BOOK L: INHERITANCE

Table of Contents:

L1.0 BEQUESTS (WASIYYA)

(n: Sections L1, L2, and L3 have been moved here from their original place at the end of last book. They deal with bequests, meaning testamentary disposition of one's property (wasiyya) such as to say,"I bequeath such and such to So-and-so", while sections L4 through L10 form the original content of book L, and deal with estate division (irth).)

(A: The difference between bequests (wasiyya) and estate division (irth) is that a bequest is the act of a living person disposing of his own property, even if it is to be implemented after his death, while estate division occurs after his death according to the Koranic rules of inheritance. Because a bequest is the act of a living person with his own money, it is legally valid for a Muslim to bequeath up to a third of his property to a non-Muslim (dis:l3.13(1))and similarly valid for a non-Muslim to bequeath his property to a Muslim, Nawawi says:

"A bequest is legally valid from any legally responsible free person, even if non-Muslim (Mughni al- muhtaj ila ma'rifa ma'ani alfaz al-Minhaj (y73),3.39).

But it is invalid and unlawful for a non-Muslim to inherit property through estate division from a Muslim (dis: L5.2), or vice versa. The determining factor in the permissibiity of a Muslim and non- Muslim inheriting from each other is whether the property comes by way of a bequest (wasiyya) made by the deceased before his death, in which case it is permissible, or whether it comes by way of estate division (irth) made after the deceased's death according to the Koranic rules of inheritance, in which case the difference between their respective religions prevents it.)

(O: Our author only mentions bequests at this point (n:at the end of book k, as mentioned above) before estate division because of the fact that a person first makes bequests, then dies, and then the estate is divided. The scriptural basis for the validity of bequests, prior to the consensus of scholars is the word of Allah Most High,

"....after any bequest which has been made, and after any debts" (Koran 4:12).)

(n: Given persons X (al-musi), Y (al-wasiyy), and Z (al-musa lahu) (A:where X has made provision in his will for Z to receive a bequest (wasiyya) of a sum of money, and X appoint Y as his executor to make sure this is done).)

L1.1 A bequest made by X is valid if he is legally responsible (mukallaf,def:c8.1), even if he is a spendthrift.

L1.2 The discussion is in two parts (n: namely, section L2, on X's appointing Y as the executor, and Section L3, on the bequest itself).

L2.0 THE BEQUESTS EXECUTOR

(O: Appointing an executor means for X to put Y in charge of his property and young children, bequests, paying his debts, or collecting his property from others. The verbal form is, "I appoint So- and-so to execute such and such a bequest.")

L2.1 The necessary conditions for the validity of X appointing Y as the executor of his bequest are that Y be:

1. legally responsible (mukallaf, def:c8.1);
2. upright (def: o24.4) (O: meaning the uprightness of Islam, as it is not valid under any circumstances for Y to be a non-Muslim if X us a Muslim);
3. and that Y have the knowledge and capacity to properly undertake the bequest.

L2.2 The following examples of X appointing Y as the executor of his bequest are legally valid:

1. when X appoints Y as his executor at a time when Y is not legally eligible to be it, but by the time of X's death, Y is eligible (O: by fulfilling all the above (L2.1)conditions);
2. when X appoints a group of two or more people as his executors (O: and if he does so, then if he does not stipulate that each of them must manager their respective role, but rather says that they are to manage the legacy collectively, or does not say anything, then they must cooperate and not manager the work, maintenance, and dealings as separate individuals. Cooperate in such a case means that their acts proceed from the decision of the group, and does not mean, for example, that when they buy something they must all conduct the transaction together. Rather, if all agree to permit something, it is sufficient for one of them to take the matter in hand and carry it out);
3. when X appoints (n: for example,) W, and then after him, Y(N: or vice versa) (O: saying, "I appoint W as executor until Y comes, but when Y arrives, he is the executor, "or "I make W executor for one year, and when it has passed, then Y is the executor");
4. or when X appoints Y as executor, authorizing him to appoint in turn whomever he chooses as executor of the bequest (O: if the person fulfills the conditions (L2.1)).

L2.3 X's appointing Y as the executor of his bequest is not legally effective until Y accepts this responsibility after X's death, even if this acceptance is not immediately thereafter.

Both X and Y are entitled to cancel the appointment of Y as executor of the bequest whenever they wish (O: unless (A: after X's death) Y feels it almost certain that the property will be lost through a wrongdoer appropriating it, in which case Y may not withdraw as executor, meaning it is unlawful for him to do so. In such a case, if Y withdraws of his own choice, he is not thereby free of having to execute the bequest, though he is not obliged to continue therein without remuneration, but does so for a fee).

L2.4 It is not legally valid to appoint an executor unless the bequest consists of some good work or pious act such as paying off a debt, making up a hajj (dis:j1.9), looking after the welfare of one's children, and so forth (O: excluding actions that are not dispositions of property, such as marrying off the children) (A: and excluding acts of disobedience such as those mentioned above at k30.6(6)).

L2.5 When X's father is still alive and fit for guardianship (def:m13.2), X may not appoint y to look after the welfare of his children.

L3.0 THE BEQUEST

L3.1 X may devote one-third or less of his financial resources to bequests, but not more than this, one- third meaning a third of his property as it stands at the time of his death (O: not before or afterwards).

(A: If there are no Muslim heirs, or if the existent Muslim heirs do not deserve the whole estate, such as when the sole eligible estate division heir is a husband or wife (dis:L6.3-4), then the Hanafi school permits disposing of more than a third of one's property in bequests (dis:w44), more than a third meaning everything in excess what one's eligible heirs deserve by estate division (irth).) (n: The ruling in the Shafi'i school is that such an excess may not be disposed of in bequests, but rather is given to the Muslim common fund (Bayt al-mal) if it exists, as mentioned below (L3.3(O:) and L9.1).)

L3.2 If X's heirs (def: L4.4 are not poor, it is recommended for X to devote a full one-third to bequests, but if not (O: i.e. if his heirs are not well off, as when they do not have any money at all, or have some, but not enough for their expenses, and the other two-thirds (A: of the estate that constitutes their obligatory shares) which they deserve is insufficient), then it is not recommended for X to devote a full one-third to bequests.

L3.3 If X wills more than one-third in bequests, then his dispositions are not valid regarding the portion in excess of one-third when he has no one (O: in particular) to lawfully inherit the rest (A: who, if they existed, could give permission for the excess, as discussed below). (O: In cases where there are no heirs, the Muslim people have better right to X's property, and no one may waive this right.)

Nor are X's bequests in excess of one-third valid when he has an heir, but the heir refuses to authorize the excess,though if the heir (N: or group of heirs unanimously) permits it, such a bequest is valid. It is not valid for the heir to authorize the excess or refuse to do so until after X's death.

L3.4 Charitable expenditures made by X in his will (O: such as an endowment (waqf, def:k30), gift, and so forth) are considered as part of the bequeathable one-third.

L3.5 Bequests concerning obligatory expenditures are also considered from the bequeathable one- third, provided that X has stipulated that they come from it. (O: Though if the bequeathable third does not cover these (A: despite X having stipulated that they come from it), then the excess is paid from the remaining two-thirds. Obligatory expenditures include such things as paying debts making up the hajj(dis:j1.9), paying zakat (A: for any year that the deceased neglected to pay it), expiations, and the fulfillment of vows that would have been binding had X been well.) But if X did not stipulate (O: that these obligatory expenditures come from the bequeathable one-third), then they come directly from the other two-thirds.

L3.6 Current charitable dispositions of property made by X during his life, such as establishing an endowment (waqf, k30), giving a gift or others, are considered as personal expenditures of his own money (O: and he could spend it all without any objection) if made while he was in sound health. But if X makes such current dispositions under any of the following circumstances, when these are linked with his death,then the dispositions are considered as having come from the bequeathable one-third:

1. in the final illness which brought about X's death:
2. in military combat;
3. while travelling on rough seas in a storm;
4. as a final request before being killed;
5. or (O: if female) X dies while giving birth, or afterwards before separation of the placenta.

If otherwise, (O: meaning if the current charitable disposition was not made under any of the above circumstances, or was, but the circumstance was not linked with X's death) then the disposition is not taken from the bequeathable one-third.

L3.7 (N: We distinguish between the above-mentioned current dispositions (n: such as gifts, endowments, and donations), and between bequests by noting that current dispositions are effective before X's death, while bequests are effective after. Current dispositions are normally implemented even if X uses up all his money, while bequests-unless X's heirs unanimously agree to allow otherwise-are restricted to one-third of the estate. An exception to permitting current dispositions to amount to as much of X's property as he wishes is when they are effected during his death illness (n: or other L3.6 circumstance), in which case they are limited to one-third of the estate, just as bequests are.)

If one-third of the estate does not cover the cost of the (N: current) dispositions which X made during his (N: final) illness, then (O: if these have been given in some order) they are implemented first thing first, then second, then third, and so on.

(N: Thus, if during his death illness, X said to his three friends P, Q, and R, "I give P a gift of 100 dinars, Q 100 dinars, and R 100 dinars, "but it turns that X's total estate is only 600 dinars, then his gifts to P and Q are valid, but we take back his gift to R, which is not valid because it exceeds the 200 dinars that is a third of the 600 dinars constituting the whole estate. This is what is meant by implementing them in order.)

L3.8 The bequeathable one-third of the estate is divided (O: proportionally (N: if shares vary)) between all the recipients X designates when:

1. (N: in cases of death illness current dispositions such as gifts) X did not state them in any particular order (N: such as by saying (n: in a situation like the above example) to P, Q, and R, "I give you each a hundred dinars," in which case the bequeathable one-third is divided between them):
2. or (N: in cases where X has explicity made bequests) the bequeathable one-third will not cover all the bequests, whether they were made separately or not.

(N: All of the above (L3.6-8) only holds if the heirs do not agree to permit more than one-third of the estate for bequests or current dispositions, since if they unanimously agree, it may exceed a third, even if it takes the whole estate.)

L3.9 Bequests made to nonspecific individuals such as the poor are effective when X dies. (O: They own the property without the fact of ownership depending on their accepting it.)

L3.10 When X bequeaths something to Z, a particular individual, the ownership of the article bequeathed is suspended, meaning that if Z accepts it after X's death, even if after some time has passed, then Z has owned it from the moment X died; but if Z declines to accept it, then X's heirs own it. If Z accepts it, but then refuses it before having taken possession of it (def:k7.3) this cancels his ownership of it, though if he refuses after having taken possession of it, it does not cancel his ownership (O: as his refusal is meaningless in such a case).

L3.11 It is permissible to make the implementation of a bequest subject to a condition, whether the condition is something occuring before X's death (O: such as his saying, "If Z enters So-and-so's house, I bequeath to him such and such of my property,") or after (O: such as his saying, "If Z enters So-and- so's house after my death, I bequeath to him such and such of my property").

THINGS WHICH MAY BE BEQUEATHED

L3.12 It is permissible to bequeath any of the following:

1. the right to utilize something (O: while not bequeathing the actual thing);
2. particular things;
3. something not yet existent, such as "what this tree will bear";
4. something not determinately known (O: whether it be an unknown thing (A: such as "the contents of this box"), or something unknown in amount);
5. something undeliverable (non-k2.4);
6. something not currently owned (O: at the time the bequest is made, but which X owns at the time of his death);
7. or something impure (najasa, def:e14.1) that has a lawful use, such as a (O: trained hunting) dog, or oil contaminated with impurity; though not something impure that is without lawful use, such as wine or pigs.

THOSE TO WHOM BEQUESTS ARE VALID

L3.13 It is permissible for X to bequeath something to Z even if Z is:

1. a non-Muslim at war with Muslims (A: and with still better right when Z is an ordinary non- Muslim);
2. a Jewish or Christian subject of the Islamic state;
3. an apostate from Islam;
4. the person who kills X;
5. X's heir (def: L4.4), provided X's other heirs permit him to receive it (O: though if they do not, then the bequest is not carried out);
6. or to a person yet unborn, in which case the bequest is paid to the person (O: i.e. guardian) who knows of the unborn's existence at the time X makes the bequest, provided that the child is either born alive within six months of the time the bequest is made, or is born alive more than six months and less than four years after the bequest is made, during which time the mother has had no husband (O: from whom the pregnancy could have resulted).

CANCELING ONE'S BEQUESTS

L3.14 If X makes some article a bequest but then changes his mind, his taking it back is valid, annulling his bequest. X's doing any of the following is also considered taking it back (A: and cancels the bequest):

1. X's loss of ownership (O: of the bequeathed article) such as by sale or gift;
2. X's subjecting the article to loss of ownership by putting it up as collateral, offering it for sale, or making another bequest that stipulates that it be sold;
3. or when the name of the article changes, such as wheat being ground into flour, flour made into dough, yarn woven into fabric, or when X mixes a particular article with other goods.

L3.15 If Z dies before X, the X's bequest to him is invalid. If Z dies after X but before Z accepts the bequest, then Z's heirs may accept or reject it.

L4.0 ESTATE DIVISION (IRTH)

(O: Estate division refers to the share allotted to each heir by Sacred Law. The scriptural basis for estate division, prior to the consensus of scholars, consists of the Koranic verses on inheritance (Koran 4;11-2,4:176) and hadiths such as the one related by Bukhari and Muslim that the Prophet (Allah bless him and give him peace) said,

"Give the obligatory shares of the estate to those who deserve them, and the rest belongs to the closest male to the deceased."

Encouragement to master the knowledge of estate division comes from such hadiths as the one from Ibn Mas'ud (Allah be well pleased with him) that the Prophet (Allah bless him and give him peace) said,

"Learn estate division and teach it to people, for I am someone who will be taken from you, and this knowledge will be taken from you and calamities will ensure, until two men will one day disagree about the obligatory apportionment and will not find anyone to judge between them.")

HOW TO WORK AN ESTATE DIVISION PROBLEM

L4.1 (n: To work an estate division problem, one should:

1. determine the amount of the deceased's estate after deducting the L4.2-3 expenses;
2. make a list showing which of the deceased's heirs mentioned at L4.4 exist;
3. eliminate from the list any heirs with preventives L5.1-4;
4. on a sheet of paper, copy the parenthesized introductory paragraph ("N: summary of ________'s share,") for every heir that exists, such as the deceased's:
   1. husband (dis: L6.3);
   2. wife (L6.4);
   3. father (L6.5);
   4. mother (L6.6);
   5. daughter (L6.7);

      (as mentioned at L6.8, the shares of the above-named family members are not eliminated by anyone,though the shares of those named below may be eliminated by the existence of certain other heirs)
       

   6. son's daughter (L6.9);
   7. full sister (L6.10);
   8. half sister from the same father (L6.11);
   9. grandfather (father's father only) (L6.13);
   10. grandmother (L6.18)
   11. half brother or half sister from the same mother (L6.20);
   12. and then the others (sons and so forth) mentioned at L6.22;
5. read section L7 and cross off the list of heirs those whose shares are eliminated by the other existent heirs;
6. if any universal heirs (def: L10.5) exist, see which of them eliminates the shares of the other universal heirs, as at L10.6;
7. make a table of the heirs remaining (after (e) and (f) above) like the tables shown at L6.6, where one writes the type of heir, the fraction each deserves (with the universal heir receiving the remainder, if any), and then at the top writes the total shares (this being the common denominator of the fractions), after which one calculates the shares that go to each;
8. if the fractions (of those besides the universal heir) add up to more than one(i.e.the total estate), then one must adjust for this as shown at L8.2;
9. but if the fractions add up to less than the total estate and there is no universal heir to inherit the rest, then one must redistribute the shares as described at L9.1-2.

One may practice and test one's skill at estate division by reading through the present section and doing the problems depicted in the tables, though to do all the problems one must have (or memorize) a full worksheet that contains all the informination mentioned in (d), (h), and (i), above, plus the rules concerning universal heirs discussed at L10.1-4. Finally, it is best to check one's answers with an Islamic scholar, preferably a teacher from whom to take instruction, since this is a subject that is easier to acquilre from its masters than from books.)

EXPENSES DEDUCTED FROM THE ESTATE PRIOR TO ESTATE DIVISION

L4.2 The first thing (O: obligatorily) taken from X's property is the expense of preparing his body (O: such as the cost of the water to wash him, the washer's fee, cost of the shroud and perfume placed therein, pallbearers'fees, and so forth) and of burying him. These expenses are deducted before X's debts are paid, his bequests fulfilled, or his estate divided, unless there is a financial obligation due on the property itself, such as:

1. when there is zakat (A: due from any year X neglected to pay it before his death);
2. when some of the property has been put up as collateral (dis: k11.2);
3. or when X dies bankrupt with unpaid-for merchandise among his property (A: which must be returned to the seller before paying other expenses from X's property).

L4.3 After the above are paid, the following measures are taken (A: and the sequence given is obligatory):

1. X's debts are paid (N: though if a government takes non-Islamic estate taxes, these are deducted from the main part of the estate (A: before debts or bequests, as any other loss would be));
2. then X's bequests (def: L1-3) are carried out (O: from a third of what remains after debts);
3. and then X's remaining property is divided between his estate division heirs.

HEIRS

L4.4 X's male heirs consist of:

1. X's son;
2. X's son's son, son's son, and on down;
3. X's father;
4. X's father's father (A: the term grandfather throughout the book of inheritance refers only to this paternal grandfather), father's father's father, and on up;
5. X's full brother, or half brother from X's father or mother;
6. the son of X's full brother, or son of X's half brother from the same father;
7. X's father's full brother, or son of X's half brother from the same father;
8. the son of X's father's full brother or father's half brother from the same father;
9. and X's husband.

X's female heirs are:

1. X's daughter;
2. X's son's daughter, son's son's daughter, son's son's daughter, and on down;
3. X's mother;
4. X's grandmother (whether she is the mother of X's father or mother), great-grand-mother, and on up;
5. X's full sister, or half sister from the same father or mother;
6. and X's wife.

EXTENDED FAMILY MEMBERS WHO DO NOT NORMALLY INHERIT

L4.5 The following extended family members may no inherit from X's estate (except under the conditions discussed at L10.8):

1. X's daughter's children (O: male or female);
2. X's mother's brother's sons;
3. X's sister's children, the sons or daughters of X's daughter's children, or the sons or daughters of X's sister's children;
4. X's brother's (O: whether full brother's from the same father) daughters;
5. X's father's brother's (O: whether full brother's or half brother's from the same father) daughters;
6. X's father's half brother from the same mother;
7. X's mother's father;
8. X's mother's brother or sister;
9. X's father's sister;
10. or anyone related to X through one of the above.

L5.0 THE FOUR PREVENTIVES OF INHERITING AN ESTATE DIVISION SHARE

(O: Preventive means that if someone is an estate division heir (def:L4.4) but one of the following characteristics exists in him, then he may not inherit.) (A: In calculating the estate division, an heir who is made ineligible by a preventive is considered nonexistent. Such a person is nonheir, and as such is eligible for a bequest (def: L1.0) if X wills him one.)

L5.1 The first preventive is killing. Whoever kills X may not inherit from him, no matter whether the killing was:

1. lawful, as in retaliation (def: o3) or imposing a criminal penalty;
2. without lawful right;
3. accidental;
4. intentional;
5. direct (O: such as Z shooting while hunting,and the shot hitting X);
6. or when Z is a causal factor in X's death, such as testifying to an act of X's that calls for retaliation against X, or such as digging a well into which X falls.

To summarize, whoever has a hand in X's death, no matter how, cannot inherit from him.

L5.2 The second preventive is being non-Muslim: a Muslim may not inherit from a non-Muslim, and a non-Muslim may not inherit from a Muslim (dis:L1.0).

L5.3 The third preventive is slavery.

L5.4 The fourth is uncertainty as to who died first,such as when X and Z both drown or both die in the collapse of a building, and it is not known who died before the other. In such a case neither may inherit from the other.

L6.0 THE ESTATE DIVISION SHARES

L6.1 The six obligatory shares mentioned in the Koran (Koran 4:11-12) are one-half, one-fourth, one- eighth, two-thirds, one-third and one-sixth.

L6.2 They go to ten categories:

1. X's husband;
2. X's wife;
3. X's father;
4. X's mother;
5. X's daughters;
6. X's son's daughters or the daughters of X's son's son, son's son, and on down;
7. X's sister;
8. X's father's father;
9. X's mother's or father's mother;
10. X's half brothers or half sisters from the same mother.

L6.3 (N: A summary of X's husband's share:

X's husband:

1. receives one-half the estate when X has no child who may inherit (O: even if the child is from a different husband) (N: the word child (Ar. walad) including both males and females (A: of all ages)), and X's son has no child who may inherit;
2. but receives one-fourth the estate when X has a child who may inherit (O: whether from X by this husband or a different husband, and whether male or female), or when X's son has a child who may inherit.

L6.4 (N:A summary of X's wife's share: -1/4 if there is no inheriting descendant. -1/8 if there is an inheriting descendant. -The wife's share is not eliminated by anyone.)

X's wife:

1. receives one-fourth the estate when X has no child to inherit (O:even if by a different wife) and X's son has no child to inherit;
2. but receives one-eighth the estate when X has a child to inherit, or X's son has a child to inherit (O:whether X's son is from her or from another wife).

If there are two , three, or four wives, they jointly receive the one-fourth or one -eighth (O:meaning that the share apportioned to one wife is given to two or more (A: to divide up between them)).

L6.5 (N:A summary of X's father's share: -1/6 if there is an inheriting descendant. Universal heir (def: L10.5) if there is no male inheriting descendant. -The father's share is not eliminated by anyone.)

X's father:

1. receives one-sixth of the estate when X has a son to inherit, or when X's son has a son to inherit(O:or when X has a daughter or X's son has a daughter , who may inherit (N:though in such a case, the father takes (A:the sixth plus) the remainderr of the estate as universal heir (n:as discussed next))
2. but is universal heir (O: by himself,meaning he takes the whole estate if there are no others who have an obligatory share coming ; or if there are such others, he receives the remainder of the estate after tehy have received their shares) when X has no son to inherit and X's son has no son to inherit L6.6 (N: A summary of X's mother's share: -1/6 if there is an inheriting descendant, or if there are two or more of X's brothers or sisters. -1/3 of the remainder after deducting the share of X's husband or wife in cases where the heirs include both X's father and the husband ir wife but no inheriting descendant. -1/3 of the estate when none of the above mentioned heirs exists. The mother's share is not eliminated by anyone.)

X's mother:

L6.7 (N: A summary of X's daughter's share: -1/2 if there are no other of X's sons or daughters (n: whether full or half brothers of sisters to her). -2/3 for her to share equally (if there are no sons) with other daughters, if any. -She is co-universal heir (def:L10.3) with X's sons(s) if existent, meaning that they jointly constitute the universal heir, dividing this share so that each male receives twice the amount of each female (A: since men are obliged to support women in Islam (dis:m11) and not vice versa). -The daughter's share is not eliminated by anyone.)

1. X's sole daughter (O: who is without a co-universal heir such as her brother, and without someone else on her own level, such as her sister) receives half of the estate.
2. Two or more daughters jointly receive two-thirds.

L6.8 (N: It is important to remember for the persons named in the following rulings that the share of any of them who is related to X through an inheriting heir is eliminated by the existence of that heir (dis:L7.4-6), except for X's half brother from the same mother, whose share is not eliminated by the mother's existence.)

L6.9 (N: A summary of the share of X's son's daughter: -Her share is eliminated if X's son exist (n: an example of the above rule). -1/2 if X has no daughter son's son or any other daughter of a son. -2/3 for her to share equally with the other daughters of X's son(s), if X has no daughter(s) or son's son(s). -1/6 when there is a sole daughter (def:L6.7(1)). -She is co-universal heir (def:L10.3) with X's son's son(s) (A: in the absence of X's daughter, dividing this share of each male receives twice the share of each female). -Her share is eliminated when X has two or more daughters.)

When X's sole daughter (def:L6.7(1)) exists, X's son's daughter(s) (A: if there are more than one, they share) receives one-sixth of the estate, which with the sole daughter's share of one-half, makes two- thirds (N:which is the maximum that may go to the category of daughters).

L6.10 (N: A summary of the share of X's full sister:

(n: L6.12 discusses X's full sister(s) with X's daughters.)

L6.11 (N: A summary of the share of X's half sister from the same father:

L6.12 X's full sister(s) is universal heir through X's daughter(s) (def:L10.4). If X has no full sisters, X's half sisters by the same father are the estate's universal heirs through X's daughter(s) (L10.4).

An example of the former is when the heirs are X's daughter and full sister. The daughter receives one-half (dis:L6.7(1)), and the sister receives the rest (A: as universal heir):

Another example is when there are X's two daughters, a full sister, and a paternal half sister, in which case the two daughters jointly receive two-thirds (dis: L6.7(2)), and the full sister receives the rest (A: as universal heir), while the paternal half sister's share is eliminated (A: by the full sister's universal heirship):

L6.13 (N: summary of X's grandfather's (father's father's) share:

As for the grandfather, sometimes X's brothers or sisters exist with him and sometimes they do not.

When they do not, then the grandfather receives one-sixth of the estate of X's son or son's son (O: or X's daughters or son's daughters) exist (N: but in such a case he takes the sixth plus the rest as universal heir); while the grandfather is the universal heir (def: L10.5) in the absence of X's son or son's son (N: or daughter or son's daughter).

When X's (full or paternal half) brothers or sisters exist, then sometimes there are other inheriting heirs (dis:L6.15) and sometimes not (L6.14).

L6.14 When (Besides X's brother(s) or sister(s)) the grandfather's consurvivors do not include other inheriting heirs, the grandfather divides the estate with the brothers (A: and sisters) as if he were one of them, and (if there are only sisters) is co-universal heir (def: L10.3) with the sisters.

But such a division is only effected when it does not result in less than one-third of the estate going to the grandfather. If it would result in less than a third for him, then his obligatory share is one-third of the estate, and the brothers or sisters divide the rest between them, the males receiving the share of two females. This is illustrated by the following examples (A: in each of which the grandfather receives at least a third):

In each of the above examples, the grandfather divides the estate with them, the male receiving the share of two females.

L6.15 When (besides X's brothers or sisters) the grandfather's cosurvivors include another inheriting heir, then the heir is given his share, and the grandfather receives the maximal amount of three possibilities:

1. division (A: meaning to divide it with the brothers or sisters as in the above examples);
2. a third of the remainder (A: taking a third of what remains after the (non-brother/sister) heir has taken his share);
3. or one-sixth of the estate (A: as the estate stands before the above-mentioned heir has received his share).

This ruling may be illustrated by (n: the following four examples):

L6.16 If both X's brothers and half brothers from the same father exist with the grandfather, the brothers add the number of the half brothers shares with their own shares in calculating their own versus the grandfather's, but then the brothers receive both their own shares and the half brothers' shares. (A: The latter are eliminated (dis: L7.3) by the brothers, but are initially reckoned in as a dispensation for the brothers.)

This may by illustrated by the following example, in which there is X's grandfather, brother, and half brother from the same father.

but then, because the brother eliminates the half brother's share,

and this is the actual division.

In a second, similar case, if there is a sister, half brother from the same father, and grandfather, then (A: the half brother's share is reckoned with the sister's share versus that of the grandfather, and) her portion of the estate is brought up to one-half (A: which is the maximum she may receive as at L6.10(1)) from the (n:additive) amount, and the rest goes to the half brother (A:since the grandfather already has his share and she may receive more than her obligatory share of one-half). (n: To illustrate, first we make a plain division, the males receiving the share of two females:

Then, as in the previous case, we give the half brother's share to the sister, since there is none to eliminate her full share of one-half (dis: L6.10(1)).

But since this gives the sister more than her maximal share of one-half, the surplus is returned to the half brother, and this is the final division. Here, for convenient redivision, we multiply the case's shares by two:

which is the actual division.)

L6.17 When there is a sister (O: full sister or half sister from the same father) and grandfather, the sister does not normally receive a particular obligatory share (O: since she is co-universal heir (def: L10.3) with the grandfather), except in the following case (Ar.al-akdariyya lit "the murkiest") in which there is X's husband, mother, grandfather, and sister.

But at this point, the estate has been used up, despite the fact that the sister deserves her share of one- half, and no one can eliminate it:

so we redivide the estate by adding the three shares that the sister deserves to the initial division's six shares, which become nine (A: this procedure being an adjustment (`awl, def; L8.1) for not being able to give everyone full shares, one which proportionately distributes the deficit to all recipients).

But this results in the grandfather receiving less than if he were to divide the remaining estate with the sister (n: which is impermissible because of ruling L6.15), and so the grandfather and sister add their shares to together (equalling four) and divide them, the male receiving the portion of two females (n: Here, for convenient redivision, we multiply the case's shares by three:

and this is the actual division.)

L6.18 (N: A summary of the share of X's grandmother (whether she is X's father's mother or mother's mother, or, if both exist, they share the portion):

F - Mother
M - Father

L6.19 As for great-grandmother F, she does not inherit, as she is an extended family member who may not inherit (A: being related to X through B, who may not inherit (dis: L4.5(7, 10))).

L6.20 (N: A summary of the share of X's half brother or sister from the same mother:

L6.21 To summarize all of the foregoing:

L6.22 (N: A summary of the other heirs'shares:

L7.0 THOSE WHOSE SHARES ARE ELIMINATED BY OTHERS (HAJJ)

L7.1 The share of X's half brother from the same mother is eliminated by the existence of four types of heir;

L7.2 The share of X's full brother is eliminated by three:

L7.3 The share of X's half brother from the same father is eliminated by four:

L7.4 The share of the son of X's son is eliminated by X's son, and likewise the son of the son of X's son, and on down: each is eliminated by the existence of a son closer to X (A: meaning fewer generations from X, even if the one who is closer is from a different one of X's sons).

L7.5 X's grandmother or great-grandmother does not inherit if X's mother exists.

L7.6 Neither X's grandfather (A: i.e. father's father) not grandmother or great-grandmother on the father's side may inherit when X's father exists.

L7.7 When X's daughters receive a full two thirds of the estate (dis: L6.7(2)), then the daughters of X's son do not inherit,unless they are made co-universal heirs (def: L10.3) by the existence of a male who is at the same distance (A: number of generations) from X as they are or by one who is farther from X than they when they are co-universal heirs, the male receives the share of two females.

For example, if there are two daughters and a daughter of X's son, the two daughters take two thirds and the son's daughter receives nothing. But if there also exists with her X's son's son, or son's son, then she (A: as co-universal heir 9def; L10.3) with him) gets the rest of the estate with him, the male receiving the share of two females (N: and such a male is nicknamed her blessed brother (akh mubarak)).

L7.8 Similarly, when X's full sisters receive two-thirds of the estate (dis:L6.10(2)), then X's half sisters from the same father do not inherit, unless they have a brother to make them co-universal heirs, the male receiving the share of two females.

L7.9 Someone who does not inherit to begin with (N: due to the existence of a preventive (def: L5)) cannot eliminate the share of anyone (A: such a person being as if nonexistent in figuring the estate division).

L7.10 Someone who may inherit, but whose share has been eliminated by another, cannot eliminate the share of anyone, although such a person's existence may diminish the share of someone, as when there exist X's half brothers from the same mother, and X's father and mother. In such a case, the half brothers do not inherit (dis: L6.20(N:)), but their existence diminishes the mother's share from a third to a sixth (dis:L6.6(2)).

L8.0 ADJUSTMENT WHEN THE SHARES EXCEED THE TOTAL ESTATE (`AWL)

L8.1 (A: Adjustment (`awl) is used in cases where the estate is not enough to give everyone their full shares, and proportionately distributes the deficit to all the heirs in an equitable way.)

L8.2 Whenever the shares deserved by heirs exceed the number of available shares, the number of shares is additively increased to the number needed.

An example is the case (al-mubahala) in which there are X's husband, mother, and full sister:

but at this point, the estate has been used up despite the fact that the mother deserves her share of one- third, and no one can eliminate it:

so we redivide the estate by adding the mother's portion (n: two shares) as an adjustment:

and this is the actual division. (n: L6.17 furnishes another example of adjustment.)

L9.0 REDISTRIBUTION WHEN THE SHARES ARE LESS THAN THE ESTATE (RADD)

(n: This section has been moved here from its original place after L10.7 below.)

L9.1 If X has no (A: universal heir) relatives (def; L10.5) then (A: the remainder of) his estate goes to the Muslim common fund (bayt al-mal) as an inheritance to the Muslims, provided the Islamic ruler is just.

If the Islamic ruler is not just (A: or not existent), then it (A: the excess) is redistributed among the inheriting heirs in proportion to their relative shares, except for X's husband or wife, who may not receive any of the redistributed amount.

L9.2 (N: Three illustrations of redistribution follow:

L10.0 UNIVERSAL HEIR (`ASABA)

L10.1 (A: A universal heir (`asaba) is someone who takes the remaining estate, if any, after heirs deserving obligatory shares have taken them. When there are no such heirs, the universal heir takes all. There are three types of universal heir:

1. universal heir by oneself (`asaba bi nafsihi):
2. co-universal heir (`asaba bi ghayrithi);
3. and universal heir through the existence of another (`asaba ma'a ghayrithi).)

(n: The following three definitional entries have been added to this section by the translator.)

UNIVERSAL HEIR BY ONESELF

L10.2 (Hasanaya Muhammad Makhluf:) The universal heir by oneself is X's male relative who is not related to X through a female, whether this be because:

1. there is no one between him and X, as is the case with X's father or son;
2. or whether because there is someone between him and X, but not a female, such as X's grandfather (the father of X's father) X's son's son, X's full brother, or X's half brother from the same father.

CO-UNIVERSAL HEIR

L10.3 The co-universal heir is any female deserving an obligatory share who requires someone else in order to become a universal heir, and with whom she participates in this universal share.

It is a class confined to four type of women, those whose share if alone is one-half, and if there are more than one is two thirds. They are;

1. X's daughter;
2. X's son's daughter;
3. X's full sister;
4. and X's half sister from the same father.

Whenever a male exists with one of these four who is universal heir by himself (def; L10.2) of the same generation as her and of the same strength (N:ie both we full or half siblings). she becomes co-universal heir with him and inherits by the universal share, not her obligatory share. They divide the universal share so the male receives the portion of two females.

UNIVERSAL HEIR THROUGH THE EXISTENCE OF ANOTHER

L10.4 The universal heir through the existence of another is any female deserving an obligatory share who requires someone else to become a universal heir, but with whom she does not share this universal share.

These are only two people from among those who deserve obligatory shares:

1. X's full sister;
2. and X's half sister from the same father;

provided that X's brother who would form a co-universal heir (def: L10.3) with them (A: in which case they would not be a universal heir through another) does not exist, and provided that either of the above two females exists with X's daughter(s) or son's daughter(s), and on down (A: these being the someone else needed to make them a universal heir through another) (al-Mawarith fi al-shari'a al-Islamiyya (y80), 99, 102, 103).

L10.5 The universal heir is a person who takes the whole estate if there is no other heir, or takes any of it that is in excess of the obligatory portions which are given to heirs, when they also exist. If there is nothing in excess of the heirs' obligatory shares, then the universal heir does not receive anything.

L10.6 Their order (A: these being the universal heirs by themselves (def: L10.2 )) in closeness to X (A: such that the existence of someone at the first of the list eliminates the universal heirship of anyone following him) is:

1. X's son;
2. X's son's son;
3. X's son's son's son, and on down, no matter how many generations;
4. X's father;
5. X's father's father;
6. X's father's father, and on up,no matter how many generations;
7. X's full brother;
8. X's half brother from the same father;
9. the son of X's full brother;
10. the son of X's half brother from the same father;
11. the brother of X's father;
12. the son of the brother of X's father this son's son, and on down;
13. the brother of X's father's father;
14. and then (13)'s son, this son's son, and on down.

L10.8 When there is no universal heir, and no heir inheriting an obligatory portion that the excess estate could be redistributed to (dis: L9.1),then the estate is divided between the extended family members (def:L4.5) such that each of them takes the place of the person through whom they are related to X For example:

1. X's daughter's child takes the share of X's daughter;
2. X's sister's child takes the share of X's sister;
3. X's brothers' daughters take the share of the brothers;
4. the daughters of X's father's brother take the latter's share;
5. X's mother's father takes her share;
6. X's mother's brother or sister takes her share;
7. and X's father's half brother or sister from the same mother takes the father's share.

L10.9 No universal heir may inherit (A: a universal share) when there is a universal heir who is closer to X than he is.

L10.10 No one constitutes a co-universal heir (def: L10.3) with his sister except:

1. X's son (N: with X's daughter);
2. X's son's son (N: with X's son's daughter);
3. and X's brother (A: with X's sister)

Each of them constitutes a co-universal heir with his sister, the male receiving the portion of two females.

L10.11 (N: In addition to being co-universal heir with X's son's daughter ((2)above),) X's son's son (N: or son's son's son, and on down) is (n: also ) co-universal heir with the daughters of his father's brother who are of the same generation as he, and those of his father's sisters and the daughters of his father's father's brother(s) who are above him (N: of a closer generations to X) , provided they (A: those closer to X than he) have no obligatory shares coming. (N: Because if they do, then they take their share and are not co-universal heirs with him. This may be illustrated by the following example:

L10.12 A person who is a universal heir does not participate in the share of someone who has an obligatory share coming, except in the following case (al-musharraka):

Given X's husband, mother (or grandmother, for the result is the same), two half brothers from the same mother, and a full brother:
 

in which case the estate has been used up and nothing remains for the brother:

(N: But the full brother is closer to X than the half brothers, and should not be eliminated by their share, so an exception is made and the half brothers and full brother are made co-universal heirs:)
 

(N: It is important to remember in such cases that the universal share is divided so the males and females receive equal shares (dis: L6.20(2)).)

L10.13 When a person both deserves an obligatory share and is a universal heir, then he inherits both of these.

An example is when the son of X's father's brother (A: who is universal heir (dis: L6.22(8))) is also X's husband (A: deserving a husband's share (dis: L6.3)); or when the son of X's father's brother is also X's half brother from the same mother.  

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