مَا حَقُّ امْرِئٍ مُسْلِمٍ لَهُ شَىْءٌ يُرِيدُ أَنْ يُوصِيَ فِيهِ يَبِيتُ لَيْلَتَيْنِ إِلاَّ وَوَصِيَّتُهُ مَكْتُوبَةٌ عِنْدَهُ

The Prophet said: “It is the duty of a Muslim who has anything to be given as a bequest not to leave it for two nights without having his will written down for it.” (Sahih Muslim #1627a)

What is a Will?

A will is a legal document that specifies what happens to your possessions when you die. It can also include who takes care of your children and how you should be buried. If you die without a will (called ‘intestate’), state laws may determine what happens to your wealth, children, and body. Moreover, your heirs may waste a lot of time and money trying to handle these things without a will.

Do I Need a Will?

Wills are not only for rich people. The average person does not consider making a will until they are almost fifty years old. But A Muslim should make a will immediately to ensure that Allah’s rules apply. Remember that both husband and wife need separate wills.

What is an Islamic-Will?

The main difference between a regular will and an Islamic one is that you must follow the rules that Islam has prescribed. You don’t get to pick how much each family member gets from your money. The shares have been decided by Allah. You only get to pick which non-heirs receive some of your money (known as a bequest, or wasiyyah).

How Do I Make a Will?

There are three ways to make an Islamic-will:

You can write your own will to save time and money.
You can use an online template to ensure your will complies with your state requirements. These requirements change from year to year.
If you have quite a lot of money (over $100,000), you should use an attorney to create a ‘trust’ to ensure less family conflict, avoid probate fees, and minimize gift and estate taxes. This may be costly but is worth the time and money. It may even be cheaper to create a ‘trust’ than to pay probate fees even if you are not that wealthy. You should support Muslim businesses by considering a Muslim attorney who knows Islamic inheritance law such as this one or this one.

Steps to Make a Will

Whichever method you choose, consider the following steps:

Step 1: Identify what assets you own. This includes bank accounts, valuables in a safe or safe deposit box, stocks, and other investments. Also identify any debts you owe.

Remember that pensions and other investments designated as “transfer on death” cannot be included in your will since they have a specific beneficiary who will receive the proceeds. Unless you can override this, it will not transfer to your heirs the way you want it to.
Remember that a probate court may override part of your will if it violates community property laws in your state.

Step 2: Decide if you want to bequest money to non-heirs. Specify a percentage or amount to each person. It cannot exceed 33% of all you own because the Prophet forbade giving more than that, since it would deprive your heirs from their rightful amount.

For example, you can give 5% to your local mosque, 10% to California Islamic University, and 7% to your cousin who was always nice to you.

Step 3: Specify which close relatives are alive and how much each will get, according to Islamic Law. Remember, you do not get to pick how much each family member gets. This was decided by Allah.

For example, if you have both parents and two children alive, your father gets 1/6^th, mother gets 1/6^th, son gets 4/9^th, and daughter gets 2/9^th. You can calculate the shares for your specific case by using this site or this app.
You can specify if you want a specific person to get a particular asset. For example, you can say that your daughter will receive your jewelry as part of her share and your son will receive your car and cash as part of his share. This will help them so they do not have to be partners in ownership or sell those assets.

Step 4: Consider adding clauses so you do not need to update your will when a beneficiary dies or is added.

You might add in your will: “If any of the listed beneficiaries die or another child which might inherit is born, the distribution be recalculated according to the rules of mainstream Islamic Law as calculated by scholars at California Islamic University.”

Step 5: Designate a guardian for your minor children so they are raised with an Islamic lifestyle and values.

Step 6: Include directions how and where you want to be buried.

Step 7: Appoint an executor, or two. This person ensures your will is followed and your assets are distributed properly. Often a spouse, adult child, or close friend serves this purpose. If your assets are complex, you should choose someone who has a background in business or law. A probate court usually supervises the executor to ensure they do their job correctly.

Step 8: Sign your will in the presence of two adult witnesses. In some states a will must be notarized.

Step 9: Store the will safely where it can be found by your heirs or executor. Let them know where to find it and leave them a reminder somewhere. Do not lock it where they will not have access to it without a court order, such as a safe deposit box. Provide a copy to your executor if you trust them.

Shaykh Mustafa Umar

Appendix: Sample Will

Below is a sample will which you may use and modify for your own purposes (change the parts in bold with your personal information and calculations):

Will of John Doe

Part 1. Personal Information

I, John Doe, a resident of the State of California, declare that this is my will.

Part 2. Revocation of Previous Wills

I revoke all wills and codicils that I have previously made.

Part 3. Marital Status

I am married to Jane Doe.

Part 4. Children

I have the following children now living:

Johnny Doe DOB: 4/10/2013

Jamie Doe DOB: 6/19/2014

Part 5. Disposition of Property

A beneficiary must survive me for at least one minute to receive property under this will. As used in this will, the phrase “survive me” means to be alive or in existence as an organization one minute after my death.

My entire estate is everything I own at my death that is subject to this will.

I leave my entire estate to Jane Doe, Johnny Doe, and Jamie Doe in the following shares: Jane Doe shall receive a 1/8^th share; Johnny Doe shall receive a 7/12^th share; Jamie Doe shall receive a 7/24^th share.

The estate division is according to the rules established by mainstream Islamic Law. If there is a change in circumstances through marriage, divorce, death, or childbirth, the shares and heirs will be decided by consulting the scholars at the Islamic Center of Irvine.

All personal and real property that I leave in this will shall pass subject to any encumbrances or liens placed on the property as security for the repayment of a loan or debt.

Part 6. Executor

I choose not to name an executor.

Part 7. Payment of Debts

Except for liens and encumbrances placed on property as security for the repayment of a loan or debt, I direct that all debts and expenses owed by my estate be paid in the manner provided for by the laws of the state of California.

Part 8. Payment of Taxes

I direct that all estate taxes assessed against property in my estate or against my beneficiaries be paid using the following asset: cash.

Part 9. Severability

If a court invalidates any provision of this will, that shall not affect other provisions that can be given effect without the invalid provision.

Signature

I, _________________________, the testator, sign my name to this document, this ____________ day of ______________, ________, at _______________________________________ (city or county, and state).

I declare that I sign and execute this document as my last will, that I sign it willingly and that I execute it as my free and voluntary act. I declare that I am of the age of majority or otherwise legally empowered to make a will, and under no constraint or undue influence.

Signature:

Witnesses

We, the witnesses, sign our names to this document, and declare that the testator willingly signed and executed this document as the testator’s last will.

In the presence of the testator, and in the presence of each other, we sign this will as witnesses to the testator’s signing.

To the best of our knowledge, the testator is of the age of majority or otherwise legally empowered to make a will, is of sound mind and is under no constraint or undue influence.

We declare under penalty of perjury that the foregoing is true and correct, this ____________ day of ______________, ________, at _______________________________________ (city or county, and state).

First Witness

Sign your name: _____________________ Print your name:

Address:

Phone: _______________ Email: ______________

Second Witness

Sign your name: _____________________ Print your name:

Address:

Phone: _______________ Email: ______________

References

https://www.nolo.com/legal-encyclopedia/marriage-property-ownership-who-owns-what-29841.html

https://www.wikihow.com/Write-a-Will

https://www.wikihow.com/Write-Your-Own-Last-Will-and-Testament

https://www.wikihow.com/Create-a-Will

https://www.investopedia.com/articles/pf/08/what-is-a-will.asp

https://www.nolo.com/legal-encyclopedia/california-probate-an-overview.html

https://www.legalzoom.com/articles/10-tips-to-avoid-probate