Islamic Wills - 21 Misconceptions & Mistakes
Islamic Wills is the most popular and easiest to create and maintain estate plan compared to Revocable Islamic Trust (or Waqf). That's why we all want to create a Will compliant with Shariah. However, there is a large gap between perception and reality in our understanding of Islamic will, and that's why we are prone to adopt misconceptions and commit mistakes, which become costly deals after death.
You would be eager to learn about those misconceptions, right? We will go through them one by one, which will help you align your thoughts in the right direction.
1. Wealth is mine
Your wealth becomes the wealth of Allah (subhanahu wa ta aala) after your death. So, realizing that your wealth is not yours is essential. The strongest argument about this notion can be deduced from the Holy Quran, Surah An-Nisa, in which Allah (Subahanahu Wa ta aala) directs Muslims to follow the Inheritance distributions precisely. There is a reward for those who follow (Holy Quran 4:13) and punishment for those who do not (Holy Quran 4:14).
2. Burdon of estates
Many perceive creating and managing estate planning as a burden. It is too much for many. In reality, it is a blessing for Muslims and gives them a chance to purify from sins. So, it is an opportunity. This fact is revealed in this Hadith that states: It was narrated from Ibn Umar that the Messenger of Allah (Sallallahu alayhi wasallam) said, "(Allah subhanahu wa ta'ala says) O son of Adam! I have given you two things which you do not deserve (except by the mercy of Allah subhanahu wa ta'ala): I allow you to dispose of a share of your wealth when you are on your deathbed in order to cleanse and purify you, and my slaves pray for you after your life is over." -Sunan Ibn Majah, Book 22, Hadith 2814
3. The word islamic will
There are a few keywords to note here, like Islamic and Shariah, which are heavily linked to Muslims, and when they see this word attached to the Last Wills and Testament, they get the impression that their Will would take care of everything about Shariah after they die. This is merely a misconception because most people are not familiar with the legal complexity that plays with the Last Will. Writing words in Islamic Will can turn the Will into a Shariah complaint; this is by far the most common misconception everyone has. It's not the word that makes the Will religiously compliant but the methodology and principles embedded in the Will for estate distributions.
4. Will is Islamic
Many Muslim organizations, including mosques, post the Wills template on their website. When such a reputed organization posts these templates, Muslims blindly take this with a grain of salt and use these templates to finalize their estate plans. Not many people know the logic behind this posting. They aim to improve SEO for their website, which is very damaging because Muslims grab these templates without looking at the disclaimer that "This Islamic Will template is for reference only."
5. All assets are covered
Including and listing all assets in the Will can cover all aspects of your estate is mere thought away from the fact. You should know that many assets cannot be covered even though you have listed them firmly in your Will, and examples are many, such as Joint assets (i.e., Joint Tenancy, Tenancy-by-Entirety), Insurance proceeds, Intellectual properties, Investments with beneficiary designations, and many more.
When it comes to creating Islamic Will, the legality and Shariah should be observed in parallel rather than in silo. Wassiyyah ensures the proper review taken place before offering estate plans for users to meet both country and Islamic compliance. If estate plan does not meet either of these compliance, Wassiyyah considers to be invalid.
6. Legality misunderstood
Creating a Will with a lawyer or attorney makes it legal, and if the Will is witnessed and notarized, it becomes a legal document. However, this is not entirely true in many aspects. Let us reword the words "Legality" to "Validity" and "Compliance" to give more meaning. Wassiyyah considers it legal if it is valid in the court of your country without losing Shariah compliance because not all legally valid Wills necessarily comply with Shariah. Let us review a few examples.
EXAMPLE-1: We observed the Will created in India. We found that he (i.e., lawyer) did not follow and respect Shariah in creating a Will for a Muslim fellow even though the primary succession law of Muslims is Shariah in India (i.e., Muslims personal law - Shariat). When we asked why this will does not follow Shariah, he said not many experts are familiar with Shariah even though they are lawyers and profess the Islamic faith. So, the concept of Shariah regarding the Last Will is new to many experts, so it poses non-Shariah-compliant risks.
EXAMPLE-2: The Will was created to meet all minimum legal requirements per country law. When the executor examines it after the testator's death, it leaves no assets to distribute because, as we mentioned previously, most assets are not covered in the Will. So, it is not valid and is non-compliant. It is useless for Muslims even though it is legally valid.
When one joint owner dies, another takes an entire portion of the estate without hesitation or regard of Shariah (Holy Quran 4:11-15). This has been the trend of Shariah non-compliance observed in most Muslim families who own assets jointly. It does not mean having Joint assets bad but infact, it's a great way to avoid probate. Point is having joint assets would not work itself if you do not apply any other estate planning strategy to mitigate Shariah non-compliance risk. Wassiyyah has team of experts in Shariah and we ensure you do not face the issue of non-complinace to Shariah.
7. The last wills is the ultimate
Creating a will is just the first step, but Wassiyyah considered it the most minor (or least) step; unfortunately, many create their Wills and sit back until the end of life. Assuming Will will care for everything you own this is the biggest mistake. The last Will should be created as a backup estate plan, i.e., the last line of defense but not the first. This is why most Attorneys and Lawyers who are experts in Islamic estate planning do not recommend creating an Islamic Will as the primary estate plan.
8. Do not need last wills
There is good news for those who believe they do not need a Will (or any other estate plan) because the government will look after their estates not graciously but disparately. Since the person (who lost mental capacity) or deceased does not have a Will, the government has a ready-to-go Will called a Statutory Will. Let us clarify the danger of relying on a Statutory Will.
The government does not like to deal with estates due to a lack of resources, so if you do not have an estate plan, the wait time to create a Statutory Will may take months or years. Until a competent court creates, validates, and approves the Statutory Will, the incapacitated person's estates can be at risk.
The Statutory Will is a court's last resort because it involves a complex process that can be troublesome for family members.
Lastly, It will be 99.99% shariah non-compliance in most cases.
9. Verbal last will is valid
The verbal Will can be valid under Shariah if witnesses are heard and confirm your Will. This notion can drag many Muslims to debate and discuss the requirement of having a written Will under Shariah. Irrespective of the case, you must need a written will that is Shariah and legally compliant for the following reasons.
Most world countries, including those Muslim-majority countries, do not accept verbal Will. Respecting the Laws of the land is a requirement that most Islamic Scholars uphold.
Verbal requirements of Shariah do not negate or invalidate the written Will.
The requirement of Will is emphasized in this Hadith that states: Prophet Muhammad (Sallallahu Alayhi Wasallam) said, "It is a duty of the Muslim who has anything to bequeath not to let two nights pass without including in his Will." -Sahih Al Bukhari, Chapter 1, Book 13, Number 3987
10. Last will can be in any form
You can create the simplest Islamic Will by saying, "Distribute my estates of every nature as per Islamic Inheritance Law." Wassiyyah has observed that the Will was created by a non-Shariah expert (lawyer), who added this sentence to their Will to satisfy their client. However, this does not work in the dynamics of complex legal laws in countries where laws are not purely Islamic or not at all Islamic. As we mentioned before, the majority of the countries of the world, including Muslim-majority countries, have adopted French and British law in addition to Shariah. That's why this approach to estate planning does not work.
11. International inheritors
Whether you live internationally or not, your estate planning path can be affected. Let us take a few examples below to see how international inheritors are challenged to receive their portion of the inheritance.
EXAMPLE-1: A deceased person who lived in the United States but originally migrated from India. His parents are in India. Under Shariah, his parents would be entitled to receive an inheritance share,but it will be challenging to distribute shares to parents because they are not residents or citizens of the United States.
EXAMPLE-2: A person is deceased and left with large estates in India (who never visited the United States), but his siblings live in the United States. He does not have sons, only daughters. His siblings will be entitled to share as per the laws of Muslim inheritance but cannot receive it because they are now citizens abroad.
EXAMPLE-3: A person who lives in the United States but whose children live in the UAE. In this situation, if anyone dies, they would be entitled to the share of Inheritance under Shariah.
Wassiyyah offers global Islamic estate planning solutions that match any scale and complexity of estates and inheritors. Wassiyyah offers many type of Wills to cover estates globally.
12. One type of will can fit all
Knowingly or Unknowingly, most people create one Will to cover domestic and international assets in different jurisdictions (i.e., state, province, or territory) or outside the country. You must create a specific type of will, such as an international will if applicable. Creating one type of Will can pose issues for covering assets internationally. You cannot cover global assets in one Will.
13. Non-automatic
Nothing is automatic when it comes to the Last Will. What you do and care for your wishes, estates, and inheritors that matter. Caring is the first recognition of the gap in estate planning, but you must start considering the strategy to mitigate risk. Most people believe that creating a Will is sufficient and valid for the estate distributions after death. But Will's real story starts only after death.
14. Validity of last will
The following unanswered questions remain as is until Will goes to the Probate (for court proceedings) after death. Executors cannot distribute estates until the court validates and approves them. Until then, all the estates connected to the Last Will (that is covered) are frozen.
Is my Will complaint in legal terms?
Is my Will compliant religiously?
Is my Will valid? It is not considered valid until the court approves it in the Probate.
What part of the Will be allowed and disallowed to be distributed as per my wishes and faith?
Shariah is the same for all Muslims globally, but the legal framework differs vastly. Wassiyyah team has studied, researched, and incorporated the legal laws of Will specific to the country to meet both legal and Shariah compliance.
15. Making a Will to be primary estate plan
As previously mentioned in this blog, creating a Will as a primary estate plan would not cover many estates. That's why, in many cases, the Will becomes useless. It abuses the concept of a Will by having no other things in order and hoping for the best outcome. Not following Shariah directly contradicts the fundamentals of Islamic inheritance law, as below.
Allah (Subhanahu Wa ta aala) has precisely mentioned the share for married couples, children, parents, siblings, and more in these verses of the Holy Quran (4:11-14, 176).
Intentionally or Unintentionally, you cannot deprive Islamic Inheritance heirs by creating a useless Will which may impact the share in paradise. It was narrated from Anas bin Malik that the Messenger of Allah (Sallallahu alayhi wasallam) said, "Whoever tries to avoid giving the inheritance to his heirs, Allah (Subahanahu Wa ta aala) will deprive him of his inheritance in Paradise on the day of resurrection." -Sunan Ibn Majah, Book 22, Hadith 2806
16. Trust is adequate
Creating a Revocable Individual or Family Trust (or Waqf) is the best for many with substantial assets to save from estate transfer tax's impact and ensure compliance. However, some estates that can be left out right before death are only covered under the Last Will. The reason is that Trust requires accurate information about assets all the time. Any assets not part of the established Trust would not be covered under the Trust. Another reason is that some people start with Trust but leave without the proper establishment. You should know that creating trust is the first step, but you must establish it by moving all assets into trust. If you miss any assets (moving into Trust) right before death, it would not be covered under the Trust. So, you need the Last Will (called Pour-Over Will) irrespective of whether you create a Trust to protect estates left out from the Trust.
17. Scared of Shariah
Even though we uphold Shariah in many aspects of life, including worship, prayers, fasting, giving Zakat, performing Hajj, and respecting moral principles, when it comes to Shariah related to inheritance, it becomes scary for Muslims who live in non-Muslim majority countries. Not many Muslims know the implications of not following the succession laws. If you discover implications, then you will obey whatever it requires. Undoubtedly, following Shariah in Islamic estate planning goes beyond basics. However, it does not give any green light as one cannot follow Shariah because the land laws are non-Islamic. Many respected attorneys believe that we may face difficulties in estate planning because we do not follow Islamic law as we should. Of course, you will need a creative and the best solution to implement the inheritance under Shariah in a country without Islamic laws. That's where the Wassiyyah's role becomes crucial in helping you meet Shariah without issue.
18. Over emphasizing
Misusing and overusing the words "Islamic" and "Shariah" in Islamic Will can negatively impact your estate plan. That happens when you create an estate plan (on your own) and try to over-emphasize these words by wrongly perceiving them as the best approach to comply with Shariah. You need to use these sacred words cautiously and wisely so that it does not undermine the value when it goes to court. One of the main goals of Wassiyyah is to meet objectives rather than over-emphasize these words where they do not need to. If your objective is unclear and you do not use the right expertise and resources, it does not matter what you do; it can end up in a mess.
19. Do not have assets
Wealth is not the only reason for creating an estate plan. One of the biggest reasons is three.
Guardianship for minors cannot be covered without having an Islamic Will.
Fulfilling debt obligations cannot be accomplished without having an estate plan. Paying off debt after death is not only necessary, but it is also mandatory, as you can read the Reasons to avoid Debt in Islam.
It is a fact that no one knows what the situation of wealth will be tomorrow. You are not wealthy today, but that does not mean that you will not become wealthy in the future right before death. So, you must have an estate plan available in any situation. If you are desperately poor but will have your belongings or cash, including a prayer mat, become part of your estate after death which must be distributed as per Shariah. We had heard examples of distributing pennies portion to inheritors when someone died who were diligent and conscious about their estate compliance.
Over the years, our team has learnt the tips, tricks, and methods to mitigate risks in estate planning. Wassiyyah protect your estate plan with multi layer approach without missing any opportunity.
20. Using free template
One of the most widely practiced trends is using free online templates to finalize estate plans. Legal firms have written many blogs to raise awareness that securing estates through unreliable estate plans is the worst thing. It takes years to learn and create an estate plan, whether for an attorney or other expert, because it requires experience. Whether you use Wassiyyah or not, but never use free templates for many reasons. Someone who grabbed templates and created an estate plan misses a large portion of compliance by saving a few dollars in estate planning with free templates. Read more in this blog Why should you not use free online Islamic Will templates?
21. Overconfident
We, as humans, fall into the trap of overconfidence. However, estate planning can be very costly when you are overconfident and do not know the facts. You need to note that you are securing your wealth, which you spent every moment of your life thinking about, building, and sustaining. We take hours to finalize the best deal for a vacation that wouldn't last longer than a few days. Then why are we not serious about securing vital wealth from worldly (for inheritors) and spiritual (for you) perspectives?
