Maliki Fiqh QA

Islamic Questions & Answers according to the Maliki School

Transferring Property to Children in One’s Lifetime – Shaykh Rami Nour

Answered by Shaykh Rami Nsour

Question: My parents own a home. They would like to transfer the entire home to me, their only son. However, I am close to my sisters and feel it is best if the home is transferred to all 3 of us.

According to Islamic law, what is the distribution or allocation method for this property to all 3 of us (my 2 sisters and myself)? Also why is it not equal distribution, so 1/3rd each?

So, for example, if the value of the property is £300,000, if £100,000 is not allocated to each of us 3 children, then by what proportion is the allocation made?

Also, what happens in the event of sale of the property — how are the proceeds supposed to be distributed among the 3 of us?

I also don’t understand if women have equal rights in Islam, why isn’t the allocation fair and equal — why less for women? Is it because they are likely to get married, and therefore take a share of their husband’s property or savings?

Answer:

Bequests

To begin, it is important to understand the difference between a bequest (wasiyah) and a transfer of wealth (hadiya or ‘atiyya). A bequest is where a person says, “Upon my death, give such and such amount to so and so.” Once the person passes away, there is an assessment to ensure that no debts are owed, that the total bequests do not exceed one third of the deceased person’s total wealth, and then to see if that person is a suitable recipient.

One of the matters that would cause a person to not be able to receive a bequest is if they are an inheritor, such as a spouse or child. The Messenger of Allah (peace and blessings be upon him said), “There is no bequest to an inheritor” (Tirmidhi). So, if a person is guaranteed a portion of the inheritance, such as a son or a daughter, they would not be able to receive a bequest. Again, a bequest is the transfer of wealth after the death of a person and it comes from their estate.

Transfers of wealth

While a person is alive and not on their death bed, technically they are free to give away any portion of their wealth to whoever they would like. Once a person is on their death bed, they are no longer allowed to give away their wealth since that is akin to giving away the right of the inheritors. So, if a person’s parents are not on their death bed, they can give their wealth to one child over the other.

The Sunna in Giving

Although this is their right, it would be sunna for them to be equal in their distribution of wealth as the Messenger of Allah (peace and blessings be upon him) said, “Treat your children equally,treat your children equally, treat your children equally! ” (Ahmed and others). The Messenger of Allah (peace and blessings be upon him) also said, “Be equal in gifts to your children, and if I were to give more to one I would have chosen the women” (Bayhaqi and Tabarani).

Equal Rights in Islam

In regards to your question about equal rights for women and why they receive a lower share than men, one must understand that there are only certain situations where a woman would get less than a man. If the deceased left only one son and one daughter, for example, then the son would have two shares of the wealth and the daughter would have one.

One of the wisdom in this can be seen when we realize that financial obligations of a family are upon the man and not the woman. So, the son will take his two shares and support his wife and children whereas the daughters will take her one share and does not have to spend it on her husband and children. Another thing to realize is that there are situations where a woman would get more than the men, such as in the case where the deceased left a daughter and his brothers (the daughter’s paternal uncles). The daughter would get one half of the wealth and the brothers, no matter how many would split the remainder.

Your situation

Your parents have the right to give you their house without including the daughters. If it will not anger you parents, you can suggest that they distribute it to you and your sisters. If they do not agree, then what you can do is then give a portion of your wealth to your sisters once the wealth is yours unless your parents had stipulated that you do not give the house to anyone.

I would suggest that you contact a local scholar to help you work through your situation and do not rely on this reply alone. There are other opinions in the books of fiqh and your situation is a complex one dealing with inheritance, gifts and rights of parents (birr al walidayn).

And Allah knows best.

source : http://seekersguidance.org/ans-blog/2013/05/07/transferring-property-to-children-in-ones-lifetime/

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