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Fatwa CenterDistinction must be made between a bequest and a gift in division of inheritance
Question
Assalaamu ‘Alaykum; Please calculate the inheritance according to the following information -Does the deceased have male relatives who are entitled to inherit: (A son) Number 4 -Does the deceased have female relatives who are entitled to inherit : (A daughter) Number 4 - The will which the deceased left behind and that is related to his inheritance is: my father distributed his property during his life as follows. One house should be divided among three brothers,and the shops attached to that house should be given to his three daughters. The second house which has two floors-ground floor should be divided between his youngest son and wife and the first floor should be given to this older daughter who helped him financially to build that floor. My father as well as mother passed away and we maintained the property and collected rent and distributed according to his will. Now, since everybody is far away, we decided to sell and one of my brother wants to buy it. How should we distribute the money out of the sale
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger.
Apparently, the deceased father left behind the heirs mentioned in the question as well as a wife (their mother) who passed away after him (before the distribution of the deceased father's estate). If this is the case, the mother is entitled to her due share of her husband's estate (your father). She should have been included among the female heirs and her share would later be distributed among her own heirs. However, if she passed away leaving no other heirs than her children (you and your siblings), then there would be no need to recalculate the inheritance. This case is known as shortening the Munaasakhaat (plural of Munaasakhah which means redistribution of the estate due to the death of one or more heirs after the first deceased person, in which case the two distributions can be at once).
We will base our answer on that assumption – that your mother passed away leaving behind her deceased husband’s heirs only. In this case, if the father left behind only those heirs mentioned in the question (four sons and four daughters) and no other eligible heirs, then the estate is to be divided among the deceased’s children by virtue of Ta‘seeb (i.e. by virtue of having a paternal relation with the deceased and not having an allotted share, so they get what is left after the allotted shares have been distributed); the male gets double the share of the female as Allaah The Exalted says (what means): {Allaah instructs you concerning your children: for the male, what is equal to the share of two females.} [Quran 4:11]
So, the estate should be divided into twelve shares. Each son gets two shares and each daughter gets one share.
In relation to the bequest, if you mean that the deceased has instructed how his property should be distributed as a bequest to be executed after his death and not as a transfer of ownership of the property to those heirs in his lifetime, then this is considered a bequest and not a gift as per the Sharee‘ah, and it is a bequest in favor of an heir. We have previously underlined that a bequest in favor of an heir is invalid and is not to be executed unless approved by all the other heirs. If any of the heirs objects to the execution of this bequest, then it must not be executed as far as that heir's share of the inheritance is concerned. He must be given his due share of the inheritance and is entitled to common ownership of the unsold properties in proportion to his share of the estate and he is not obliged to execute the bequest. For more benefit, please refer to Fatwa 26630.
Therefore, the first house, the stores, the second house, and all the rest of the apartments are to be included in the estate to be distributed among all the eligible heirs according to the Islamic inheritance laws and the beneficiaries of the bequest are not entitled to deny other heirs their due shares under the bequest. The rest of the properties will be divided among the heirs according to the Islamic inheritance laws. If these properties were sold, the money exchanged for it will be divided among the heirs according to the inheritance laws as stated in the beginning of the answer.
However, if you mean that the deceased gave those heirs the properties as gifts and they accepted and took possession of them, with each exercising full ownership rights over the properties given to them as a gift, then this is regarded as a valid Hibah agreement (gift) according to the Sharee‘ah. If these properties were sold, each of those heirs is entitled to the compensation in the amount of what they received as a gift, and the rent from the three stores should be given to the three daughters who were given those stores as gifts.
Allaah Knows best.
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