Panic over the global public health steamroller COVID-19 has many of us in the Muslim community thinking about the future: specifically a future without you, the reader, in this world, amongst the living.
There are many articles about how you should not touch your face or how to make bootleg hand sanitizer with vodka to avoid death for the time being. This article will do none of those things. Let’s just assume that no matter your big-box shopping habits or travel plans, you are going to die eventually. Panic is a reflection of our sense of mortality and the care we have for our loved ones and communities.
When you die, you leave behind people, possessions, and often real estate and businesses. You have responsibilities to deal with when you are no longer here, to your family, your customers, lenders, employees, and others. Of course, you can’t deal with these responsibilities yourself, since you would be dead. The purpose of this article is to help you sort out how your responsibilities will be carried out.
Inheritance in Islam
Everything in the heavens and the earth and all that it contains belongs to Allah. Everything you have that you cannot take with you has been entrusted to you while you are here. Though this is rarely the topic of khutbahs on Jummah (back when we used to do that kind of thing) Islamic Inheritance is fard on all Muslims who have stuff they won’t take with them. Your property is not your own.
Allah has ordained inheritance in the Quran. That means inheritance is not distributed based on your sense of vanity and what you think is better, but based on the command of Allah. This is different from the way we usually do things in the United States. Doing inheritance right is obeying Allah. It is an essential act of worship most American Muslims seem to ignore, to the extent we are familiar with it at all. Inheritance is a bigger deal than most Muslims seem to realize. Allah in the Quran prescribes hellfire for those who disobey Allah’s command. If you go without obeying Allah’s command on inheritance, that is your parting shot, a legacy of injustice and disobedience to Allah.
There are a great many Muslims I have come across over the years who are offended by Islamic Inheritance; just the notion makes them sick. I don’t know what to do for them.
Islamic Inheritance is fundamental to our society and for maintaining peace in our families and communities. It is a bulwark against intra-family oppression and conflicts, protects orphans while uniformly apportioning rights. It is a remarkable system that benefits humanity. You can read a comprehensive guide on Islamic Inheritance here if you want further exposure to the subject. Muhammad (SWS) is reported to have said: “learn fara’id (Islamic rules of inheritance) and teach it to the people.” So if you gain anything from your current bout social isolation, learn about Islamic Inheritance.
Many people translate “wasiyyah” to “last will.” This is fundamentally wrong, at least when it comes to the American understanding of what the last will is. While both are written instructions, the last will and wasiyyah have unique limitations that have no relationship with each other.
You can give up to 1/3 of your estate for beneficial purposes. You could give to charity or those who do not already inherit from you. It is common for beneficiaries of the wasiyyah are poor relatives overseas or grandchildren not entitled to inheritance. You should read this guide for how the wasiyyah works.
Guardianship for minor children
For those with minor children, guardianship is often an urgent yet often ignored concern. You should have a solid understanding of what could happen in the event your children become orphans, and there is no living parent. Will they go to child services? Would grandparents fight over them? Might that weird uncle attempt to get custody and try to convert them to atheism? Do you have family overseas, but they cannot travel to the United States because of a global pandemic?
Of course, you don’t know what will happen. All planning is about creating a rule book for an indeterminate time in the future where you have no idea about the circumstances of the people you will leave behind. You can read an article at MuslimMatters from a few years ago called “how to raise your children when you’re dead.” I have also prepared a more comprehensive guardianship guide for Muslims.
Guardianship is either addressed through a last will or separate writing in states that allow this. You do not name guardians in a living trust.
This part is not technically planning for death, but it is commonly included in estate planning. Many people end up living longer lives but are dependent on others. There is a process in every state for the government to take away a person’s liberty, not for a crime they committed, but to protect them from exploitation and financial elder abuse, leading to poverty. Scammers, both online and offline, tend to target people who fit a particular profile.
This legal protective process is called “conservatorship,” and it is costly, and the hearings and documents are public. Part of estate planning is to protect the dignity and privacy of people while their families make decisions.
It is common for people who do their estate planning to have both a living trust and power of attorney. Incapacity provisions in a living trust only cover assets that are registered the living trust. Certain kinds of property, like IRAs, are not owned by a living trust.
States generally have their forms for making healthcare decisions. These are recognized by hospital staff for those times when a patent cannot give them consent to do things. You need to name someone you trust that can make decisions for you.
Healthcare Directives ask questions beyond naming proxies. For example, they will ask about your preference when if you have an incurable illness, in a coma, and doctors are saying you have no reasonable chance of getting out.
These directives may also ask about your organ donor preference. Do you want to be a donor at all? Are you ok donating for organ transplants? Would you mind if medical students dissected your body and posted the pictures on Instagram? Such minutiae won’t necessarily be in these forms, but that’s what they could mean, depending on the permission you give.
Healthcare decisions can be an extraordinarily complex area, with much written about the subject. Your planning documents cannot account for future medical conditions. Whatever you write, other than who has decision-making authority is going to be necessarily vague. Reading these things may leave you wondering about things like what is an “incurable illness”? What is “a reasonable period of time”?
Focus on the concrete, who you trust to make these decisions, rather than potential hypothetical scenarios around your medical care.
These are situations where loved ones face painful choices. You can make it clear who makes decisions; however, no document makes medical treatment issues less difficult for loved ones.
Will or a Trust?
A question for many is, what do you do, living trust or a will? What that question means is should the main provisions of an Estate Plan, which is the overall plan for organizing your affairs, be in a trust or a will, which are both different kinds of documents. When you have a living trust, you almost always have a last will as well. Those who have last will- based plans could have several trusts inside them.
Wills, trusts, powers of attorney and everything else you do in service of organizing your affairs are pieces of paper. The specific documents you create are ways of fulfilling your goals, they are not the goal by themselves. A trust is a form of a contract with usually no judicial supervision. A last will is similar, but there are instructions for a judicially supervised process called “probate.” The main difference between a will or a trust is a judge’s oversight.
For most everyone with property, we will typically recommend a trust-based estate plan that includes several documents. Like any contract, what a trust says and does can vary widely. To learn more about trusts, especially Islamic Living Trusts, read this article.
A lawyer or no lawyer
Lawyers are expensive. Most people would rather not spend thousands of dollars on something if they could avoid it. Lawyers just produce pieces of paper, right? Why not just do it yourself? Just go to a website that fills out blank spaces in a template and pay far less than a lawyer?
As an Islamic Estate Planning Lawyer myself, I will attempt to avoid saying anything that sounds self-interested. My advice to anyone who asks is that while inheritance is fard in Islam, nothing you do is worth it unless you have peace of mind from doing it. You may be the person that strives to pray, read the Quran, and give in charity and deal with your family with excellence because that is what gives you peace of mind. Do any of these things in a way that makes you uneasy, well, you don’t have peace of mind.
If going to a form filling website or writing a will by hand gives you peace of mind, do that. If getting advice from an experienced attorney gives you peace of mind, then do that.
Merely going to a lawyer, even an especially experienced one, should not give you peace of mind by itself. The lawyer needs your active engagement in the process to make sure you are doing right by everyone. Educate yourself about Islamic Estate Planning to make sure that elements specific to your family and business are the way you want. Estate Planning is one of the most important things you will be doing for your family, and you should attend to it with the seriousness it deserves.
You hire a lawyer because of his or her knowledge of the law, Islamic rules, and experience in developing solutions. You should never hire a lawyer in any situation to act as your substitute brain.
Selecting a lawyer
Estate Planning is a field most lawyers know little about. Many state bars will certify “specialists” in the field. However, it is possible for you to find an attorney well-versed in the area but not a board-certified specialist.
Your planning involves contractual, state, and federal law elements. Ideally, you will have a lawyer in your state who is a Muslim and knowledgeable about both estate planning and Islamic rules. Unfortunately, this is not always possible.
Arizona Attorney Yaser Ali and I (California and Texas licensed) wrote a “Practice Guide” for lawyers called “Estate Planning for the Muslim Client” (2019, American Bar Association). The idea behind this project was to give lawyers, regardless of creed or state of residence, an understanding of Islamic Inheritance and how Islamic rules figure into various established estate planning strategies for Muslim clients.
The book also provides templates and examples. We intended the book to be useful for such lawyers to help their Muslim clients plan. Of course, it is common for lawyers also to get help or co-counsel across jurisdictions. The lack of a lawyer with expertise on Islamic Inheritance rules in your local area should not be an excuse.
For people with few assets
The biggest problem with hiring lawyers is that they usually charge for their services. Many Muslims with relatively modest assets might not think it’s worth it. However, a woman with a few thousand dollars in assets may want to do something, like name guardians for minor children, name an executor and provide instructions on how to divide her modest estate without giving most of it to a lawyer. In such instances, a “do it yourself” approach may make sense, or at least it’s better than doing nothing.
Islamic will templates are freely available all over the internet, with varying levels of usefulness and value. Attorney Yaser Ali has created a template and form filling website where anyone can create a last will and calculate inheritance and a state-specific will for free. If you cannot afford a lawyer, you should take a look at this resource. It does not replace a lawyer, however.
One place the Muslim community excels at is burial. Most everywhere in the United States, there are volunteers and paid staff who quickly and efficiently deal with the entire process of ghusal, janazah prayer, and burial. We can often measure the time between death and burial in hours, not days. Sometimes there are reasons for a delay, however. In this kind of environment, people don’t look around for instruction documents, other than proof of ownership of a burial plot.
My advice on burial instructions, at least in the local area that I live, for most Muslim families is not to worry too much. Your family and friends will know what to do and don’t need your help in the matter. Sometimes, people want to include detailed instructions; things like women should not cry. Don’t overthink these things.
There are solid reasons for detailed burial instructions, though. One that comes up regularly is for Muslims who do not have Muslim families. For such individuals, merely having burial instructions is not enough. Such a person should name a Muslim friend, or perhaps more than one, in health care documents. People from the Muslim community need to know when a Muslim is sick in the hospital and, of course, when he or she has died.
There is far more to preparing for death, but a whole lot of that involves life itself. For more on that, attend Jummah khutba when they start offering it again, InshaAllah.
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Source: Muslim Matters