How will my father’s estate be distributed without having to sell the house we live in?

Answered according to Hanafi Fiqh by Askimam.org

I am writing to ask regarding my late father’s estate in India. He passed away in September 2007 and left behind 4 sons (including myself), 3 daughters, a wife and 2 sisters [both sisters have now passed after his demise]. In the time between his demise and this present time, questions have been raised with regards to his estate by the above heirs, the majority of whom would like their portion of inheritance and advice on how to proceed. However, I would like to keep the house in our family and do not intend to sell it to distribute the shares amongst the other heirs. This is because my father had, in his life, expressed his wishes for the property to remain within the family. My father had also clarified that his sisters had agreed total ownership for my father from their father’s estate. Hence waivered their inheritance but this is not in writing. I would like to know: 1) The shares for each heir 2) More importantly, how to proceed, given that I, for one , would like to hold on to the house, whereas others would like to receive their share in cash I appreciate your attention into the matter. May Allah guide us all, Ameen, Wasalaam,

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Answer

In the Name of Allah, the Most Gracious, the Most Merciful.

 

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

Brother in Islam,

We take note of the contents in your email.

May Allah Tāala forgive your father and elevate his status in Jannah.

In principle, under Islamic law, the deceased’s estate must first be used to pay funeral expenses, debts (including legal costs) and bequests made to non-heirs, which will not exceed one-third (1/3) of the estate after debts and funeral expenses have been settled. Thereafter, all assets form part of the Nett Estate and will have to be distributed as per shariah guidelines.

If your father was survived by his wife, 4 sons, 3 daughters and two sisters, his estate will be divided into 88 shares and distributed amongst the heirs in the following way [i] [ii]












     Beneficiaries

    Share Portfolio

Wife

            11

Son (1)

            14   

Son (2)

            14

Son (3)

            14

Son (4)

            14

Daughter (1)

            7

Daughter (2)

            7

Daughter (3)

           7

Sisters

        Mahroom

Total

        88

 

You further state that your father had earlier informed you of his sisters agreeing on complete ownership of the house for your father from their father’s estate. What is the background of the ownership of the house? Was it through inheritance from your grandfather or through some other source? Is there a dispute regarding the sister’s share in the house?

Nevertheless, if the house is completely owned by your father’s heirs, including yourself, then they may mutually agree to sell their share to you at a mutually agreed price or in exchange of any other land etc.[iii] [iv] [v]It is advisable to identify a mutually agreed person to value the house in order to avoid disputes and misgivings in the family.

And Allah Ta’āla Knows Best

Naved A. Sohtun ibn Shabbir.

Student – Darul Iftaa

Shillong, India.  

Checked and Approved by,

Mufti Ebrahim Desai.


[i] وَلَهُنَّ الرُّبُعُ مِمَّا تَرَكْتُمْ إِنْ لَمْ يَكُنْ لَكُمْ وَلَدٌ فَإِنْ كَانَ لَكُمْ وَلَدٌ فَلَهُنَّ الثُّمُنُ مِمَّا تَرَكْتُمْ مِنْ بَعْدِ وَصِيَّةٍ تُوصُونَ بِهَا أَوْ دَيْنٍ

(سورة النساء، آية ١٢

 

[ii] ( يُوصِيكُمُ اللَّهُ فِي أَوْلَادِكُمْ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنْثَيَيْنِ فَإِنْ كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ وَإِنْ كَانَتْ وَاحِدَةً فَلَهَا النِّصْفُ

 

[iii] ﻗﺎﻝ: ﻳﺗﺨﺎﺭﺝ ﺃﻫﻞ اﻟﻤﻴﺮاﺙ ﻳﻌﻨﻲ ﻳﺨﺮﺝ ﺑﻌﻀﻬﻢ ﺑﻌﻀﺎ ﺑﻄﺮﻳﻖ اﻟﺼﻠﺢ ﻭﺫﻟﻚ ﺟﺎﺋﺰ ﻟﻤﺎ ﻓﻴﻪ ﻣﻦ ﺗﻴﺴﻴﺮ اﻟﻘﺴﻤﺔ ﻋﻠﻴﻬﻢ ﻓﺈﻧﻬﻢ ﻟﻮ اﺷﺘﻐﻠﻮا ﺑﻘﺴﻤﺔ اﻟﻜﻞ ﻋﻠﻰ ﺟﻤﻴﻊ اﻟﻮﺭﺛﺔ ﺭﺑﻤﺎ ﻳﺸﻖ ﻋﻠﻴﻬﻢ ﻭﻳﺪﻕ اﻟﺤﺴﺎﺏ ﺃﻭ ﺗﺘﻌﺬﺭ اﻟﻘﺴﻤﺔ ﻓﻲ اﻟﺒﻌﺾ ﻛﺎﻟﺠﻮﻫﺮﺓ اﻟﻨﻔﻴﺴﺔ ﻭﻧﺤﻮﻫﺎ. (اﻟﻤﺒﺴﻮﻁ ﻟﻠﺴﺮﺧﺴﻲ-ﻛﺘﺎﺏ اﻟﺼﻠﺢ- ﺻﻔﺤﺔ -136)

 

[iv] ﻓﺈﺫا ﺃﺧﺮﺟﻮا اﻟﺒﻌﺾ ﺑﻄﺮﻳﻖ اﻟﺼﻠﺢ ﺗﻴﺴﺮ ﻋﻠﻰ اﻟﺒﺎﻗﻴﻦ ﻗﺴﻤﺔ ﻣﺎ ﺑﻘﻲ ﺑﻴﻨﻬﻢ ﻓﺠﺎﺯ اﻟﺼﻠﺢ ﻟﺬﻟﻚ (اﻟﻤﺒﺴﻮﻁ ﻟﻠﺴﺮﺧﺴﻲ-ﻛﺘﺎﺏ اﻟﺼﻠﺢ- ﺻﻔﺤﺔ -137)

 

[v] ﻗﺎﻝ: “ﻭﺇﺫا ﻛﺎﻧﺖ اﻟﺸﺮﻛﺔ ﺑﻴﻦ ﻭﺭﺛﺔ ﻓﺄﺧﺮﺟﻮا ﺃﺣﺪﻫﻢ ﻣﻨﻬﺎ ﺑﻤﺎﻝ ﺃﻋﻄﻮﻩ ﺇﻳﺎﻩ ﻭاﻟﺘﺮﻛﺔ ﻋﻘﺎﺭ ﺃﻭ ﻋﺮﻭﺽ ﺟﺎﺯ ﻗﻠﻴﻼ ﻛﺎﻥ ﻣﺎ ﺃﻋﻄﻮﻩ ﺇﻳﺎﻩ ﺃﻭ ﻛﺜﻴﺮا” ﻷﻧﻪ ﺃﻣﻜﻦ ﺗﺼﺤﻴﺤﻪ ﺑﻴﻌﺎ (اﻟﻬﺪاﻳﺔ ﻓﻲ ﺷﺮﺡ ﺑﺪاﻳﺔ اﻟﻤﺒﺘﺪﻱ-اﻟﻤﺠﻠﺪ اﻟﺜﺎﻟﺚ-ﻓﺼﻞ: ﻓﻲ اﻟﺘﺨﺎﺭﺝ- ﺻﻔﺤﺔ -198)

 

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