By Mujlisul Ulama
The custom which is universally prevalent after burial of the mayyit (deceased) is involvement in futility and even frivolity. The family members assemble at the home of the deceased for some feasting, crying, perhaps even wailing, discussing the exploits of the mayyit, and some even for gheebat. In the variety of activities in which the family members engage, the first and foremost Waajib act commanded by the Shariah is disregarded with wanton neglect and even disdain. Attendance to the estate – the assets – of the mayyit is not accorded the least bit of attention although this is the first compulsory obligation after burial.
This neglect perpetrated by 99.9% of the people invariably leads to misappropriation of the mayyit’s assets, usurpation, defrauding, and denial of the correct shares which Allah Ta’ala has apportioned for the heirs. In almost all cases of such flagrant disregard of the Shariah’s command, the consequences are heartrending and vile in the extreme. After some time has lapsed without proper accountability and division of the estate in accordance with the Shariah, the heirs – brothers and sisters – mother and children – aunts and uncles, etc become life-long enemies, each one accusing the other of having usurped his/her rightful share of inheritance.
The prime culprits usually in fiascos of this type are the mayyit’s sons who operate and manipulate the mayyit’s business and assets as if they are the sole owners. Nothing is recorded. No agreement is made with the other heirs. The daughters are generally ignored, and the sons continue with the business as if they have become the sole owners. The estate is allowed to drag on indefinitely until ultimately the issue becomes confrontational. Then commences the long uphill battle of acrimony, accusation, counter-accusation, even violence and kuffaar-court actions to resolve an Islamic issue with kuffaar law. When this stage of corruption is reached, the adversaries, despite professing to be faithful Mu’mineen, see only kuffaar law as their succour. In so doing, they move directly into the glare of Allah’s Decree: “Those who do not rule according to that (Shariah) which Allah has revealed, verily they are the kaafiroon.”
There is a glut of cases of this sort of misery. Whenever Muslims do not submit to the directives of the Shariah, the inevitable consequences are misery, animosity and even life-long disruption of very close family ties. Brothers become enemies to one another; brother becomes the enemy of the sister; mother becomes the enemy of her children; grandchildren become the enemies of their seniors who had perpetrated the corruption in the first instance. Muslims – close family members — are squandering millions of rands in legal fees fighting one another in the courts for the carrion of the world. All the noble and lofty ideals produced by blood ties are eliminated. Observers viewing the scenario from outside are aghast and could be forgiven for doubting the legitimacy of those clawing at each other in their homes and in the courts to lay their hands on the rotting meat of this dunya. If an observer concludes that those fighting each other over inheritance issues are perhaps the illegitimate offspring of the deceased, he could be forgiven because true blood brothers and blood sisters do not or are not supposed to conduct themselves with such vehement acrimony and intense animosity as heirs do for the acquisition of money.
What is the duty of the heirs? After the mayyit has been buried, the first duty of the senior members – usually the adult sons – is to make a detailed meticulous inventory of the mayyits assets – all his assets – even the shoes and the unwashed pair of socks he was last wearing. Every item of the estate has to be recorded. It is essential to understand that every heir’s right pervades every single item in the estate of the mayyit. There is not a single heir, male or female, who has the right to claim a specific item in the estate. Since the rights of all the heirs are related to every item, the division of the assets will have to be with understanding, give and take – with compromise – as is expected of Muslims who have some fear of Allah Ta’ala in their hearts. The heirs are not expected to behave like cats and dogs. They are expected to act responsibly with bigness of heart as is expected of Mu’mineen.
After returning from the Qabrustaan (graveyard), instead of assembling for refreshments and nonsensical conversation, the male heirs and even the female heirs, if they are not ghair mahram, should immediately commence with the work of the inventory. Not an item should be excluded. The emphasis is more on a physical stock-taking of the business assets. The stock and other assets in the shops and factories must be accurately listed. In fact, the stock-taking has to be 100% genuine, unlike the estimates which are prepared for tax purposes.
The male heirs who are in charge of the business of the mayyit should understand that it is haraam for them to continue business operations without an agreement with the other heirs. Every heir has his/her proportionate ownership in every item of the stock, equipment and vehicles, etc. which had belonged to the mayyit. The ownership of the heirs is established simultaneous with the death of their father/relative. It is therefore not permissible for any heir to utilize any asset of the estate without a proper agreement having been made.
If those in charge of the business continue to trade without any agreement with the heirs, they are guilty of usurpation of the assets of the heirs. This happens in 99.9% of cases in which the mayyit leaves behind a business. The trading continues for years and sometimes for even decades. At such a stage more than one generation of heirs become entangled in an almost insoluble mass and mess from which amicable extrication is a virtual impossibility.
One very important fact which all heirs should take note of in a case of such usurpation of assets with which some of the heirs continue the operation of the business, is that despite the usurpation, all future profit yielded by the business belongs to those who operated the business. The future profit, that is, after the demise of the mayyit, does not form part of the estate. The rights of the heirs are related to only the assets which the mayyit had left, not in future profit acquired from the usurped assets. The usurpers will have to face the Reckoning in the Divine Court for their usurpation – for having utilized the assets without the consent of the owners.
An extremely contentitious issue due to ignorance and greed develops when the usurper heirs have to pay the other heirs for the assets they had utilized without consent. The usurpers invariably claim that the value of the assets on the day of demise has to be paid while the other heirs claim the current value. The heirs are entitled to demand that the usurpers pay their share with tangible assets. For example, if the business assets comprised of groceries, and the estate is finalized only after five years, the heirs can claim that their share of the assets be paid in groceries. The usurper heirs may not argue that they will pay whatever the value of the groceries was five years ago at the time of demise. Either they have to pay with groceries or make a reasonable settlement which is acceptable to the heirs.
If the usurper heirs had utilized the gold coins of the mayyit, they have to pay the other heirs in the form of gold coins. They will have to buy gold coins at today’s price and pay the heirs therewith. The value of the coins five years ago has no validity. There are therefore three options to settle the usurpation: (1) Pay in the form of tangible assets (2) Pay the current value of the assets (3) Arrange a compromise settlement acceptable to the aggrieved heirs.
Usually the mayyit’s vehicles are appropriated and misappropriated by the sons who utilize the vehicles to the exclusion of the daughters and other heirs. This issue should be resolved the very day of the demise, immediately after burial of the mayyit. A price mutually agreed on should be fixed for the vehicles. Whoever among the heirs desires to retain the vehicles will have to pay the price minus his share. The cash should then be divided among the heirs in accordance with the law of Inheritance. It is haraam for any one heir to simply take possession of a vehicle and utilize it for himself to the exclusion of the others. The heir purchasing the vehicle/s may arrange to pay the other heirs in instalments. It should however be remembered that all dealings have to be by mutual cooperation and agreement. An heir by virtue of his seniority has no right of imposing his will and decision on the other heirs. It should be expected and accepted that there will have to be a degree of compromise in the process of physically dividing the assets. Most assets cannot be physically divided into bits and pieces. For a successful settlement in this area, the attributes of Imaan play a prominent role. We are not expected to behave like animals and such persons who have no belief in the Aakhirah and the Reckoning in the Divine Court. When distributing the assets, always bear in mind the following advice and promise of Rasulullah (sallallahu alayhi wasallam):
“I guarantee a (special) palace in the middle of Jannat (i.e. the prime site in Jannat) for one who abandons a dispute despite him being rightful (in his claim).”
The score of the household furniture, crockery, cutlery and the mayyit’s clothing, etc. should be settled on the very day of the demise. The distribution of these items should be effected by physical division of the various items into lots of approximately equal value, or individual articles should be sold to heirs who wish to acquire such items or by compromise settlement.
It is of great importance to understand that gifts made by heirs of their shares or waiving of their rights are not valid prior to taking physical possession of their respective shares of the assets. Thus, if an heir makes a ‘gift’ of his/her share of the assets, such gift will not be valid. The heir still retains his/her right. He/she should first be given physical possession of his/her share of the assets. Thereafter, the heir may decide what to do with the assets.
Many people simply donate the mayyit’s clothes to charity. This is not permissible. If all the adult heirs unanimously decide to make a donation of the clothes or of any specific item, then too the rule of possession is essential. The garments should be physically divided into lots and handed over to the heirs. Thereafter they may donate whatever they wish and to whomever they wish. It is impermissible for an heir to canvass the others and to induce them to donate any part of their assets to charity, etc.
The shares of minor (nabaaligh) heirs have to be compulsorily held in trust until they are of discerning age capable of handling their own finances.
This discussion is a brief outline of the action which should be taken by the heirs immediately after burial. An inventory of all the assets immediately after burial is Waajib. All other related issues – and there are many – should be solved and settled with the guidance of Ulama who are experienced in the matter of Inheritance.
Usurpation of the assets of heirs is akin to the crime of murder for which ‘everlasting’ punishment in Jahannum has been threatened.