Islamic Estate Planning Attorney

Islamic Inheritance

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Counseling Sharia at the Wealthcounsel Quarterly

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Please check out my article on “Counseling Sharia” published this month at the Wealthcounsel Quarterly in print.  This is an organization I joined a decade ago and it has been tremendously helpful to me in learning the legal-technical as well as practice development aspects of what I do, both with regard to Islamic Inheritance as well as Estate Planning in general.

My practice has been about helping people live and organize their affairs based on their values. This allows for the sacred to be included in Estate Planning.  Many Attorneys are unfamiliar with the notion of an Islamic Estate Planning Attorney or Islamic Inheritance.  Familiarizing the Estate Planning bar is an important service since so many Muslims do not have the opportunity to go to a Muslim Attorney, or even if it is a Muslim community, the attorney may not be familiar with Islamic rules.

In general, we want to point to the following:

  1. They should have a level of respect and understanding for Islam, and for their client that practices Islam.  Unfortunately, many non-Muslim lawyers, like teachers and politicians and others in society, have internalized Islamophobia.  Education about Islamic Inheritance will help.
  2. Islamic Inheritance is not optional for Muslims.  Of course, non-Muslim lawyers are not bound by the Sharia to help a Muslim client who wants to “fudge” on the rules.  Muslim lawyers cannot help anyone do something prohibited in the Sharia.
  3. Estate Planning Attorneys are used to doing things a certain way.  They need to understand that they need to change their own conception of what they are doing and change their planning substantially.  Some lawyers are just not equipped for doing that.   This may include some Muslim lawyers, who may be uncomfortable with the rules and advising clients on them.   Eventually, this will change in the United States.

Check out the article and let me know what you think.

 

The “Final Sickness” in Islam

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The concept of a “Final Sickness” is part of the Islamic Rules of Inheritance and unlike what you might find anywhere in American law.

Let me take you back a little bit to describe what I am talking about, to a time in Europe when the Church was increasing its power and wealth in Europe. A man with an estate and children is dying. Clergy visits him. They tell him that if he were to grant all is property to the church, he will be granted absolution. The man agrees to this. When you are about to die, absolution is a very good deal. If that means impoverishing your family, so be it.

You see, at the deathbed, there is a long history of people doing wacky things. They seem to be more easily manipulated and subject to elder abuse. Things outsiders suggest to them start to “make sense” when they would not have beforehand.

The Islamic Rules of Inheritance recognizes this tendency among human beings. So in a “final sickness”, the rules that govern the alienation of property change.   Normally, you can part with your money in the manner you see fit. There are a number of Companions of Muhammad (SAW) who gave away all of their assets during their lifetime. This is normally not a problem. Giving all your wealth to a religious institution, a hospital or to whomever you want is typically fine.

Yes, if you are healthy, you are unlikely to give away all your money, especially if the wealth is substantial. In general, people are more afraid of running out of money before death then they are death itself. But some people give these large gifts and it is not a concern is Islam, most of the time. Deathbed gifts are regulated. Of course, a Muslim can never really change an Estate Plan based on the Islamic Rules of Inheritance.   A new rule that comes up is they cannot give things greater than what they may give in a wasiyyah, which is 1/3 of the Estate.

The rights of the family as specified in the Quran (4:11-14) take precedence over anything else, including a desire to give to charity. Remember: Inheritance in Islam is not about you or what you want. It is not even about you family. It is about a peaceful and cohesive society with a consistent set of rights. Allah ordained these rights.   Muslims don’t second-guess them.

What is a final sickness though? An illness that would reasonably lead to death within one year is a typical answer. So having an illness doctors say is ultimately fatal with a longer life expectancy than one year does not result in the final sickness restrictions in Islam.  This has important implications. For example, Alzheimer’s in its early stages is not typically a “final sickness.” People with this particular illness may live several more years and have the ability to competently do their estate planning and gifts for several of those years.

Muslims who are in a “final sickness” can and should do their estate planning and make sure their assets are distributed consistent with Islam. It is just as mandatory for them to do this as it is for anyone else. Indeed it is more imperative for family members to push them to do this. This is when they are subject to some great pressures and they can more easily be subjected to manipulation by the unscrupulous. Even if this were not the case, Islamic Inheritance would be vital in order to maintain peace and harmony in your family, and because it is fard.  Just like it is for everybody else.

 

Unexpected ways Islamic Inheritance avoids conflict

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I continue to be amazed with the utility and brilliance of the Islamic Rules of inheritance. Yes, it is an old system. Yet, it has long been recognized as the best-developed system of inheritance in the world. I am an Attorney that represents clients in Estate Litigation matters. That is to say inheritance disputes. I also do estate planning based on the Islamic Rules of Inheritance. So I sometimes think of disputes with a view towards looking at if Islamic Inheritance, if it was relevant in the case would have helped avoid the conflict. It would usually avoid a conflict completely. It may not help when there is some sort of abuse or oppression involved that has nothing to do with the actual shares of distribution.

Islamic Inheritance can fix unforeseen problems.   Many people do “I love you” estate plans. That is to say the surviving spouse gets everything. In general, these types of plans are not allowed in Islam. The husband gets between either ½ or ¼ while the wife gets either ¼ or 1/8. There are reasons why these numbers might be different, but we don’t really need to get into that right now.

Here is a problem I did not think of before. A man dies from a car accident. He wants to give everything to his wife. Years later, his wife dies. After she dies, the man’s wrongful death lawsuit results in a $300,000 payment. The estate goes to the man’s siblings. This makes sense, because the wife is dead.

Here is the conflict: The wife had children of her own. They are completely unrelated to the deceased man. They want the money instead. They argue that if the wife were alive, the wrongful death settlement would have gone to her. And if she died without spending any of it, it would have gone to them. Since the inheritance did not come into fruition until after both the husband and wife died, the siblings figured they should get the inheritance.

Amazingly now, the law in Michigan (where this case is happening) is not clear on what is supposed to happen here. Should completely unrelated people get absolutely everything?   Should it be the people who are related?

Why should this be so hard? There are no rights and no real underlying principles of what is justice and what is not. When you don’t have these things, administering justice can be a real pain.

Everyone needs to make this decision for him or herself, regardless of faith tradition. Is there an underlying system of ethics that governs what you are supposed to do? If so, the answer is pretty easy.

Check out our report on 6 mistakes Muslims make in their living trust.

 

 

 

Why is Bin Laden’s last will and testament so ridiculous?

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The Director of National Intelligence released Bin Laden’s last will and testament from the raid on his hideout in Pakistan.   You may want to see it for yourself here. For a variety of reasons, this last will and testament makes no sense. The headline, that there was millions in there for “Jihad”- is clear enough. How he had millions of dollars or had the ability to posthumously move them around, nobody has explained.

Unless the government released his last will and testament (or other copies were out there), those with access to his funds would have no way of knowing how they were to be distributed. Since the funds were supposed to be distributed for criminal activity, it seems inadvisable that the government releases this document. However I am a California Estate Planning Attorney and not in the “intelligence community” in Northern Virginia, so maybe I am missing something there.

In Islam, bin Laden’s professed faith tradition, the last will and testament completely ignores the fact that the Quran exists as the word of Allah and that shares of inheritance are ordained.  This is actually a fundamental fact: Muslims don’t get to decide what children to benefit and what children to ignore after they die. Of course, he would not have been the first professed Muslim to make this mistake. He had family, spouses and children, according this Wikipedia article about the subject.

It is widely accepted in Islam that the wasiyyah, the portion of the estate that is mostly discretionary, cannot be more than 1/3 of an estate. The rest is distributed based on the fara’id, the mandatory shares of inheritance, which comes from the Quran in Surah Nisa (the fourth chapter). Inheritance is ordained in the Quran, and not doing it in a manner that conforms to the Islamic Rules of Inheritance has the specific punishment of hellfire. That specific verse is 4:14, keep in mind as you read it 4:11-14 are all about inheritance.

In general though, countries with laws based on the Islamic Rules of Inheritance would only care about what your wishes were when it came to 1/3 of your estate. In the United States, you can generally have a completely unjust estate plan and courts will often respect it.

There are no known cases of any country where bin Laden purportedly had wealth where the courts distributed it to family members. His personal wealth, whatever governments knew about, was seized years ago, for example there was this report of $2000.00 that he had in a Peshawar bank account.

The last will and testament seems to say is that it is a wish that his brothers and sisters respect that the funds be spent for his causes. So the plan may just be that brothers and sisters respect his wishes by voluntarily writing checks themselves from funds they may have on his behalf. But again, we have a problem. His brothers and sisters and maternal aunt are not his heirs in Islam. They should not have access to his funds to the exclusion of the rightful heirs. Given that he has several children and wives, these other relatives get nothing at all. They should not have the right to spend other people’s money just because a dead person told them to.

Of course, before assets can be distributed to anyone at all, debts must be settled. Seeing as he unjustly killed many people, the families may have claims.

This is not really a valid will, at least not in the Islamic tradition. There is no executor (someone named to carry out these instructions) and no witnesses and the shares violate the Sharia. It would be appropriate for an Islamic Court anywhere in the world or throughout time to throw it out. At this point though, the document is nothing more than a prop in the endless and tragic war on terror.

If you are a Muslim and want to learn more about doing Islamic Inheritance right and not make horrible mistakes (like bin Laden), check out my free guide on 6 mistakes Muslims make in their Living Trust.

Witchcraft and other Inheritance disputes

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It is unfortunately common for family members to have inheritance disputes.  For Muslims, the term “terrorist” comes up as a way to actually deny people inheritance.  Terrorism actually came up twice in two different cases when I was in court a few days ago, in front of the same Judge (only one of those cases was mine).  This was in probate court.  None of this had anything to do with actual terrorism.

In Illinois, police said a family dispute over inheritance led to a double murder and suicide.  A trust worth Millions led a man to kill his own 4 year old son, his niece, then himself.

In India, the New York Times reports on a woman who has been crusading against false accusations of witchcraft, which leads to the death of thousands of women a year.  The accusation may sound quaint, but it is often over an issue that is familiar throughout the world and throughout time: Inheritance rights.

So how do we break this cycle, and not allow family members to treat each other viciously, just because a parent died?

Obviously, the answer for Muslims lies in the Islamic rules of Inheritance.  The Quran is a mercy to mankind.  That is not a slogan.  It is statement grounded in cold, hard facts.  When inheritance rights are ordained by Allah, your brother is not your enemy.  Your father, your mother, your uncles and aunts- none of these people are your enemies.  A system that incentivizes their becoming your enemies is gone, only if you let it be gone.   Nobody can profit from calling you a witch, a terrorist, or even a fasiq.  You get what you get, because the Quran says you get it.

Yes of course, Muslims do commit injustices against family members in inheritance cases.  That is generally the fault of the deceased.  It is their parting shot against the people they claimed to care about when they were alive.  It is the fault of relatives who do what relatives do when the system they have is more “lord of the flies” than it is “mercy to mankind.”

The thing about Islam is that it is only valuable to you if you practice it. Otherwise, it is just an empty slogan.

Get my report, 6 mistakes Muslims make in their living trust.