Q: My father passed away approximately seven years ago. My brother was the appointed executor of the estate. However, until today, he refuses to wind up the estate. Over the years since my father’s demise, my brother has continued to run the business and deal in the assets left by my father at his own discretion.
My questions are:
1. What is the current state of the estate and how should it now be distributed?
2. What are the powers of the executor? Can he deal in the assets of the estate (e.g. sell them) without the consent of the other heirs?
A: The law of shariah in regard to how the wealth of the deceased should be disposed is as follows:
1. Firstly his wealth will be used to pay for his burial expenses (i.e. purchasing his kafan, transporting the body to the graveyard and purchasing the grave).
2. Secondly, his debts will be settled.
3. Thirdly, if he made a bequest for any non heir, the bequest will be fulfilled from one third of the wealth that remains after settling the debts.
4. Fourthly, whatever wealth remains thereafter, it will be distributed among the heirs, according to the stipulated shares of inheritance.
In regard to the issue in question, all the wealth and assets that remain (after fulfilling the bequests from the one third of the estate which remains after settling the debts and liabilities) will be owned by the heirs in accordance to the stipulated shares of inheritance. No heir will have the right to deal independently in the wealth of the estate without consulting the other heirs, as the wealth belongs to all the heirs collectively.
As far as the executor is concerned, he has been nominated from the side of the deceased in order to ensure that the wealth is distributed correctly in accordance to the laws of Shari’ah. Shari’ah does not recognize the executor having any extra right or authority over the wealth on account of him being appointed as the executor. Hence, as long as the wealth is not distributed among the heirs, all the heirs have a right in the wealth, assets and business and they should be consulted before any decision is taken. Similarly, the profits accrued from the business will be owned by the heirs collectively, in accordance to their stipulated shares of inheritance. If at any point some heir wishes to sell his share, then it should be done with mutual consent and no coercion.
Winding and distributing the estate among the heirs after the demise of the mayyit is waajib. It is not permissible to delay the process of distributing the estate. Intentionally delaying in distributing the estate and giving each heir his rightful share is a great sin. Apart from this, many complications arise as the wealth is controlled and enjoyed by certain personalities depriving others of their rightful share. If there are minor children among the heirs and their rights are usurped, the sin is even more serious.
Many a time, some of the heirs pass away before the estate is wound and distributed and they do not benefit from their rightful share during their lifetime. Even if the estate is distributed correctly later on and their shares are given to their respective heirs, the sin of intentionally delaying in winding up the estate and depriving them of their right over the wealth during their lifetime still remains.
May Allah Ta’ala bless us all with the taufeeq of fulfilling every command of Shari’ah as it was prescribed by Rasulullah (sallallahu alaihi wasallam) and not depriving any person of his right.
And Allah Ta’ala (الله تعالى) knows best.
عن أبي حرة الرقاشي عن عمه أن النبي صلى الله عليه وسلم قال لا يحل مال امرئ مسلم إلا عن طيب نفس (سنن الدارقطني، الرقم: 2886)
لا يجوز التصرف في مال غيره بلا إذنه ولا ولايته (الدر المختار 6/200)
وفي العناية قيد بالغيبة لأنهم إذا كانوا حضورا ليس للوصي التصرف في التركة أصلا إلا إذا كان على الميت دين أو أوصى بوصية ولم تقض الورثة الديون ولم ينفذوا الوصية من مالهم فإنه يبيع التركة كلها إن كان الدين محيطا، وبمقدار الدين إن لم يحط، وله بيع ما زاد على الدين أيضا عند أبي حنيفة خلافا لهما (رد المحتار 6/710)
عن سعيد بن زيد رضي الله عنه قال سمعت النبي صلى الله عليه وسلم يقول من أخذ شبرا من الأرض ظلما فإنه يطوقه يوم القيامة من سبع أرضين (صحيح مسلم، الرقم: 140)
قال البيع ينعقد بالإيجاب والقبول إذا كانا بلفظي الماضي (الهداية 3/18)
Mufti Zakaria Makada
Checked & Approved:
Mufti Ebrahim Salejee (Isipingo Beach)