Estate Planning Fundamentals for Muslims: What is an “Islamic Will?”

This article is not intended to be religious advice. For guidance on religious matters, it is recommended that you consult a qualified Islamic scholar.

With the promise of warm weather and the sound of spring birds in the air, there is no better time to start planning your summer getaway. Just as you carefully organize your belongings for your upcoming trip, take a moment to get your personal affairs in order and organize your estate plan. After all, peace of mind is the best travel companion.

Estate Planning in Islam

Prophet Muhammed (PBUH) once said, “It is not permissible for any Muslim who has something to will to stay for two nights without having his Last Will and Testament written and kept ready with him.” In other words, estate planning is not merely a choice for many Muslims, but rather a religious obligation, and one that is particularly important for my fellow Ontarians.

Why Do I Need an “Islamic Will” in Ontario?

In Ontario, if you pass away without a Will (dying intestate), your estate is distributed according to Ontario’s intestacy laws. These laws state that, following the payment of debts, your spouse receives the first $350,000 of your estate (the “preferential share”), after which the remainder of your estate is divided amongst your spouse and your children. If you have no spouse or children, your estate flows to your next of kin. The intestacy laws impose an arbitrary division of your assets amongst defined next of kin covering all possible scenarios.

The distribution scheme of an Islamic Will is similar in that it considers your spouse and children, but it also considers parents, siblings, grandparents, grandchildren, cousins, nieces, nephews, aunts, and uncles. Similar to the preferential share under Ontario law, Islamic Wills include “quota heirs.” These heirs typically include your spouse, children, and parents. Following the quota heirs are “residuary heirs,” which typically include grandparents, siblings, nieces, and nephews. Next there are extended family members which include any blood relative not previously accounted for, e.g. cousins, uncles, aunts, etc. Notably, this does not mean that all these individuals get a portion of your estate. Rather, it means that, depending on who survives you, certain individuals may be entitled to a portion of your estate in accordance with Islamic law.

More importantly, and unlike Ontario’s intestacy laws, not every share in an Islamic distribution is treated equally — Islamic Wills incorporate both fixed and variable shares. For instance, if a wife passes away, the surviving husband gets 1/2 of her assets, or 1/4 if they had children. If a husband passes away, the surviving wife receives 1/4 of her husband’s assets, or 1/8 if they had children. The parents of the deceased each receive a 1/6 share. For the most part, the remainder of your next of kin, if they are entitled to your estate, receive variable shares. The following are some examples of what an Islamic inheritance could look like:

(1) If a husband predeceases his wife, son, daughter, mother, and father, the surviving wife receives a 1/8 share, the parents each get a 1/6 share, and the son’s and daughter’s inheritance is split 2:1.

(2) If a wife predeceases her husband and two daughters, with no other family members surviving, the husband gets 1/4 and the daughters share 3/4 equally.

(3) Finally, in a less likely but possible scenario, if a husband predeceases his wife, grandson, granddaughter, mother, and grandfather, the wife gets 1/8, the grandson gets his 2:1 share with the granddaughter, the mother gets 1/6, and the grandfather gets the 1/6 the father would have received had he survived his son.

At an initial glance, the distribution scheme of an Islamic Will can seem complicated, and sometimes it is! But that is why it is all the more important to incorporate this distribution scheme into your Will. This distribution scheme is at the heart of what makes a Will an “Islamic Will,” and without specifically incorporating this scheme into your estate plan, your estate will not be distributed in accordance with Islam.

Additional Considerations for an Islamic Will

While the distribution of an Islamic Will is set in stone, there is some flexibility for providing for those in need who would otherwise not receive a portion of your estate, i.e. charitable purposes. Specifically, Islamic law requires that at least 2/3 of the testator’s estate is to be distributed to next of kin in accordance with the distribution scheme discussed above. The remaining 1/3 can be used for charitable purposes, keeping in mind that the testator can make gifts during their lifetime separate from the aforementioned distribution scheme.

Some other considerations you will want to keep in mind when contemplating your estate planning include instructions for funeral and burial arrangements, selecting an estate trustee to administer your estate, and selecting whom you wish to have guardianship over surviving children.

Conclusion

When asked who of the believers (of Islam) are the wisest, the Prophet Muhammed (PBUH) said, “Those who remember death often and have best prepared for it with good deeds; such are the wisest.”

Reflecting on our own mortality is not easy, but as Muslims, we have a duty to prepare for death, and this includes preparing our estate plans. As you take time to prepare for your upcoming summer trip, take a few minutes to “remember death” and prepare for it.

Sanan (Sunny) Mirza is a member of the Lerners Wills & Estates team. He is available to assist you with your estate matters, including the preparation of an Islamic Will.