This pecking order means that you may wish to make bequests out of your one third to distant relatives who may not otherwise inherit from you because they will be excluded by the closest relatives from automatically receiving shares.
It is prudent to have what is called a residuary clause dealing with what should happen to the estate if there are no surviving relatives – in which case the estate can be left to one or more charities (and if more than one, then in what proportions).
Under Shari‘a, your estate would go to the bayt al-mal to be spent on social welfare, but until your community has a bayt al-mal, a charity concerned with social welfare, like Islamic Aid, is the next best option. You may also wish to have a clause in which you pass on a last message to your loved ones.
5. Choose your executor(s) wisely
You will need to choose up to four people to carry out the wishes expressed in your Will. Executors can also be beneficiaries in your Will. If you are choosing friends or relatives, make sure they are willing to accept what can be a lengthy and time consuming responsibility. If you are choosing lawyers, remember that they will probably expect to be paid for their services from your estate. The more complicated your affairs, the more prudent it is to choose a specialist lawyer. If you intend to die like the Prophet, may Allah bless him and grant him peace, possessing nothing, then there will be no need for a lawyer!
If your executors do not know how to calculate the Qur’anic shares, they can either find an ‘alim who has this knowledge to assist them, or they can use the software at http://www.islamicsoftware.org/irth.html which does the calculation for you. This software is also useful if you would like to know, “Who would inherit what, if I were to die tomorrow?”
There is no combination of relatives for which it is not possible to calculate their Qur’anic shares – so a properly drafted Islamic Will should never fail for uncertainty.
6. Choose a guardian for children
If it is possible that you may have children under the age of 18 when you die, you should appoint a guardian to look after them in the unlikely event of both you and your spouse dying while they are still minors. This point is particularly significant for those who have non-Muslim relatives and want their children to be brought up as Muslims.
There should also be a clause dealing with how any minors’ shares should be held on trust and invested and expended for the children’s maintenance, education or benefit. Most Muslims will want to stipulate that any investment made should not involve usury, since this was expressly forbidden by all of the Prophets, including Moses, Jesus and Muhammad, blessings and peace be on them.
7. Choose your witnesses
Ideally, choose two trustworthy Muslim men to witness the signing of your Will. If this is not possible, then two non-Muslim men may be taken as witnesses. Women may also act as witnesses. Under Shari‘a, two women may act as witnesses instead of one man. For the purposes of English law one woman may act as a witness instead of one man. # Remember: anyone who will benefit from your Will cannot be taken as a witness. If this does happen, he or she will not be permitted to inherit from you.
8. Keep your Will safe
Once you have made your Will and it has been signed and witnessed, store it in a safe place or with your solicitor or a trustworthy relative or friend. Make sure that your executor(s) are informed where the original Will is being kept and keep a photocopy for your own records.
9. Keep your Will up-to-date
Review your Will on a regular basis, since changing circumstances – especially your marital situation (marriage, divorce or re-marriage) may affect its validity. # If there are significant changes of circumstance, it may become necessary to make a new Will, but for minor changes you may just require a Codicil – which makes an addition or alteration to your existing Will.
So if you’ve already made a Will, but would like, for example, to include a bequest to charity, the process is fairly straightforward – and can be drawn up by a solicitor. # Remember: Do not try to alter your Will by crossing out or adding words. If you do this, your Will may be rendered invalid in the eyes of the law, so if you then die without having made a new Will, it will be as if you had never made a Will at all.
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