best to introduce it and come up with a solution that would be in keeping with Islam and address any concerns members of the family have about this split.  I have written about this issue several times, but as far as solutions go, you should check out this article.

Do the Right Thing

 You should not shy away from encouraging your parents to do the right thing.  Often, its easier to avoid tension and drama and just ignore things that cause it.  If you spend time with your parents and talk to them, these issues will come up.  Your parents will bring them up.  You should approach them with the wisdom and knowledge you can muster.

To schedule a 15-minute no-obligation video conference, click on this link.

To schedule a 90-minute Islamic Estate Planning appointment, click here.

We have a series of frequently asked questions on the Islamic Estate Planning Process as well.  Please feel free to share this article to anyone you feel may benefit.

 

 

 

 

 

 

 

 

 

 

This Ramadan, like every we do every year, we must think about the less fortunate. It is important to understand that “charity” and “nonprofit organization” are not the same thing.  Charity and Zakat are not the same things either.  Two-thirds of all so-called “charity” in the United States does not benefit the poor.

Zakat is often our laziest act of worship.  We have several automated “bots” giving charity for us to catch the night of Laylatul Qadr.  It’s almost like we are encouraged to not think about it.  Fasting, prayer, Hajj, and for the relatively few of us who do it, Islamic Estate Planning, we have to think about those things a lot!

Many Muslim leaders work for or run nonprofits.   Zakat has become more permissive over time to allow for funding of their ever-expanding missions.  It is less about the poor and more about the affluent giving money to each other.

One of my most popular articles this Ramadan is from last year, “This article could be Zakat Eligible.”  It attempts to address the problem with some humor, though it is a serious issue I hope we all think about as we use our money for acts of worship to benefit the poor.

I have another article on Islamic Charitable Planning you should also consider as you create a charitable giving plan for your family.

To schedule a 15-minute, no-obligation Zoom consultation on Islamic Estate Planning, click here.

 

Muslim organizations in the United States are often wonderful and worth supporting. I am sure many of you are doing in this blessed month of Ramadan.  However lots of people donate to groups not worrying about accountability.  Those that run Muslim organizations prefer to police themselves with yes-men and women surrounding them.  They prefer to spend funds and do whatever they want to do with no accountability.

You should consider separating what you think of nonprofit leaders as people, and as fiduciaries for funds that are supposed to be used for charitable purposes.  If a Muslim leader prefers to be on his own board of directors and take a salary as an executive, you have a red flag.  I have written about this issue previously in Muslim Matters, and a version of this article is now in the latest print edition of Islamic Horizons.  You can access the article here if you are not a subscriber.

A very nice person who gives good speeches can be corrupt. Your donations can do a lot of good.  They can also enable corruption.  It is your responsibility to know what you are doing.

Link Last Week

I wrote about Islamic Estate Planning last week (as I often do) and sent a link to calendar a no-cost and no-obligation 15-minute web conference.  Unfortunately, I sent the wrong link.  Here is the correct link.

To set up a full 90-minute Estate Planning meeting, click here.  We can help clients throughout the country since we do collaborate with lawyers in many jurisdictions.

 

 

Ramadan Mubarak to everyone reading. I pray you and your families, with all with your unique struggles and opportunities, find this to be the best Ramadan ever.

I was asked by a reader from within the Muslim community to write about what spouses get in Islamic Inheritance.

The United States crosses a continent with a surprisingly diverse set of legal systems and traditions. California, where I live, is a former Mexican territory.  The system of property law as between husband and wife is known as “community property” and is part of the heritage of the legal system of Mexico. That is not the case in other parts of the United States.

Within the United States, there are several legal systems, cultures, and traditions when it comes to married couples and their assets.  One thing that is constant throughout the United States is that married couples can make their agreements and decide for themselves how they own their property.   Some states have rules, like forced shares that don’t exist in California and Texas.  Some states define things like “marriage” differently from each other as well.  Whatever the rules are, though, you can always make your own that can supersede the default rules in your state.

My purpose in Estate Planning is not to plan for divorce (usually). Instead, it is to prepare for death and incapacity.  Fundamental to Islamic Inheritance is that there are ordained shares that need to go to specific people.  But those shares have to be of a corpus of property that belonged to a dead person. One of the major disputes that could arise in inheritance disputes and much of the injustice that can happen in these cases is not inheritance at all, but rather what the corpus of a dead person’s property is in the first place.

Take an example:

Ilyas is a small business owner.  He worked 12-15 hour days. He sacrificed a whole lot of time away from his family for years, building a successful enterprise with several employees.  His wife, Rabia, has been a homemaker during this time.  She does not have any income of her own.

Ilyas feels all the property accumulated is his own.  He does not believe his wife owns any of it. Rabia agrees with this.

Is this right or wrong?

Consider this:  Ilyas was 48 when he married Rabia. He has four children from a prior marriage, and two with Rabia, who is 15 years younger. Ilyas paid a substantial Mahar to Rabia when he married her.  Rabia also had her assets and wealth from her family.

Maybe now, it looks about right.  Ilyas is concerned about passing on his wealth to his lineage.  Giving too much to his wife might be unfair to some of his children from his perspective.

Ilyas was previously divorced.  He is concerned, giving his wife half during their lifetime is dangerous to him.

What if Ilyas and Rabia agreed to split the assets in half between them so that when Ilyas dies, Rabia gets half off the top as the surviving spouse?  Does that now become bad?

Property Owned During Marriage in Islam

 Islam does not regulate how a husband and wife own property.  Marriage is a creature of contract.  So if a husband and wife agree that they split everything equally, or they decide certain things belong to one person and other things another, they can do that.

The important thing for me as an Estate Planning attorney is not to advise clients how they should own property between them.  It is, however, vital that they understand the consequences of their decisions when it comes to the Islamic Rules of Inheritance.  It is also important to understand what the surviving spouse gets and what he or she may be able to live on.  If the surviving spouse is relegated to poverty because her share is so small, you cannot blame the Islamic Rules of Inheritance, since that is only part of the picture.

Whatever goes to your spouse after death does not go to your children.  Don’t even assume it eventually goes to your children.

Blended families and future possible blended families

As I have written about before, spouses often get remarried after their spouse passes away.  For a new spouse, getting economic security, including wealth from a spouse, maybe the point of getting married in the first place. I have previously described  this as the “Cinderella problem.”  If you own property jointly with a spouse, then die, your spouse owns the whole property.  That is haram enough, but subsequently, your spouse remarries and puts the new spouses’ name on the property as a joint owner, which is customary and frequently expected.  The orphan’s wealth goes to a new step-parent.   Muslim families should actively guard against this issue.  If you are a wife or a husband, you cannot expect other people to care about things you did not bother to address.  You need to deal with it.

However, when it comes to property owned today (not inheritance), there is a related problem, transferring half to a later spouse. Giving things to your spouse during your life is not prohibited in Islam.   It could cause some fitna in the family, though. You would effectively be favoring children from the later marriage than children from an earlier marriage.  How this works, though, may be different from family to family.

Just be cautious as you do not want to cause injustice.

Spouse gets what the spouse has, plus inheritance

 Spouses often have their property together.  However, when we plan based on Islamic inheritance, we make sure each spouse is his or her economic unit.  They have separate lifespans and often separate sets of heirs.  They start with different parents, who are heirs in Islam only of their children. One spouse can live decades longer than another spouse and have more children.

Say Ilyas has property, represented by an Avocado.  His wife Rabia has wealth, represented by an apple.  If Ilyas dies, Rabia has an apple.  Rabia had that apple when Ilyas was alive.  She keeps that apple after Ilyas dies.  His death does not give anyone the right to take any part of that apple away from her.  Also, Rabia gets 1/8^thof Ilyas’s avocado if children survived Ilyas.  If children did not survive Ilyas, Rabia gets a quarter of the avocado.  That is basic to Islamic Inheritance.

It is that simple, but you have to do it

Other aspects of this make it more complicated.  For example, I wrote about how we deal with the family home here.  However, none of this changes how much inheritance is due to the surviving spouse.

The thing is, though, if you don’t plan at all; usually, the surviving spouse gets everything.  That is simple, too, as an injustice.

To schedule a 15-minute no-obligation web-cam conference on Islamic Inheritance, click here.

To schedule an Islamic Estate Planning meeting (budget 90-minutes) and complete your Islamic Estate Plan, click here.