Table of Contents
III. What Happens if You Die Without a Will?
V. Drafting Considerations for Islamic Wills
VII. Other Estate Planning Documents
Many Muslims consider estate planning to be especially important: not just to ensure their loved ones are cared for, but because they believe that making a will is a religious obligation. Wills are proscribed in Hadiths and in the Quran.
“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.”
– Hadith (Sahih Bukhari)
“Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable – a duty upon the righteous.”
– Quran 2:180
As a Muslim lawyer practicing estate planning, my Muslim clients commonly ask for an “Islamic Will” – that is, a will which complies with the proscribed testamentary shares in the Quran and in Muslim religious jurisprudence (also known as “Shariah Law” or “Shariah”). In fact, that may be the entirety of their instructions concerning their estate plan: “Please draft me an Islamic Will.”
Some of these clients do not know the proscribed testamentary shares of Shariah and rely on me as their lawyer to do that research for them. It is important to note that I am not a religious scholar and I do not hold any sort of formal religious credentials. I am a member of the State Bar of Georgia, or in other words, I am a lawyer who is licensed to practice law in Georgia. However, as a Muslim myself, I have done extensive reading on Shariah for my own estate plan and to help offer guidance to those of my clients that want an estate plan which complies with Shariah.
I have written this guide to provide Muslims in Georgia with information on how to make an estate plan which is compliant with Shariah and, importantly, Georgia law.
Estate Planning Basics
Your estate is everything you own at the time of your death. An estate plan is a set of legally-enforceable documents and designations which govern your estate. An estate plan lets you determine how your property is distributed, appoint an executor to administer your estate, appoint guardians for your minor children, and name agents to act on your behalf in the case of your incapacity. The most common estate planning document is a will (also known as a last will and testament). A will governs all of your probate property. Probate property is everything that you own exclusively in your own name at the time of your death without any sort of pay-on-death or transfer-on-death designation.
Non-probate property is not subject to your will. Non-probate property includes any joint accounts (such as a joint bank account in your name and your spouse’s name), accounts or policies which have a pay-on-death or transfer-on-death designation (common with bank accounts, retirement accounts, and life insurance), property which you own as a joint tenancy with a right of survivorship (common with real estate owned by married couples), and trust property. A trust is a more sophisticated estate planning instrument which is actually a fiduciary relationship. I discuss trusts later in this guide.
What Happens if You Die Without a Will?
If you die without a will, you are said to have died intestate, and all of your probate property will be subject to Georgia’s intestate laws of succession. These are essentially default rules for distributing your estate.
Here are the basics of intestacy in Georgia:
- If you are survived by your spouse and no descendants, your spouse gets your entire estate, even if you are survived by your parents or siblings.
- If you are survived by your spouse and one or more descendants, your spouse gets an equal share as your descendants but not less than a 1/3 share of your estate. Your descendants inherit you per stirpes, which means that each living root (counted at the child-level) gets an equal share of the estate.
- If you are not survived by your spouse or descendants, then your parents get your entire estate.
- If you are not survived by your spouse, descendants, or parents, then your heirs will be determined in order of priority as per O.C.G.A. § 53-2-1.
- If no heirs appear after four years from the beginning of the probate process, your estate escheats to the State of Georgia as per O.C.G.A. § 53-2-51.
These default rules are very different from the shares under Shariah inheritance, which I discuss later in this guide. Notably, the default rules may give a larger share to the spouse and may disinherit all other relatives (including parents and siblings) if your spouse or any descendant survives you. Therefore, a Muslim who wants his or her estate to be distributed in accordance with Shariah cannot rely on Georgia’s intestate laws of succession. He or she needs, at the very least, a will.
Finally, a will also lets you designate a guardian for your minor children and specify your burial preferences. Otherwise, if you die without a will, a Probate Court may appoint a guardian for your minor children (if orphaned) and the administrator of your estate may have to guess your preferences concerning funeral arrangements and the final disposition of your remains.
In this section, I provide a basic overview of Shariah inheritance rules. I also provide helpful tools and references.
Let me preface this by saying that your lawyer’s job is to provide you with legal counsel, not religious counsel. I am providing information on Shariah inheritance for educational purposes only. Talk to your Imam for religious counsel.
Also, your estate plan and your religious beliefs are deeply personal. You should not rely on my religious beliefs to guide your estate plan. You should not rely on your parents’ religious beliefs or your Imam’s religious beliefs to guide your estate plan. You should make your estate plan in accordance with your own beliefs. This means that if you want an “Islamic Will,” you should read up on Shariah and understand exactly what you want.
Here is a list of reading material on Shariah inheritance which you may find helpful:
- The Quran, in particular, verses 2:180, 4:7, 4:8, 4:9, 4:10, 4:11, 4:12, 4:33, 4:176, and 5:106.
- “Estate Planning with Islamic Inheritance Law,” a presentation by the law firm Kozusko Harris Duncan which summarizes and compares Sunni and Shia inheritance (this is a good reference for lawyers, too).
- Estate Planning for the Muslim Client, an ABA-published book by Yaser Ali and Ahmed Shaikh (this is a good reference for lawyers, too).
- Ahmed Shaikh’s website, IslamicInheritance.com, has an excellent summary of Sunni inheritance and other interesting articles.
- SunnahOnline compares the historical background of Sunni and Shia inheritance jurisprudence in this interesting article.
- IslamicWillsUSA has a summary of Sunni inheritance.
Understanding the rules of Shariah inheritance is not easy. In fact, it can be quite complex. There are differences between Sunni and Shia inheritance rules, and even within Sunni Islam, there are varying interpretations depending on the Shariah jurisprudence that is followed (e.g. Hanafi, Maliki, Shafii, Hanbali). The complexity can be intimidating. I know of at least one elder Muslim community leader who has put off making his will because he cannot find the time to “figure it out.” For simplicity, this guide will use the majority interpretations under Sunni Islam.
(1) Debts; (2) Discretionary share; (3) Fixed shares; (4) Remainder.
First, your debts must be paid from your estate. Next, the discretionary share, known as the Wasiyyah, is deducted. Then the fixed shares are calculated. Finally, anything that is left over passes to the remainder.
The fixed shares and remainder are known collectively as the Mirath. The Mirath is determined by Shariah inheritance rules and is considered mandatory. After debts are paid from your estate, the Mirath shall never be less than 2/3 of your estate and the Wasiyyah shall never be more than 1/3 of your estate.
Debts may include funeral expenses and taxes. There may also be a religious component, e.g., a Zakat obligation which you had not yet paid before you died. Paying off the debt generally does not include the mortgage on a house or any other real estate property. Instead, real estate property is usually distributed subject to the mortgage.
2. Discretionary share
The discretionary share is known as the Wasiyyah. In Muslim countries with Shariah law, the Wasiyyah is effectively the will because it is the only portion of your estate which you may bequeath at your discretion. You may give away up to 1/3 of your estate (or none at all) as you see fit, except that Shariah jurisprudence generally considers it impermissible to give anything extra to someone who receives a fixed share.
3. Fixed shares
Certain heirs will always inherit if they survive the decedent: the spouse (husband or wife), the children (sons and daughters), and the parents (father and mother).
- Your husband shall receive a 1/2 share except that if a child or a son’s descendant survives you, then your husband shall only receive a 1/4 share.
- Your wife shall receive a 1/4 share except that if a child or a son’s descendant survives you, your wife shall only receive a 1/8 share.
- Your daughter shall receive a 1/2 share except that if more than one daughter survives you, they shall equally split a 2/3 share, but if one or more sons survive you, then no child shall receive a fixed share. Instead, after calculating all fixed and discretionary shares, your children shall split what remains, with each son receiving double the share of each daughter. If you only have sons who survive you, then they shall split what remains equally. Note that sons only receive from the remainder.
- Your mother shall receive a 1/3 share except that if a child, son’s descendant, or more than one of your siblings survive you, your mother shall only receive a 1/6 share.
- Your father shall receive a 1/6 share if you are survived by at least one child or son’s descendant, otherwise, your father shall not receive a fixed share. Instead, after calculating all fixed and discretionary shares, he shall take what remains.
- A special exception applies when you are only survived by a spouse, both parents, and no more than one sibling. This could create a situation where the mother receives twice the share of the father. In this situation, Umar’s fatwa applies, and the parents do not receive a fixed share but instead take from the remainder, with the father receiving twice the share as the mother.
- There are also fixed shares for siblings, half-siblings, grandparents, however, these are contingent rules (they may or may not receive a share) and are more complex so I will not go into detail.
- Fixed shares may be reduced for oversubscription (when the total exceeds 100%). This is known as Awl.
Whatever remains passes to certain heirs (known as Asabah) determined under Shariah jurisprudence. The remainder rules can be quite complicated; there is an order of priority with blocking rules, reversions to certain fixed share holders when there is no remainder heir (known as Radd), and some special exceptions. The highest priority classes of heirs for the remainder are your children (but only if they did not take a fixed share), followed by your paternal grandchildren (children of your sons), followed by your father. I will not go into further detail, however, the overarching theme of the remainder rules is that males have a religious duty to take care of the financial well-being of the females, so males receive twice as much as females for certain classes of heirs, and to the complete exclusion of females for other classes of heirs.
Shariah share calculators
It can be difficult to calculate Shariah inheritance shares on your own. Fortunately, there are a few websites which make it easy. You simply enter your family members and these websites do the calculation for you.
- My favorite is IRTH (it provides options to select for specific jurisprudence): http://www.islamicsoftware.org/irth/v2/en/irth.html
- Another good website is the Islamic Inheritance Calculator (I like this one because it explains which rules were triggered): http://inheritance.ilmsummit.org/projects/inheritance/home.aspx
- Other online calculators which I have not reviewed but may be of interest to you:
Most Islamic scholars believe that you can give lifetime gifts to your children. Lifetime gifts to your children should be given equally.
“Treat your children fairly, treat your children fairly.”
“Fear Allah and treat your children equally.”
Some clients, after learning what Shariah inheritance entails, use lifetime gifts as a work-around because they do not like one Shariah aspect or another (such as a son receiving twice the share as a daughter). The Shariah consensus, however, is that you should not give lifetime gifts with the intention of interfering with anyone’s Islamic inheritance rights (Shariah considers this an injustice).
For this reason, lifetime gifts given on your deathbed are restricted to the discretionary share (1/3). Also, the majority view among Muslim estate planning lawyers is that property in a living trust (discussed later in this guide) should not be considered a lifetime gift because you can revoke the trust. The living trust should therefore be structured to give property in compliance with Islamic inheritance rules.
- Shariah does not consider an adopted child to be an heir. The Shariah solution is to use the discretionary share to give to the adopted child.
- Shariah considers it impermissible for a non-Muslim to inherit from the estate of a Muslim. The Shariah solution is to give a lifetime gift. Note that subjective questions of faith, if left open, can be risky and may lead to disputes among your beneficiaries. Therefore, if you want to disinherit anyone, you should clearly state in your will that such person does not receive a share. I further discuss objective versus subjective terms in the next section.
Drafting Considerations for Islamic Wills
I strongly advise keeping your will objective, not subjective. Your will should avoid clauses which state, “I hereby distribute my estate in accordance with Sunni Islam,” because this requires a religious interpretation. If you instead make an objective will, then no matter who reads the document, he or she should be able to reach the same legal conclusion as anyone else. This is important because you want to ensure your testamentary wishes are clearly understood, you want to minimize the risk that your beneficiaries dispute your estate plan, and you don’t want “Sunni Islam” or “Shariah” to be interpreted by a non-Muslim probate judge. Wills with ambiguous or subjective terms which require religious interpretation may make your beneficiaries spend thousands of dollars in legal fees to sort out your will or fight amongst themselves in Probate Court. If you want to mention religion, put it in a supplementary, non-binding letter of wishes. I describe this here.
How do you make your will objective? Math is objective and universally understood. Spell out the exact share that each beneficiary should receive based on your beneficiaries who are alive today. You can easily calculate these shares by using one of the aforementioned online tools.
You may wonder, what happens if a beneficiary dies? Wouldn’t my shares need to be recalculated? Yes. The best thing to do is update your will anytime you have a major life event, such as the birth of a child, death of a beneficiary, and marriage or divorce. Other major life events for which you may want to consider updating your will are listed here. The other thing you can do is include a clause which allows your executor to recalculate the shares in his or her sole discretion if one of the named beneficiaries predeceases you. Of course, this makes selecting a trustworthy executor especially important. Again, you can state your preference for adherence to Shariah in a supplementary, non-binding letter of wishes to help guide your executor.
I have seen some Islamic Wills attempt to describe all of the possibilities for recalculating shares under Shariah jurisprudence but this results in a convoluted document which is more likely to confuse an executor than help him or her. A complicated will can also make a dispute among beneficiaries more likely. Lastly, Shariah jurisprudence on Islamic inheritance is usually a thick book (if not a volume of books) so I do not consider condensing a Shariah jurisprudence treatise into your will to be a sound approach.
In a trust, a trustee oversees and manages property on behalf of your beneficiaries. A living trust enables you, as the creator of the trust, to add and remove property from the trust during your lifetime. Any property in the living trust at the time of your death is managed by the successor trustee for the beneficiaries. A living trust is usually combined with a will (known as a pour-over will) which “pours” probate property into the trust.
Some lawyers will try to upsell their clients on trusts. While you can usually find an attorney to draft your will for under $1,000, a trust package will typically cost between $2,000 and $4,000. There are some good reasons to consider a trust, however, I believe that a will is sufficient for the vast majority of people.
The biggest advantage of a trust is that it is not subject to the probate process, which takes time. Before the decedent’s estate can be touched, a petition must be filed with the Probate Court to appoint a personal representative (an “executor” if there is a will, or an “administrator” if there is no will). Financial institutions such as banks will not transfer funds or allow the personal representative to access an account which was owned exclusively by the decedent (assuming the decedent did not make a transfer-on-death or pay-on-death designation) until the personal representative has been issued a legal document from the Probate Court known as “letters testamentary” or “letters of administration.” In contrast, trust assets are immediately available to the trustee to manage and disburse in accordance with the trust agreement. Trusts also offer privacy from the public. Wills are filed with the Probate Court and become public records.
Some lawyers say that a trust can help your loved ones avoid probate completely. This is true in theory, however, it would require you to transfer all of your property to the trustee while you are still alive. This means a lot of upfront work (and sometimes legal fees) to change the name on your bank accounts, real estate deeds, etc. The reality is that most people will not keep up with this. If you miss something, your estate will still have to go through probate. Therefore, I believe it is more accurate to say that a trust can help you minimize probate.
Uncontested probate is relatively inexpensive in Georgia. You will typically pay somewhere between $1,500 to $3,500 to probate an ordinary estate through the appointment phase. Therefore, the financial benefit of a trust is mostly if not completely eliminated when comparing the cost to prepare a trust versus the costs of a will and probate. In other states, probate fees are calculated as a percentage of the estate so the cost of probate can be tens of thousands of dollars. A trust makes much more sense in such states.
Trusts can provide you with a lot of flexibility in your estate plan, however, this is also true for a will; you can empower your executor with similar powers as a trustee, including the power to make distribution decisions in his or her sole discretion. With that said, Trusts are better for managing assets over a long-term basis. There are also fewer opportunities for disgruntled family members to challenge a trust than a will. If your family members do not get along and you anticipate they may contest the probate process, then a trust may make more sense. Contested probate can slow down the distribution of assets and may cost thousands or even tens of thousands of dollars in additional legal fees.
I would recommend a trust if you own real estate in multiple states. By putting all of your real estate in a trust, your estate can avoid the expense of paying for probate in multiple states. I would also recommend a trust if you have beneficiaries with disabilities, special needs, or who otherwise cannot be trusted to manage their own finances (such as someone with a drug or gambling addiction).
Other Estate Planning Documents
Your will is perhaps the most important part of your estate plan, however, it only goes into effect after you die. What if you were alive but you lacked the capacity to make decisions for yourself? To prepare for this possibility, you may want to consider two additional estate planning instruments which would empower your most trusted loved ones to make decisions on your behalf. These are:
- Durable Power of Attorney. This enables you to appoint an agent to make financial decisions on your behalf. Georgia has a statutory form under O.C.G.A. § 10-6B-70.
- Healthcare Advanced Directive. This enables you to state your treatment preferences, appoint an agent to carry out or make healthcare decisions on your behalf, and nominate a person to be your guardian should one ever be needed. Georgia has a statutory form under O.C.G.A. § 31-32-4 and available in a convenient format here.
Should I use a Lawyer?
Use a Georgia Lawyer.
If you are a Georgia resident, I strongly advise that you use a Georgia lawyer for your estate plan. A Georgia lawyer knows the laws of Georgia and will ensure that your will is valid under Georgia law. If your “Islamic Will” is not valid under Georgia law, then to the Probate Court, it isn’t a will at all – it is merely a piece of paper with no legal effect.
Ideally, you should find a Georgia lawyer who focuses on estate planning. Estate planning has a lot of traps for unwary lawyers so it is best handled by a lawyer who focuses on this practice area. In my opinion, the best estate planning lawyers are those who practice probate, too. Such lawyers understand what actually happens in Probate Court (not just the theory).
Lastly, you should use a Georgia lawyer who is familiar with or willing to research Shariah inheritance so they can help you craft an estate plan which adheres to your Islamic beliefs. The Shariah rules for wills can be complicated, even for Muslims, so you should not assume that a lawyer understands Shariah inheritance just because he or she is a Muslim lawyer. Similarly, there are non-Muslim lawyers who will take the time to carefully research Shariah inheritance rules, so you should not rule out using a non-Muslim lawyer (I have seen a very respectable, Shariah-compliant estate plan drafted by a non-Muslim lawyer). If you do use a lawyer who is unfamiliar with Shariah inheritance, please forward this guide to him or her. This guide contains a summary of Shariah inheritance rules and links to resources (such as online Shariah share calculators) which will help your lawyer create an estate plan which adheres to your beliefs.
List of Georgia Lawyers who do Islamic Wills.
As a result of professional networking with other Georgia attorneys, I have learned there are a few lawyers in the Atlanta area who are familiar with Shariah inheritance and are happy to prepare Islamic Wills for their clients. I have assembled a small list of these lawyers. Please note that this list is for informational purposes only and does not represent a recommendation or a referral to any particular outside attorney.
- Mahmoud Khatib, Esq. (that’s me!) of Khatib Law LLC. Contact: firstname.lastname@example.org | 404-494-0495 | 2511 Carolyn Dr SE, Smyrna, GA 30080.
- Robert Bexley, Esq. of Bexley & DeLoach, LLC. Robert has helped over 25 families prepare Islamic Wills and gave a lecture on Islamic estate planning at the Medina Institute in Duluth, Georgia. Contact: email@example.com | 770-689-6006 | 59 Scenic Hwy. S, Lawrenceville, GA 30046.
- Ibrahim Awad, Esq. of The Awad Law Firm, P.C. Contact: firstname.lastname@example.org | 706-890-0000 | 66 Lenox Pointe NE, Atlanta, GA 30324.
- Bukhari Nuriddin, Esq. of The Nuriddin Law Company, P.C. Contact: email@example.com | 404-480-0217 | 6075 Barfield Road Ne, Sandy Springs, GA 30328.
If You Don’t Use a Georgia Lawyer.
Although I strongly recommend that you use a Georgia lawyer, I imagine some of you may choose to ignore my advice. If so, here are some additional words of caution:
- Do not use a non-lawyer. I once saw a paralegal advertise on social media that she could draft wills. Paralegals and other non-lawyers are not licensed to practice law and cannot give you legal advice – if they do, they are breaking the law by committing unauthorized practice of law (UPL) and may be found guilty of a criminal misdemeanor.
- Do not use your Imam. If your Imam is not a heart surgeon, you should not use him to perform heart surgery. Similarly, if your Imam is not a lawyer, you should not use him to draft your will. You can certainly consult him about your religious questions on Shariah, however, he should have no involvement in creating your will (this would be UPL).
- Do not rely on the legal advice of an out-of-state lawyer. Laws differ from state to state, and only a Georgia lawyer can give you advice on Georgia law.
- As an aside: I once attended an Islamic Will seminar hosted at Roswell Community Masjid. which was highly popular – the masjid was metaphorically bursting at the seams and many attendees were forced to stand. The seminar was given by a visiting out-of-state Muslim lawyer who was very well-versed on Shariah-compliant estate planning and who published an excellent book on the topic. I saw no reason to doubt he was a stellar lawyer in his state. However, he was not a Georgia lawyer. Responding to a question from the audience, the out-of-state lawyer inaccurately stated that you cannot disinherit your spouse or children and they would be eligible to receive a minimum “elective share” of your estate. This “elective share” concept may be true for most states but it does not exist under Georgia law. Instead, Georgia law allows your spouse and minor children to petition for a Year’s Support. The out-of-state lawyer gave an excellent seminar overall and afterwards he connected many Georgia Muslims who needed estate planning help with local Georgia Muslim lawyers (which is exactly how this should be handled).
- Use caution with DIY products. Yes, it is possible to draft a decent will, trust, power of attorney, advanced directive for healthcare, etc. on your own using an online DIY (do-it-yourself) estate planning product. However, these DIY websites do not provide legal advice and are not a substitute for an attorney. If you make a mistake, your estate plan might be invalid or it may cost your beneficiaries thousands of dollars in legal fees to hire an attorney and fix your error. This isn’t just a theoretical problem – I have seen this happen. If you do go the DIY route, please understand that you do so at your own risk. If you do draft your will on your own, don’t forget that you need to make it legally valid by carefully adhering to Georgia’s execution formalities. You may also want to read up on Georgia law (especially O.C.G.A. Title 53). The official Georgia code is available here and unofficially but conveniently here.
- Do not pay for a DIY product. Many websites will try to sell you a DIY estate planning product. Lawyers refer to these websites as form mills. The business model for form mills is almost always the same: Provide the customer with a form and use software to assist the client with filling in the blanks. These websites have all the previously described risks of DIY products and yet have the audacity to charge you money. Do not pay a form mill! You are not getting legal counsel; you are getting ripped off. Notable examples of Shariah and non-Shariah form mills include MyWassiyah (“MyWassiyah and its affiliate entities are not a law firm, do not provide any legal advice, and are not a substitute for attorney’s advice.”), Shariawiz (“Shariawiz is not a law firm… and does not provide any legal, tax or accounting advice. Shariawiz provides access to software and self-help materials… The services are not substitutes for the advice of an attorney…”), MyIslamicWill (“MyIslamicWill is not a law firm or a substitute for an attorney or law firm.”), (LegalZoom (“LegalZoom is not a law firm and may not perform services performed by an attorney. LegalZoom, its Services, and its forms or templates are not a substitute for the advice or services of an attorney.”), and Rocket Lawyer (“Rocket Lawyer is not a law firm or a substitute for an attorney or law firm.”).
- Free DIY resources. If you do decide to go the DIY route, there are online resources which do virtually the same thing as the paid DIY products but are completely free.
- The best free DIY Islamic Will that I have seen is https://muslim.estate
- The website of Masjid Al-Farooq has a helpful Islamic Will seminar on its website here, featuring Georgia Muslim lawyer Ed Mitchell of CAIR-Georgia. It also has a free will template you can download.
You made it to the end! I hope you found this guide helpful. If you have any questions or comments, I welcome you to email me: firstname.lastname@example.org
If you are interested in hiring a Georgia Muslim lawyer to prepare your estate plan, I am happy to help! My pricing for estate planning is available on my website here.