Al wasiyyah the lawful islamic will, as it pertains to south carolina muslim residents
Transcript of Al wasiyyah the lawful islamic will, as it pertains to south carolina muslim residents
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Al Wasiyyah - The
Lawful Islamic Will,
as it Pertains to
South Carolina
Muslim Residents
As-Salamu-Alaikum! I would like to take this opportunity
to congratulate all of my Muslim brothers and sisters for
submitting their wills' to Allah and accepting Mohammed (Peace
be upon him) as Allah’s final prophet and messenger. May Allah
reward you all with the highest level of paradise (Jannah-
firdus)!
Many Muslims, particularly those living outside of the
USA, were fortunate enough to be born onto the deen (Islamic way
of life) by having Muslim parents that provided them with an
Islamic household and community. However, a great deal of
people, myself included, were not raised as Muslims.
Nevertheless, we have been extremely fortunate, in that Allah,
subhanahu wa-ta'ala (glorified and exalted is He) through his
qadar (predestination) has enabled us to receive dawah (Islamic
teaching/preaching) in non-Muslim lands such as the USA via his
righteous servants, media, etc., in order to accept Islam. As a
result, we have reverted back to the original way of life
ordained for mankind by Allah and have in essence reclaimed our
Islam. Unfortunately, although we Muslims who live in non-Muslim
lands, such as the USA are passionate about Islam and want to be
free to express our religious beliefs, we are not always
afforded this luxury. Often times our Islamic way of life is
suppressed; either by negative media, by Muslims in authority
whom are ignorant or insecure about proselytizing, or even by
the structures of the society in which we live. Regardless of
which factors we regard as the culprit, it is obvious that
actions must be taken in order to improve our overall way of
life while simultaneously respecting the laws of the land in
which we live.
In view of these facts, I feel like it is of the utmost
importance for me to do my part to improve the condition of my
Muslim brothers and sisters living in the USA; particularly the
state of South Carolina. Charity begins at home! Also, since
Allah has made it clear that he will not change the condition of
a people until they first change it themselves; coupled with the
statement of our beloved prophet Mohammed (P.B.U.H.): “The pen
is mightier than the sword;” insha-Allah, my aim is to create a
document that will assist revert and immigrant Muslims living
within the USA, particularly the state of South Carolina with
fulfilling the basic requirements of their socio-Islamic
obligations; namely, writing an Islamic will that complies with
the Quran and sunnah, while simultaneously fulfilling the legal
requirements of the state in question (South Carolina). Details
regarding preparing for and performing salatul-janaza (Islamic
funeral) and the distribution of inheritance will also be
addressed.
My reason for addressing the issues of the Islamic will,
death, burial, and inheritance has been influenced by the number
of instances wherein I observed Muslims whom were totally
unfamiliar with these responsibilities present inquiries that
either went unanswered or were addressed with misinformation. In
most instances, the problems pertaining to the above mentioned
matters stems from a general case of gross neglect; i.e., either
not seeking knowledge or simply believing that there would be
sufficient time to address these matters at a later date, and in
other instances, from more complex matters such as oppression;
i.e., being ostracized for not engaging in practices that are
clearly forms of bidah (innovation), kufur (disbelief), or even
shirk (associating partners with Allah). Therefore, as a result
of inadequate answers or obstacles faced while pursuing
information regarding these matters, a frustrated and
disheartened believer may voluntarily leave the only community
in their vicinity; thus, severing their main, and in most
instances, only lifeline to proper Islamic knowledge and advise.
With this being said, I would like to make it clear that
exposing dilemmas within Islamic communities in the USA or even
South Carolina is beyond the scope of this document. I am merely
a revert who felt inspired to create this document to serve as a
pacifier for those Muslims whom are making the transition into
Islam from another religion and do not have access to an Islamic
community, and for all others whom are in need of this
information due to mitigating circumstances.
AL-Wasiyya The lawful
Islamic Will
BY no means should I be considered an Islamic authority!
Therefore, I welcome the input of any Islamic authority on this
subject matter to help improve the quality of this document. To
reiterate, I constructed this document because it is imperative
for every Muslim to be educated about the Islamic will
(wasiyya), how to perform a janaza, and distribute inheritance;
especially those Muslims living in non-Muslim lands. Moreover,
the importance of possessing a will and having it prepared prior
to one’s death was highly stressed by the prophet (P.B.U.H.). In
a hadith collected by Bukhari, that was narrated by Ibn Omar,
the Prophet (P.B.U.H.) explicitlidly said: "It is not right
(fair) for a Muslim who has anything to be disposed of (willed),
to sleep for two nights unless his will is written with him."
What is of even greater importance is the statement of Allah
wherein he reminds us of the importance of writing a will in
surah Al-Baqarah (2:180) which reads: “ Prescribed for you when
death approaches [any] one of you if he leaves wealth [is that
he should make] a bequest for the parents and near relatives
according to what is acceptable - a duty upon the righteous.” In
addition, most contemporary scholars hold that in a country
where Shariah (Islamic law) is not applied by the government to
one’s assets pertaining to death (as is the case of the USA),
then the duty referred to in the above mentioned Quranic verse
and hadith, applies not only to preparing a will but also to
matters pertaining to inheritance and all assets owned.
Therefore, legal considerations should be taken into account
when living in a non-Muslim land; because, Shariah law is not
recognized under the U.S. Constitution or State law as being an
enforceable code of laws.
An example of this fact is the U.S. Supreme Court’s 1878
ruling wherein it was declared that plurality of wives
(polygamy), as practiced in Islamic lands, was deemed a
violation of criminal law and is not defensible as an exercise
of religious liberty; thus, making polygamy illegal in South
Carolina. Also, if a member of the deceased’s family,
particularly among those not regarded as eligible heirs under
the shariah, (adopted children, step children, illegitimate
children and foster parents); or a common-law husband/wife, life
partner (member of the same sex), etc., (regarded as lawful
heirs in the USA), wishes to contest the will, the matter would
customarily be resolved by the State Court laws of the state in
which the deceased lived. As a result, if a will is prepared
according to Shariah only, and is not drafted in a manner so as
to comply with the State laws in which the deceased resided, the
Islamic will might not have any legal standing within the state
in question. With this being said, it is imperative for a Muslim
living in a non-Muslim land to write a will in accordance with
their state's legal guidelines in order to successfully fulfill
their obligations to their Creator, parents, and next of kin.
The will should also be written in a manner that makes it
uncontestable by any court and or other person. In addition, the
will should be sufficiently explicit to the extent that it does
not require any interpretation by a non-Islamic court.
In retrospect, a will is a very significant means to
provide a flexible instrument in estate planning in Islam. The
Islamic will basically involves one, a testator, giving a gift
to others (beneficiaries), after their (testator's) death.
Creating an Islamic Will
Before engaging into will making, it is crucial to know
what constitutes a will versus what is considered a gift. There
is a big difference between a will and a gift, in that a will
consists of items, not exceeding 1/3 of one’s net assets which
one possesses or is entitled to prior to their demise, but
cannot be awarded until after their (testator's) death. Whereas,
a gift is basically any item that one willingly donated while
they were alive and mentally competent. Moreover, it should be
noted that it is permissible for one to give a gift to someone
even if they are not a Muslim; as a result, it is permissible to
will items to non-Muslim family members and friends. However,
the main condition which must be fulfilled by a testator is to
always be mindful that charity and wills must not be so
allocated that the rightful owners and other dependents, which
rely upon the testator, are not rendered poor and helpless;
i.e., denied their rights as a result of one’s charitable
nature.
It is also imperative that one become aware of the
difference between an Islamic will and a normal will. Basically,
there is not much difference between an Islamic will and a
normal will. However, there is a major difference between the
two with regard to how one’s wealth is to be distributed and who
are regarded as heirs. With regard to an Islamic will, one’s
wealth must be distributed in accordance with the Quran and
Sunnah with fixed shares being allotted to one’s closest
relatives. However, a normal will, which is unlawful for
Muslims, enables one to appoint anyone as an heir and distribute
the shares of their wealth howsoever they wish. Thus, the main
differences are that an Islamic will has fixed shares and
specific heirs.
After one has made the decision to utilize an Islamic will
to settle their estate after their death, one should make a list
of every possible question pertaining to employing an Islamic
will in a non-Muslim country. If accessible, one should then
look for a Muslim scholar at a local masjid/Islamic center who
can provide them with the correct understanding of how the
shares mentioned in the Quran and ahadith need to be allocated.
Janaza arrangements and any other issue relating to one’s demise
should also be clarified from an Islamic perspective and
specified in one's will; because, they also pertain to the will
in question. One should then contact about three "wills and
estate lawyers" and inquire about dividing one’s estate in
accordance with Islamic law. If the attorney does not seem
motivated about your decision to create an Islamic will, it
behooves you to pursue your second and third choices; and more
if you feel it necessary. Lastly, get all of the details and
inquire about all available options before making a commitment.
Also visit http://www.livingmuslim.com to contact an attorney
who is knowledgeable about Islamic law. For the benefit of all
Muslims residing in the USA, a listing of the State Requirements
for a Last Will and Testament can be viewed at:
http://www.legalzoom.com/wills-guide/last-wills-state-
requirements.html
In South Carolina, the laws regarding the valid execution
and witnessing of a will are set forth in the Code of Laws of
South Carolina, Title 62 South Carolina Probate Code, Article 2
Intestate Succession and Wills, Part 5 Wills, Sections 62-2-501
through 62-2-504. The basic requirements for a legal will for
the state of South Carolina include age, capacity, signature,
witnesses, writing, and beneficiaries.
In accordance with the objective of this document, I have
included the most important aspects which should be included in
one's Last Will and Testament; which include the following:
TITLE: Generally, the headline would be: LAST WILL AND
TESTAMENT. However, according to Islamic law, the word wasiyya
or LAST WILL AND TESTAMENT does not have to be specifically
mentioned in order to establish a valid will.
The title "LAST WILL AND TESTAMENT" would designate the
document as one’s Last Will and Testament; i.e., revoking
all previously made wills and codicils
One should take every effort to destroy all copies of old
wills. If one had previously executed a will, they
should physically destroy it. Even though one’s will
titled "LAST WILL AND TESTAMENT" technically
"invalidates" all prior wills, one should not rely on
this language to revoke them.
NAME: You (testator - the person who makes a valid will) must
state your full name and residential address
Note: in giving one’s personal details, be as complete as
possible; i.e., add any identification numbers, maiden
names etc.
AGE: One (a testator) must be at least 18 years of age in order
to make a valid will in the state of South Carolina. However,
according to Islamic law, an adult can be anyone who has reached
puberty; with evidence of puberty being menstruation in girls
and nocturnal emissions (wet dreams) in boys. In the absence of
physical evidence such as pubic hair, puberty is presumed at the
completion of the age of fifteen years.
In most of the states within the USA, one must be 18 years
of age to write a will, unless they are a military
personnel in which case one may make a valid will at the
age of 17
CAPACITY: In South Carolina, any person who is of sound mind
and not a minor can make a Will. (See: Section 62-2-501) "Sound
mind" in this instance pertains to someone who has not been
deemed incompetent in a prior legal proceeding. Therefore, a
testator must be capable of reasoning and making decisions, and
must not be under duress or undue influence in order to make the
will in question. A testator must also own the assets they
intends to bequest.
SIGNATURE: A South Carolina last will and testament must be
signed by the testator or by some other person under the
testator's direction in the testator's presence; as in the case
of those whom are illiterate, disabled, visually impaired, or
handicapped. (See: Section 62-2-502)
To finalize one’s Last Will and Testament in South
Carolina one must sign the document in front of two
witnesses, and the witnesses must also sign the will.
It is important to note that in South Carolina, one does not
need to notarize their will in order to make it legal. However,
one should employ the services of a Notary Public; because,
South Carolina allows one to make their will "self-proving;"
which requires the services of a notary. (See: Section 62-2-503)
Furthermore, if a will’s authenticity is unchallenged it may be
probated in a simplified procedure if it has been self-proven.
In order to make a will self-proving, a testator, along with
their witnesses must visit a notary and sign an affidavit
swearing that each party confirms their identity and verifies
that they are fully aware that they are signing a valid will
that is authentic. (See: Section 62-2-503) Having this done is
extremely beneficial since possessing a self-proving will speeds
up probate because the court can accept the will without
contacting the witnesses that signed it.
Witnesses to a self-proven will in the state of South
Carolina are not required to testify in court because the court
automatically accepts a self-proven will as authentic.
The Self-Proving Affidavit can be placed at the footer of
all wills in those states that permit them
One should only sign a "Single Copy" (1) of the will
together with All witnesses
Only if necessary, one should distribute unsigned copies
of the will to witnesses, and then store the original
document in a safe place, and let the executor and when
available, alternate executor know where they can find
and access the original will upon one’s death
One should not have more than one (1) original or even
photocopies of their signed will. The existence of
multiple copies can complicate matters if one wishes to
create a new will at a later time; because, it may prove
difficult to track down all copies of one’s old
will. Instead, one should consider providing their
beneficiaries, executor, and alternate executor each with
an unsigned copy of the will (initial each page of each
copy of the will in the designated place, at the bottom
of each page)
One should also have a notary present at the signing of
their will whenever a Self-Proving Affidavit is involved
The will and the Self-Proving Affidavit should be signed
on the same occasion
WITNESSES: At least "two witnesses" whom are at least 18
years of age from among those whom cannot be beneficiaries are
required for a valid South Carolina Last Will and Testament.
(See: Section 62-2-502) Generally, it is recommended that the
two witnesses to the will be “disinterested”, which means that
they are not a beneficiary of the will. In South Carolina, the
signing of a will by an interested witness does not invalidate
the will but the gift to the witness is void unless there are at
least two disinterested witnesses to the will. (A court might
later disqualify a beneficiary who serves as a witness from
their inheritance; and one’s Last Will and Testament would be
more vulnerable to challenge) However, an exception is if an
interested witness (a spouse or child) becomes a beneficiary via
intestacy (when a person died intestate without a valid Last
Will and Testament). In this instance, the interested witness
would be entitled to receive the gift (according to South
Carolina intestate guidelines) up to the value they would have
received had the will not been established. (See: Section 62-2-
504)
At the testator's direction or request, the two witnesses,
while in the presence of the testator, must include an
attestation clause wherein they observe the testator’s actual
signing of the will; and every witness must observe the other
witnesses signing the will or Self-Proving Affidavit. (See:
Section 62-2-503) Moreover, a testator does not need to read the
will to their witnesses, and it is unnecessary for the witnesses
to read the will. However, the testator must ensure that all
witnesses clearly understand that the document is to function as
a Last Will and Testament upon the testator’s demise.
It is also important to note that all states require two
witnesses, with the exception of Vermont. Moreover, contrary to
South Carolina law, Islamic law requires that both witnesses be
males when the matter involves financial transactions).
Therefore, in matters involving financial transactions, Islamic
law requires the testimony of “two females” in the absence of a
male party; i.e., 1 male and 2 females. This fact is evident
from Surah Al-Maidah (5:106) of the Quran which reads: "O you
believe! When death approaches any of you, and you make a
bequest (then take) the testimony of two just men of our own
folk or two others from outside, while you are traveling through
the land and death befalls on you..."
Although only two witnesses are required by law, it is
strongly recommended that one obtains “three” witnesses
to sign one’s will in the event a witness dies or moves
to another state
It is also advantageous to select witnesses that are young
and whom are unlikely to move far away, so that they may
be around if needed at the time of the execution of the
will; the same applies to Notary Publics
WRITING: A South Carolina Last Will and Testament must be in
writing in order to be valid. (See: Section 62-2-502)
Nuncupative (Oral Wills) have no statutory recognition in
South Carolina, but are valid under Islamic law
Holographic Wills are impliedly forbidden by statute
unless specifically recognized by valid out-of-state
execution or out-of-state probate
However, according to Islamic law, after the revelation of Surah
Nisa (4:11-12), in Islamic countries where shariah is followed,
it is not required for a Muslim to physically write a will
during their lifetime; because, upon their death their estate
will be divided as outlined in the Quran and sunnah, among the
living heirs. However, in South Carolina, if one dies without
writing a will, their property will be distributed according to
the state’s "intestacy" laws. Moreover, it is the right of every
citizen of a non-Muslim country, to will their property as per
their desires. Thus, by writing a will, a Muslim can ensure that
the State laws of the land will execute as closely to the
Islamic Shariah as possible with regard to their will. In view
of these facts, in a non-Muslim country like the USA which does
not have a separate Muslim Personal Law, every Muslim should
view writing a will as a compulsory act; because, in the absence
of a will each state within the USA will employ its own
intestate method of distributing one’s assets. Lastly, every
Muslim that writes a will should be aware that according to
Islamic Law, a Muslim has the freedom to will only 1/3rd of
their net assets. This fact is evident from the following hadith
of Bukhari, wherein Sad bin Abu Waqqas narrated: "The Prophet
(P.B.U.H.) came visiting me while I was (sick) in Mecca, ('Amir
the sub-narrator said, and he disliked to die in the land,
whence he had already migrated). He (i.e. the Prophet) said,
'May Allah bestow His Mercy on Ibn Afra (Sad bin Khaula).' I
said, 'O Allah's Apostle! May I will all my property (in
charity)?' He said, 'No.' I said, 'Then may I will half of it?'
He said, 'No.' I said, 'One third?' He said: 'Yes, one third,
yet even one third is too much. It is better for you to leave
your inheritors wealthy than to leave them poor begging others,
and whatever you spend for Allah's sake will be considered as a
charitable deed even the handful of food you put in your wife's
mouth. Allah may lengthen your age so that some people may
benefit by you, and some others be harmed by you." At that time
Sad had only one daughter.'"
To exercise this freedom, a Muslim will need to write a
will; especially, if one wishes to award parts of their estate
to non-Muslims or other persons not deemed immediate family
(illegitimate or adopted children); charities or friends whom
are not permitted to inherit from the testator under Islamic
law. The remaining 2/3rds must be shared across one’s “immediate
Muslim” family in order to comply with the rules outlined in the
Quran and sunnah. In instances where one has no immediate Muslim
family, the (2/3rds) portion of their estate would pass to the
Muslim Treasury. However, in South Carolina or the USA where no
Muslim Treasury exists, the remaining 2/3rds might become the
property of the state. The scholars should be consulted
regarding this scenario; because, it is opined that if there is
a Muslim state, the state will take the place of the Holy
Prophet Mohammed (P.B.U.H.); if not, the Muslim community would
inherit from the individual who has no other heir, near or
distant.
BENEFICIARIES: A South Carolina Last Will and Testament
enables one to make a disposition of property in any amount to
any person. A South Carolina last will and testament also
permits one to include their primary heirs (mother, father,
sister, brother, spouse, children), despite the fact that Islam
strictly forbids this. Islamic law clearly states that there is
no will for an heir. The evidence supporting this fact is a
hadith collected by Abu Dawud that was narrated by Abu Hurayrah
wherein Allah's Prophet (P.B.U.H.) said: "Allah has appointed
for everyone who has a right what is due to him, and no bequest
must be made to an heir."
If a beneficiary dies without accepting or rejecting a
bequest, the bequest becomes part of the beneficiary’s
estate or the right to accept or reject the bequest
passes onto the heirs of the original beneficiary
In the event it becomes uncertain as to whether or not a
beneficiary died before the testator, such as when a
beneficiary has been missing for longer than a year, the
bequest would become invalid because a beneficiary must
be alive at the time of the testator’s death for the will
to be valid
In instances where the testator and beneficiary die
together, such as in an airplane crash, where it was not
possible to determine who died first, then the bequest
would become invalid according to the majority (Hanafi,
Maliki and Shafii fiqh). However, a minority view
(Hanbali fiqh) is of the opinion that the bequest should
be awarded to the original beneficiary’s heirs who may
either accept or reject it
There is difference of opinion as to the time at which
ownership of a bequest is transferred from the testator
(or his heirs) to the beneficiary. According to the
Hanafi and Shafii fiqh the transfer of ownership is at
the time of death of the testator, but according to the
Maliki and Hanbali fiqh the transfer of ownership begins
at the time the beneficiary accepts the bequest
It is also important to note that in a scenario where a
Muslim with non-Muslim parents and siblings has been written in
their parent’s (mother or father) will as an heir according to
South Carolina guidelines, declaring that they (the Muslim in
question) is to receive specific assets, which are also to be
divided evenly between their non-Muslim siblings, the will in
question would be valid according to South Carolina law but
invalid according to Islamic law; because, a Muslim cannot
modify the shares allotted by Allah for each heir and can only
inherit from another Muslim. However, Islamic law does allow the
Muslim in question to receive from their non-Muslim parent
provided one-third or less of the non-Muslim parent’s wealth is
left to their Muslim child in the form of a gift via a legal
will. Therefore, a Muslim living in the USA is permitted to
receive from a South Carolina legal will with regard to
accepting the grants and gifts, from their non-Muslim parents. A
Muslim can also make contracts with non-Muslims in accordance
with Islamic regulations. However, if a Muslim’s non-Muslim
parents were to deprive them from a share of the inheritance and
dedicated all of the inheritance to their other children, which
happen to be non-Muslim, the Muslim child in question would have
no right to claim any of their parent’s property, as this claim
only takes the form of inheritance, which would be deemed
illegal according to Islamic law; because, as mentioned earlier,
a Muslim is not permitted to inherit from a non-Muslim.
PURPOSE: The purpose of a valid will involves the distribution
of property. A will (al-wasiyya) is a legal document created by
a testator (al-musi) to determine how their property, known as
their estate, is to be distributed to others (al-musa lahu)
listed therein, after their (testator’s) death. One’s estate
consists of their assets and property including bank accounts,
homes, land, furniture, automobiles, and securities (stocks and
bonds). The Islamic will also includes bequest and legacies,
instructions, admonishments, and assignments of rights.
Therefore, when a Muslim dies the main duties which need to be
performed involve the payment of one’s funeral expenses, the
payment of one’s debts, the execution of one’s will, and the
distribution of what remains from one’s estate among the heirs
designated in the Quran, sunnah, and shariah (Islamic law).
In view of these facts, one should also make a record of
their debts in order to guarantee the rights of their creditors,
since everything is based on what remains after all payments and
debts have been cleared. This fact is evident from the Quran in
surah al-Nisa (4:11), which reads: "The distribution in all
cases is after the payment of legacies he may have bequeathed or
debts." It is also encouraged that one should incorporate into
their will the dues of others where there is no proof, lest they
be lost or neglected; as in the case of transactions that were
conducted without the presence of witnesses or written
documentation. Moreover, if a situation arises where the debts
of the deceased exceeds the assets left, the family of the
deceased are not obliged to repay the deficit. However, repaying
the debts of the deceased is strongly recommended so as to spare
the deceased from being held to account for said debts on the
Day of Judgment. Lastly, any Muslim who writes a will should be
mindful of the following hadith collected by Ibn Majah wherein
the Prophet (P.B.U.H.) reportedly said: "A man may do good deeds
for seventy years but if he acts unjustly when he leaves his
last testament, the wickedness of his deed will be sealed upon
him, and he will enter the Fire. If, (on the other hand), a man
acts wickedly for seventy years but is just in his last will and
testament, the goodness of his deed will be sealed upon him, and
he will enter the Garden."
Additional Functions of
South Carolina Wills
Choosing a Guardian:
A South Carolina Last Will and Testament may be used to
designate a guardian for any minor child. Testators who have
minor or dependent children may use a will to name a guardian to
care for their children if there is no surviving parent to do
so. Therefore, a Muslim residing in South Carolina is permitted
to appoint a guardian for their dependent children. If a will
does not name a guardian, a court may appoint someone who is not
necessarily the ideal person whom the testator would have
chosen. Thus, it is imperative for every Muslim with children or
dependents to become aware of how the courts will address their
affairs if no will exists.
A guardian is a court appointed individual whom has been
granted legal custody over another person with the authority to
make decision on their behalf. In addition to dependent
children, individuals eighteen and older who suffer from either
a mental or physical illness/disability, geriatric old-age,
chronic substance abuse, or simply lacks adequate comprehension,
insight or competence to make responsible decisions regarding
their personal affairs, and have not executed the proper legal
documents to name an agent to make decisions on their behalf are
among those whom are in need of a guardian. Also, there is no
legal limit to the number of guardians that a child can have.
One can be appointed for the child and another can be appointed
for the child's property; however, the number of guardians
should be kept to a minimum.
SECTION 21-21-25 of South Carolina Code of Laws,
pertaining to: "Disposition of custody of minors," declares that
the father or mother (age twenty-one and under) of any child
(under age twenty-one) who is not married, may by deed executed
and recorded according to law or by a valid Last Will and
Testament (made and probated according to law) may dispose of
the custody and tuition of their child while it remains under
the age of twenty-one years to any other person, in possession
or remainder. It is also important to note that no deed is valid
unless signed by both father and mother. Also if both parents
are living and no such deed exists, except a deed to an agency
or department of the State that is authorized by law to receive
or place the custody of children, the deed will be considered
effective unless approved upon petition by a family court or
family court judge of this State. In view of this fact, nothing
in SECTION 21-21-25 of South Carolina Code of Laws, pertaining
to: Disposition of custody of minors may be construed to
abrogate, lessen, or interfere with the right and duty of a
court of competent jurisdiction at any time to transfer and
assign the custody of a child for its best interest. With this
being said, the role of a guardian is basically to provide one’s
dependents with a residence, provisions, maintenance, and any
other service pertaining to their overall well-being. Thus, in a
nutshell, a guardian is basically a support structure that one
depends on to take care of their loved-ones and affairs in the
event that they become incapable of performing said tasks.
Therefore, an ideal guardian for a Muslim would be an immediate
family member, an adult child, a parent or sibling. A testator
usually chooses a family member or friend to perform this
function, and often names an alternate; however, a Muslim
testator is restricted to only choosing from those individuals
that comply with Islamic law. Also, potential guardians should
know that they have been chosen, and should fully understand
what may be required of them; i.e., what the role of a guardian
entails.
This function is lawful under Islamic law provided that
both parents are deceased or deemed unfit under the Quran and
sunnah. However, one cannot take a child from a parent who is a
practicing Muslim and award custody to another while said parent
is still alive and capable of providing for said child. In the
case of minor children where both parents have died, custody is
awarded in accordance to the Islamic maternal hierarchy; i.e.,
the maternal grandmother, the paternal grandmother, the Full
Sister, etc. In cases of dispute, the Islamic Court will appoint
custody in its wisdom. However, in South Carolina, the state
will address this matter according to its established laws and
guidelines (Dept. of Social Services – Foster care, etc.)
Furthermore, under Islamic law the custody of a child and a
child's inheritance are often dealt with separately. A guardian
(usually male) will often be appointed to take responsibility
for the inheritance, and is entitled to reasonably dispose of
assets on account of his ward as he deems appropriate.
Guardianship is governed by the CARE OF CHILDREN ACT,
which replaced the GUARDIANSHIP ACT of 1968. Guardianship has a
number of different types of guardians, such as natural
guardians (the parents), testamentary guardians, new partners
appointed as guardians by the parents, and court-appointed
guardians. In Islamic law, guardianship falls under three main
categories; namely, natural guardians, testamentary guardians,
and guardians appointed by the court. However, the most common
guardianships are minor child guardianships, adult guardianships
and emergency proxy guardianships. In South Carolina, to begin
the guardianship proceeding a Summons; one must complete a
Petition for Finding of Incapacity and Appointment of Guardian
(Form 530PC); pay a $150.00 filing fee; complete a Petition to
Appoint a Visitor and Proposed Order; complete the Petition to
Appoint Two Designated Examiners and Proposed Order (Form
533PC); and complete a SLED report for the proposed Petitioner.
In South Carolina under the general structure of
guardianships, parents are usually classified as natural
guardians, with the mother automatically being a guardian in the
eyes of the court. However, contrary to Islamic law, the father
is not automatically a guardian. The father becomes a guardian
under South Carolina guardianship laws "only" in instances where
he was married to, or was in a civil union with the child’s
mother at any time from when the child was conceived until it
was born; namely, if the child was conceived before July 1, 2005
and he was living with the child’s mother when the child was
born; the child was conceived on or after July 1, 2005 and he
was living with the child’s mother at any time between
conception and the birth; or he was recorded as the father of
the child on the birth certificate on or after July 1, 2005.
When the father is not automatically a guardian, he can
apply to the court for it to appoint him as such. The court is
likely to grant the father’s request unless it deems that said
action is against the child’s best interests. However, according
to Islamic law, the father is always a guardian unless he
apostates from Islam or is plagued by personal issues which
would impair his ability to adequately provide for his children.
Furthermore, if the father is automatically a guardian, he can
ask the court to officially declare him as a natural guardian
since an instance may arise where he and the mother of his
children have separated and the mother does not want him to have
an active role in the children’s upbringing. In the event that a
parent desires that the other is prohibited from having an
active role in the child’s upbringing, an attorney should be
consulted about how to prove to the court that the other parent
is unfit to raise the child in question. Nevertheless, in
addition to being a guardian, under Islamic law, the father is
always recognized as a natural guardian. The consensus in Islam
is that the father is vested with the financial burden of
providing for his wife and children. This fact is evident from
Surah Al-Nisa (4:34) which reads, "(husbands) are the protectors
and maintainers of their (wives) because Allah has given the one
more (strength) than the other, and because they support them
from their means. Therefore, the righteous women are devoutly
obedient, and guard in (the husband’s) absence what Allah would
have them guard..." As a result, the father is awarded the
legal guardianship role. However, in the case of divorce, where
the mother is a practicing Muslim, she will have more right to
the rearing of her young children than their father.
In recognition of an infant’s need for female care, the
consensus is that the mother has the first choice with regard to
a child’s physical custody; because, she is recognized as the
fittest person to take care of the children. This fact is
evident from the following hadith collected by Ibn Majah that
was narrated by Amr Ibn Shu'aib: "A woman came to the Prophet
(P.B.U.H.) and said: 'Truly my belly served as a container for
my son here, and my breast served as a skin-bag for him (to
drink out of) and my bosom served as a refuge for him; and now
his father has divorced me, and he (also) desires to take him
away from me.' The Prophet (P.B.U.H.) said: 'You have a better
right to have him, as long as you do not marry again.'" With
this being said, Islam recognizes the mother as generally the
fittest person to take care of the children because of the
innate love and tenderness she feels for them resulting from the
bond she established during pregnancy, nursing, and childhood.
As a result, even after divorce, the mother is entitled to
receive custody wages from the father to help her maintain the
children. However, to reiterate from the above mentioned hadith,
the mother forfeits this right once she remarries; i.e., the
period of female custody ends once the child reaches a certain
age of custodial transfer or when she takes another husband.
Moreover, if the mother forfeits her right as primary caretaker
of the children, there will be no compulsion on her to retain
this obligation; because, unless it is determined that she
forfitted this right out of duress, the decision will be
accepted as being in the best interest of the children.
It is also important to note that although the Muslim
mother is to be awarded custody of the children upon divorce,
Islam grants the Muslim father the right to have access to his
children. The father has the right to control the education and
religion of his minor children; in addition to their upbringing
and movement. Thus, so long as the father is alive, he is the
sole and supreme guardian of his minor children; which is the
reason why he remains financially responsible for their
maintenance and education even though they may be under the care
of their divorced mother or one of her relatives. However, there
is a difference of opinion among the Islamic schools of thought
regarding the age when custody is shifted from the mother to the
father. Some schools suggest as young as age seven, when the
child begins learning how to make salat (ritualistic prayer -
worship), at puberty, or even as late as the age of marriage, as
in the case of daughters. In any event, after the determined age
of independence, the choice is up to the child as to which
parent they prefer to live with.
In summary, the father's right of guardianship extends
only over his minor legitimate children. Moreover, he is
automatically not entitled to guardianship or to custody of his
minor illegitimate children. It is also important to remember
that parents continue to be guardians even if they split up. If
both parents agree, or the South Carolina court in question
orders that only one of them will have day-to-day care for their
children, the other parent will continue to maintain certain
responsibilities of guardianship; namely, contributing to their
child’s personal development and assisting them with making big
decisions. In view of these facts, it is important for one
appointed as a guardian to be aware that their custody granted
by the courts does not terminate a parent’s relationship with
their child like an adoption would; which is an illegal practice
according to Islamic law; i.e., replacing a child’s surname and
replacing it with the surname of one intending to classify the
child in question as their own via adoption. Moreover, electing
to appoint a guardian generally does not categorize a parent as
unfit by the courts or society. Among those individuals whom it
may be deemed necessary for them to appoint a guardian are those
Muslims living in a non-Muslim land whom want to ensure that
their children are raised according to the Quran and sunnah,
Military parents that are deployed, a single parent, etc.
Any individual selected to serve as one’s guardian is also
permitted to appoint someone else to be a guardian after their
demise in a will or deed. The individual whom is appointed as
the new guardian by the current guardian is referred to as a
"testamentary" guardian. The position of a testamentary guardian
becomes a joint guardianship with all other guardians. However a
surviving parent or guardian can dispute the appointment of a
testamentary guardian in court if they are dissatisfied with
either the decision or the individual selected. An example of
this would pertain to an instance where a Muslim guardian
appoints another Muslim who is a member of a deviant sect or
deeply engaged in biddat (innovative practices not approved by
the Quran or sunnah) as a testamentary guardian; or the
testamentary guardian is one with a history of gambling
problems, substance abuse, or deviant behavior. In this event,
the Muslim parent or other guardian can refer the matter to the
court in question in an attempt to have the unwanted guardian
removed. This point is evident from SECTION 21-21-35 of South
Carolina Code of Laws, pertaining to: Persons against whom
disposition of custody is valid, which declares that the
disposition of the custody of the child as provided in Section
21-21-25 is effective against any person claiming the custody of
the child as guardian. SECTION 21-21-45 of South Carolina Code
of Laws, pertaining to: Action by custodian for recovery of
children and damages, declares that any person to whom the
custody of any child has been so disposed or devised may
maintain an action against any person who wrongfully takes away
or detains the child for the recovery of the child and may
recover damages in the action for benefit of the child.
Moreover, electing to pursue legal assistance to correct the
dilemma is imperative because although a testamentary guardian
does not have the role of providing day-to-day care for the
child, they can apply to the Court for a parenting order that
would legally grant them this right.
In the event that joint guardians are unable to agree on
an issue, any of the guardians in question can ask the Family
Court to arrange free and confidential counseling for them in an
effort to resolve the dispute. However, if counseling is
ineffective, the guardians can apply to a Family Court for
further instructions. If this is the case, Family Court can make
any ruling that it deems necessary with regard to what is in the
best interest of the child. The court in question will also
grant the child a reasonable opportunity to voice their opinions
and will take the child’s views into account. It is also
important to note that under Islamic law, the father has full
power when it comes to making a testamentary appointment of
guardian. In the absence of the father and his executor, the
grandfather has the power of appointing a testamentary guardian.
With this being said, it is clear that the mother has no power
with regard to appointing a testamentary guardian for her
children. However, there are two cases wherein the mother is
permitted to appoint a testamentary guardian for the property of
her minor children. The first, instance is when she has been
appointed as a general executrix by the will of the child's
father, wherein she can appoint an executor by her will. The
second instance is in respect to her personal property. The
mother can also be appointed a testamentary guardian by either
the father or grandfather whenever they are permitted to
exercise this authority. Even the appointment of a non-Muslim
mother as testamentary guardian is permissible.
South Carolina law also permits the spouse of a person
with disabilities or parent of an incapacitated person to make a
testamentary appointment of a guardian in their will. The
testamentary appointment by a spouse or parent comes into effect
after the incapacitated person and their caregiver or the
nearest adult relative has received a twenty days written notice
and the guardian files acceptance of appointment in the court.
When both a spouse and a parent appoint guardians in their
wills, the appointment of the spouse has priority. Testamentary
guardianship also permits a parent with a new partner (which is
an illegal relationship in Islam) who has been sharing day-to-
day care of the children for at least a year, the opportunity to
appoint the new partner as a guardian of the children in
question under the Care of Children Act. The Act pertains to a
parent and their new partner, whom are married, in a civil
union, or in a de facto relationship. Moreover, in instances
where the other parent of the children is still living, the ACT
requires both parents to make the appointment of the new partner
as guardian. Also, in instances where the new partner in
question cannot be appointed as a guardian due to the
restrictions contained in the Care of Children Act such as cases
where the new partner has been involved in Family Court
proceedings over day-to-day care (custody) or contact (access),
or had a domestic violence protection order made against them,
they are permitted to apply to the Family Court to have it make
the appointment. For more details, visit the Family Court
website at www.justice.govt.nz/family.
A child age sixteen or older in the state of South
Carolina can ask the Family Court to intervene and give its
permission, which would overrule the guardian’s decision in
instances where they disagree or is unhappy about an important
decision that their guardian or guardians have made; such as
denying them the opportunity to get married. However, to
reiterate, children ages 16 or 17 must obtain written permission
from their guardian before they can get married or enter into a
civil union or de facto relationship; which are illegal
relationships in Islam. It is important to note that in South
Carolina a parent’s guardianship status does not grant them
unlimited freedom to make decisions for their children; because,
the law recognizes that as a child approaches adulthood their
maturity and level of understanding entitles them to make
decisions for themselves regarding particular issues. As a
result, the child in question can ask the Family Court to give
its permission, which could then overrule the guardian’s
decision. However, in certain instances the Family Court’s
ruling in favor of the child can do the child in question a
great disservice; such as overruling a Muslim guardian’s
decision to deny the child in question the right to engage in
dating or to marry someone that is not acceptable under Islamic
law. In this instance, the Family Court’s ruling in favor of the
child could result in the child in question committing
fornication or contracting an illegal marriage.
A South Carolina Family Court can also deprive a parent of
guardianship or remove a testamentary or court-appointed
guardian whenever a parent/guardian of a child, a partner of a
parent of a child (whether they are married, in a civil union,
or in a de facto relationship, as long as they have been sharing
day-to-day care of the child; a child’s grandparent, aunt,
uncle, brother or sister, including half-brothers and half-
sisters, have applied to the court for it to perform this
action. However, it should be noted that the court in question
will not deprive a parent of guardianship unless it is certain
that the parent in question is for some grave reason unfit to be
the guardian or that they are simply unwilling to be a guardian.
With regard to deciding whether to remove a testamentary
or court-appointed guardian, the only issue for the court is the
child’s welfare and best interests. Therefore, if one wishes to
apply to the court to be appointed as a guardian, or if an
application has been made to the court to deprive one of
guardianship, it is imperative that they obtain legal advice
regarding these matters. It is also important for one pursuing
guardianship to become familiar with SECTION 21-21-55 of South
Carolina Code of Laws, pertaining to: Possession of property
conveyed, devised, or bequeathed to child, which maintains that
any person to whom the custody of any child has been so disposed
or devised may take into their possession to and for the use,
support, and education of the child all property, real and
personal, which by deed or will has been conveyed, devised, or
bequeathed to the child, until said child attains the age of
twenty-one years or for a lesser time as may be fixed by the
deed or will, and may receive and receipt for the proceeds of
any life insurance taken out by the parent for the benefit of
the child and do all acts in relation to the child which a
guardian appointed according to law might do. The family court
may, in its discretion, require a return of the property and an
annual accounting for the rents, profits, and income of the
property.
It is also important to note that a Muslim residing in
South Carolina with the objective of leaving bequest for their
children is permitted to appoint a guardian under the Uniform
Transfers to Minors Act. One can utilize the Uniform Transfers
to Minors Act to addresses property management so that the
probate court does not need to appoint someone to address
matters on their behalf. What is more, guardianships for minors
are not under the authority of the Probate Court; rather, under
the jurisdiction of the Family Court. However, in order to
avoid the Probate Court appointing a guardian for one’s adult
dependents, one should execute the proper legal documents, such
as a will, Health Care Power of Attorney, and/or a Durable Power
of Attorney. The choice of guardianship often affects other will
provisions; because, the testator may want to provide financial
support to the guardian in raising surviving children.
Nevertheless, if the capacity of the adult changes or the
incapacitated person in question passes away, the guardian in
question should file a final guardian report and Petition for
Discharge (Form 571PC).
A hearing may be held before the guardianship is terminated to
determine capacity. If death is the reason for termination then
a death certificate should be provided.
To reiterate, an ideal guardian for a Muslim would be an
immediate family member, such as an adult child, a parent, or
sibling, etc. However, if there are no immediate family members
then the Court will look to other relatives or interested
individuals, such as a neighbor or close friend. What is more,
under certain circumstances, the Court may even look into the
possibility of appointing an institutional conservator; which is
a court appointed individual or entity that handles the
management of financial affairs or property. However, in view of
these facts, it is important to note that a Muslim residing in
South Carolina must exhaust every effort to appoint only
individuals that the dependent in question is permitted to
socialize with in an un-chaperoned environment; such as those
individuals whom it is illegal to contract a marriage with.
Conservatorships in South Carolina fall under two main
categories; namely, those involving minors receiving funds
exceeding $10,000 from an inheritance; insurance proceeds, other
beneficiary designated funds, personal injury settlements or
sale of real estate, and those involving individuals over the
age of eighteen that suffer from a mental/physical illness or
disability. Additional factors requiring the appointment of a
conservator include mental deficiency, advanced age, chronic
substance abuse, or any other cause to the extent that an
individual lacks sufficient understanding, insight, or capacity
to make responsible decisions concerning their financial
affairs. It is also important to note that all of these factors
are in the event that the proper legal documents have not been
executed, such as a Durable Power of Attorney naming an agent
for decision-making. With this being said, just as the matter
pertains to guardians, an immediate family member, such as
spouse, adult child, parent or adult sibling, would be an ideal
conservator. Also, as guardianships are handled in instances
where there are no immediate family members, the Court
addressing the issue of conservatorship will look to other
relatives or interested individuals, such as a neighbor or
friend of the incapacitated adult or minor. Nevertheless, to
reiterate, it is important for every Muslim to remember that one
must exhaust every effort to appoint only individuals that one’s
dependents are permitted to socialize with in an un-chaperoned
manner. Lastly, the need for financial or legal expertise may
lead the Court in question to look for corporate entities,
accountants or lawyers to serve in this capacity.
It is therefore imperative for Muslims involved in matters
pertaining to a conservatorship proceeding for a minor to note
that due to a recent South Carolina policy change, the Court in
question will appoint a Guardian Ad Litem for all incoming
cases. In addition, a Summons, Petition for Appointment of
Conservator (Form 540PC), a $150.00 filing fee, a Proposed
Guardian ad Litem/Counsel Order [minors 14 and older must
consent to the proposed counsel] (Form 532PC), a certified copy
of the birth certificate for the minor, a SLED report, a credit
report for the proposed Petitioner, a copy of the proposed
conservators drivers license, and a copy of the proposed
conservators social security card are required by the Courts for
conservatorship proceeding for a minor. Furthermore, to begin a
Conservatorship proceeding for an adult, the Court requires a
Summons; Petition for Appointment of Conservator (Form 540PC);
$150.00 filing fee; Petition to Appoint Two Designated Examiners
and Proposed Order (Form 533PC); Proposed Guardian ad
Litem/Counsel Order (Form 532PC); SLED report and Credit report
for the proposed Petitioner, a copy of the proposed conservators
driver’s license, and a copy of the proposed conservators social
security card.
It should also be noted that in order to obtain a Sled
Report for either of the above mentioned situations, one must
make a written request for the criminal report from SLED at P.O.
Box 21398 Columbia, SC 29221-1398. One is also required to
provide SLED with the Proposed Guardian’s full name including
maiden and alias names; date of birth, sex, race, and social
security number. Moreover, a $25.00 business check, certified
check, money order, or cashier's check, and a self addressed
envelope must be included for each search. One also has the
option to pay for each search with their credit card and make an
internet request at www.sled.state.sc.us.
A credit report on the other hand can be obtained by
filling out the credit history report written request at
Equifax, P.O. Box 105252 Atlanta, GA 30348-5252, or by calling
1-800-685-1111. Equifax’s emergency fax request line can also be
accessed by dialing (770) 375-3150. Equifax also offers the
option to contact them via the internet at www.equifax.com.
A second credit reporting organization is TransUnion,
which can be contacted by written request at P.O. Box 1000
Chester, PA 19022, or by calling them direct at 1-800-888-4213.
TransUnion can also be contacted via the internet at
www.transunion.com. TransUnion requires one to provide their
agency with the proposed conservator’s driver's license number,
social security number and date of birth.
Once a conservator is appointed, within thirty days they
are required to file an Inventory and Appraisement (Form 550PC).
The conservator in question is also required to annually report
(Form 560PC) to the Court, along with the income, approved
disbursements, account statements, and receipts of expenditures.
The Court in question is required to approve expenditures from
the restricted accounts once the conservator has filed the
appropriate Petitions for Expenditures along with supporting
documentation. The conservator in question should also inform
the Court as to the whereabouts of the incapacitated
adult/minor, and the Court has the authority to appoint visitors
and guardian ad litems to check on the incapacitated adult or
minor.
These actions are methods the Court exercises to make
certain that the conservator in question is performance in the
best interest of the protected person. Lastly, Letters of
conservatorship and orders terminating conservatorship, must be
filed and recorded in the office where conveyance of real estate
are recorded for the county in which the protected person
resides and or owns real estate.
In view of these facts, an individual with an interest to
petition to be a conservator should seek the assistance of a
lawyer; because, due to the legal complexities of the Summons
and Petition, the requirements of proper legal service on all
interested parties including proper service on the alleged
incapacitated adult, and the need for proper notice of the
hearing to all interested parties, the Court in question
recommends that the proposed Petitioner have an attorney. The
State law specifies the venue; i.e., where the proceedings are
to take place. The venue for conservatorship proceedings will be
in the county where the incapacitated person resides. Even if
the person is or is not a South Carolina resident the venue can
be in any county where the person in question owns property. What
is more, an attorney is needed because they are appointed as the
Guardian Ad Litem and is involved in the intricate details of
the proceeding. Moreover, due to a recent policy change, the
Court in question now selects the Guardian ad Litem for all
incoming cases from a rotating list of attorneys in good
standing with the South Carolina Bar that are willing to serve
in this capacity. Also, due to the intricate nature of the
proceedings and the allegations that the adult in question is
incapacitated and cannot handle their financial affairs, the
Probate Court deems it necessary to appoint an attorney for the
alleged incapacitated adult. It is also important to note that
an attorney is always needed to represent the interest of a
minor; serving a dual role as both Guardian ad Litem and Counsel
for the incapacitated adult and minor. The attorney in question
is also required to investigate the need for the conservatorship
as well as the proposed conservator's ability to adequately
serve the best interest of the incapacitated person.
A surety bond, which is similar to an insurance policy for
the minor or incapacitated person in question, conditioned on
the conservator carrying out their duties faithfully and
appropriately, is required for the appointment of a conservator.
A surety bond is almost always required for adults with ongoing
monthly expenditures. Thus, to alleviate the annual expense of
the surety bond, a South Carolina Probate Court often allows the
conservator to open a restricted brokerage account. As a result,
the financial institution that accepts the conservatorship funds
in a restricted account is required to execute a Restricted
Account Agreement with the Court in question. The Restricted
Account Agreement states that funds will not be disbursed and
assets will not be sold without an Order from the Court in
question. Both the Conservator and the financial institution are
obligated to agree to the terms set forth in the Restricted
Account Agreement.
In any event, one’s guardianship automatically terminates
when a child reaches the age of majority - sometimes 18,
sometimes 21; marries, or enters into a civil union or de facto
relationship. Whereas one’s conservatorship status terminates
once the minor in question reaches majority, when the capacity
of the adult in question changes, or upon the death of the
incapacitated person. In any of these cases the conservator is
expected to file a final accounting and Petition for Discharge
(Form 571PC). Also, when death is the reason for terminating
one’s conservatorship status, then a death certificate should be
provided along with proof that a Personal Representative has
been appointed. The Court will then issue an Order for the
transfer of assets to either the minor that has reached
majority, to the individual that is no longer incapacitated, or
to the Personal Representative of the decedent's estate.
Moreover, a Receipt and Release shall be filed within ten (10)
days of the release of assets. Also, a hearing may be held
before the assets of the estate are distributed. Lastly, letters
of conservatorship, and orders terminating conservatorships
shall be filed and recorded in the office where conveyances of
real estate are recorded for the county in which the protected
person resides and in the other counties where the protected
person owns real estate. Nevertheless, from then on, any property
left to a child is exclusively owned and controlled by the child
in question. Therefore, leaving a significant amount of assets
in the form of cash to a child can be an unwise choice. With
this being said one should consult an attorney and determine if
it would be advantageous to appoint a guardian over their
child's property or would creating a trust be in the child’s
best interest.
CREATING A TRUST:
A trust is a fiduciary relationship with respect to
property where by a trustee holds legal title for the benefit of
another. The Islamic waqf system in many ways resembles a trust
in that it is based on the idea of someone gifting to a third
party specific property to be held for the benefit of others. A
trust is ideal if one does not want to have a conservatorship
proceeding wherein one’s family will have to go to court if they
disagree.
A South Carolina Last Will and Testament can enable one to
create a trust and designate a trustee to handle their estate
(property left after death) on behalf of their children or other
beneficiaries. A trust, particularly a discretionary trust,
enables one to collect, arrange, and manage their assets during
their lifetime. The assets then pass to one’s beneficiaries upon
their death. A trust achieves many of the same ends as a Last
Will and Testament; however, a trust serves as a tax-saving
device which enables one to avoid excessive estate expenses. If
one’s Last Will and Testament is used to transfer property after
their death, there will be a probate. However, trusts are not
required to go through probate, which can save one a small
percentage of the total value of their estate.
Title 62 - South Carolina Probate Code SECTION 62-6-101.
Definitions. (14) mandates: "Trust account" means an account in
the name of one or more parties as trustee for one or more
beneficiaries where the relationship is established by the form
of the account and the deposit agreement with the financial
institution and there is no subject of the trust other than the
sums on deposit in the account; it is not essential that payment
to the beneficiary be mentioned in the deposit agreement. A
trust account does not include a regular trust account under a
testamentary trust or a trust agreement which has significance
apart from the account, or a fiduciary account arising from a
fiduciary relationship such as attorney-client.
It is therefore important to highlight that a trust
account does not include a regular trust account under a
testamentary trust (will trust) or a trust agreement. A
testamentary trust is a trust that is not created until after a
testator's death, and is therefore irrevocable; because, since
the testator has died, it will be physically impossible for them
to have the ability to amend or revoke the testamentary trust. A
testamentary trust can be established under one's Last Will and
Testament, Revocable Living Trust, or Irrevocable Life Insurance
Trust.
There are four parties involved in a testamentary trust:
The one (grantor or trustor, but is generally referred to
as the settlor) who stipulates that the trust be formed,
generally as a part of their will
The trustee (or Executor), who is generally named in the
will, is responsible for carrying out the terms of the
testator's Last Will and Testament. If not named in the
will, they will be appointed by the probate court which
handles the will
The beneficiary(s) who will receive the benefits of the
trust in question
The actual trust itself
STRUCTURING A TRUST:
It is imperative that a Muslim living in South Carolina
consider the practical Islamic guidelines with regard to how the
trust is actually structured. In theory, there are various ways
one can structure a trust to achieve the underlying objective
while also remaining shariah compliant.
Wali (guardian) of the trust
The Settlor can appoint one they consider an ideal wali,
whose authority should be held in a fiduciary capacity while
acting as the protector of the trust. This individual should
essentially ensure that all activities of the trust are in
compliance with Islamic law. Furthermore, in order to ensure
that the Trustees observe the requirements of both Islamic and
state law while administering the trust, the settlor should
prepare a letter of wishes. However, it is important to note
that as a matter of practicality, where the trust is
administered from an abroad jurisdiction this option may be
inconvenient in practice.
Type of Trust - Discretionary
A Discretionary Trust (Family Trust) is established by a
Deed between the settlor who sets up the trust and a Trustee. In
a discretionary trust, the Trustee has the power use their
judgment when deciding whether any sum is to be paid to
beneficiaries, and if so, how much. The heads of a family are
generally appointed as a trustee company's directors; and in
this way they are able to control the exercise of the trustee's
discretionary powers.
Revocable/Irrevocable Trust structure
An important consideration is the issue of whether the
trust should in essense be revocable or irrevocable. When
electing a revocable trust, careful thought must be given to the
interests of the beneficiaries under the trusts; because, the
parties involved could actually deviate from the rules of
established heirs outlined in the Quran, resulting in an
unsupported couse of action. In summary, there are a variety of
ways in which the framework of the trust can be adapted flexibly
to ensure that one's wishes are carried-out; however, carefull
planning will be required.
Regarding Revocable Living Trust, some Trust advocates
preach against wills, declaring that Trusts are a better
instrument. Nevertheless, even if one has a Revocable Living
Trust, they are required to create a will. However, in many
instances, a will is all that is required. Regardless of the size
of one’s estate, a will should form the foundation of their
estate plan. In instances where one has a Revocable Living
Trust, it is ok if their will is very simple. Nevertheless, a
will is still an important part of one’s estate plan, and it
should not be considered as being unimportant simply because a
Revocable Living Trust has been created. In all fairness,
something is wrong if one has a Revocable Living Trust and does
not possess a will. When one has a Revocable Living Trust, they
create what is referred to as a "Pour-Over Will." A Pour-Over
Will acts as a safety net for one’s Trust. One’s Last Will and
Testament will actually "tie" together the Revocable Living
Trust, tax plan, and other facets of their estate plan.
In instances where one has minor children or an
incompetent family member, the will in question should at least
name a guardian/conservator. The purpose of a Revocable Living
Trust is to allow property to be transferred through the Trust
rather than through the will, thus avoiding probate. It is also
important to note that some attorneys will flat out say that
Revocable Living Trusts do not work and should not be used in
the vast majority of the cases. The reason being, drafting a
will in the manner employed by most lawyers does not make a lot
of money for them up front, but once a will is written, the
testator and their heirs are psychologically "locked" into the
lawyer in question. As a result, a lawyer can benefit
financially because the party in question will probably do other
legal work with them. Unfortunately, there are even instances in
which a lawyer will take advantage of one’s family during the
probate process. Lawyers will also draft a great deal of wills
at inexpensive prices in order to get the probate business;
because, their financial success is guaranteed by the probate
process.
Fundamentally a trust is formed by a token donation; such
as 10,000 USD, and thereafter transferring properties etc., into
the name of said trust. The donor then specifies specific
beneficiaries who will become the eventual owners of the trust
once it is dissolved. In this context, the donor neither intends
on immediately donating their property, nor do they really wish
to make the specified beneficiaries their immediate owners. From
the standpoint of Islamic law, there is no problem with regard
to what clauses may be written into the trust deed, provided
that it does not constitute a violation of any aspect of Islamic
law; i.e., involvement in interest, gambling, intoxicants,
pornography, etc. However, as it pertains to Islamic law, the
trust in question is non-existent, and will be regarded as part
of the donor’s estate upon their death; despite the fact that
the trust deed is a valid legal document according to South
Carolina law.
The trust in question is non-existent because the intended
recipients will not take actual possession until after the donor
has died. The same would apply even if the donor issued the
items in question as he was dying (maradul-maut); because in
this instance, the transaction would be regarded as a will. In
order for the transaction to be valid under Islamic law, the
donor would have to issue a particular item and witness the
intended recipient take actual possession prior to their demise.
Thus, if a house was to be part of an Islamic trust, the owner
would have to donate the house to the intended recipient, move
out, hand over the keys, and sign over the title to the new
owner. The new owner could then allow the former owner to remain
in the house until the time of their demise. However, even
though the former owner will remain in the house, it is
important to note that every detail pertaining to the house will
be at the new owner’s discretion.
If the donor dies with the situation remaining unchanged,
the donated property will transfer upon their heirs according to
the laws of inheritance. The evidence for this view is a hadith
collected by Bukhari, narrated by 'Abida, who reports: "If he
dies and the gift has been set aside while the one who was given
it was alive, then it is for his heirs. If it was not set aside,
it is for the heirs of the one who gave it.' Al-Hasan said, 'No
matter which one dies before, it is for the heirs of the one to
whom it was given if it has been given to the messenger.'" With
this being said, all the donor’s eventual heirs, as well as
those specified as beneficiaries to the trust in question must
be informed of the true reality of the trust. Therefore, it is
best if the true position of the trust be documented and all the
heirs and beneficiaries be required to sign the document in
question, stating that they have been informed about the fact
that the trust is non-existent in terms of Islamic law, and that
the donor is the sole owner. Consequently, if one intends to
form a trust that is valid according to Islamic law, it is
imperative that they seek guidance from a scholar/expert who is
experienced in this field before any trust deed is finalized.
Nonetheless, whatever the situation may be, the reality of the
trust must be clearly known and recorded in order to enable the
executors to wind-up the estate correctly.
Below is a listing of important questions one might have
regarding South Carolina's new Trust code; taken from Answers to
95 Questions You Should Have About the New South Carolina Trust
Code, By Evans, Carter, Kunes & Bennett. According to the
authors, "The new South Carolina Trust Code (SCTC) was passed by
the South Carolina General Assembly and signed into law in 2005.
It takes effect on January 1, 2006, and applies retroactively to
all trusts. Modeled on the Uniform Trust Code (UTC), which was
promulgated by the National Conference of Commissioners on
Uniform State Laws, the SCTC was the result of the efforts of
the SCTC Study Committee of the Probate, Estate Planning and
Trust Section of the South Carolina Bar. For the most part, the
SCTC is a default statute. The absence of case law and the
absence of statutes left practitioners dealing with uncertainty
in many areas of the common law. The SCTC introduces new
concepts and makes significant changes to our laws on trusts.
The SCTC is codified in Article 7 of Title 62 of the South
Carolina Code. There are eleven sections to the Act, and it
includes the official UTC comments as well as South Carolina
comments. Attorneys, judges, corporate and individual trustees,
and trust beneficiaries and their duties and rights will soon be
guided and governed by the SCTC. Herewith are answers to 95
questions we should all have about the new law."
The questions I have included are the following based on
their relevancy to the objective of this book:
INSURANCE AND PENSION:
If one’s insurance or pension policy is written in a trust
of nominated beneficiaries, upon one’s death, these items will
pass outside of one’s Islamic will directly to one’s designated
beneficiaries. All insurance/pension policies will pass outside
of one’s Islamic will; because, these items are not regarded as
one’s wealth due to the fact that they will not be in one’s
possession at the time of their death. However, in the case of a
pension, since this item is accrued from years of service, in
principle, the retirement pension scheme constitutes Mudaraba
(The first party, the rabb al-mal, contributes the capital to
the mudaraba and does not get involved in its management, while
the second party, the mudarib, brings no funds but only his
expertise and entrepreneurial skills to manage the mudaraba.),
so the proceeds from said transaction will become the right of
all the legal heirs. Furthermore, even if one dies before
obtaining their pension, the value of said item must be included
in their estate.
According to a June 30, 2003 article in Arab News Islam,
"Pension plans are generally acceptable. They work on
practically the same basis as life insurance, with some
differences. Pension plans are operated by most, if not all,
Muslim countries. They are also applicable to Al-Azhar and other
Islamic universities. Normally pension plans provide support to
a retired employee, his wife, and children below a certain age.
The idea is that after that age, which is normally 21, children
should be able to support themselves. Pension is a benefit given
to those who are at a stage of life when they cannot support
themselves. This is why it is paid to a retired employee and his
wife, or spouse. It is not part of a person’s savings, unless
the plan specifies that. As such, it is not treated as part of
one’s estate, which is divided according to the law of
inheritance."
It should also be noted that any insurance policy that is
"required" for a South Carolina resident or employee is lawful
according to Islamic law. On the contrary, Life insurance
policies are unlawful if not required by State law or a
workplace agreement. However, for those Muslims who engage in
such policies, upon their death, the funds from said policies
pass directly to the beneficiary named within the document. One
cannot inherit funds from their own Life insurance policy; as a
result, one’s spouse is generally the primary beneficiary of the
policy.
One can also utilize a Letter of Wishes to change the way
that an asset is held so that it pays directly into their
estate; such as, changing one’s pension fund from directly
paying their beneficiaries to paying into their estate.
Basically, one can include a Letter of Wishes for each asset
that passes outside of their will. This Letter will be addressed
to the beneficiary of that asset. It must be signed and dated by
the Testator and can be either written or type. It does not
require witness signatures. Unlike the will, the Letter of
Wishes does not become a publicly available document upon death
and therefore should be kept with one's Last Will and Testament.
The Letter of Wishes can also request that a particular
beneficiary include their share of the asset as part of the
testator’s estate. This ensures that the asset to be distributed
will be done so according to Islamic law. This fact is evident
from SECTION 62-2-512 of South Carolina Code of Laws pertaining
to: Separate writing identifying bequest of tangible property,
which maintains: "A will may refer to a written statement or
list to dispose of items of tangible personal property not
otherwise specifically disposed of by the will, other than
money, evidences of indebtedness, documents of title (as defined
in Section 36-1-201(15); i.e., Document of title" includes bill
of lading, dock warrant, dock receipt, warehouse receipt or
order for the delivery of goods, and also any other document
which in the regular course of business or financing is treated
as adequately evidencing that the person in possession of it is
entitled to receive, hold and dispose of the document and the
goods it covers. To be a document of title, a document must
purport to be issued by or addressed to a bailee and purport to
cover goods in the bailee's possession which are either
identified or are fungible portions of an identified mass.),
securities (as defined in Section 36-8-102(1)(A)), and property
used in trade or business. To be admissible under this section
as evidence of the intended disposition, the writing must either
be in the handwriting of the testator or be signed by him and
must describe the items and the devisees with reasonable
certainty. The writing may be referred to as one to be in
existence at the time of the testator's death; it may be
prepared before or after the execution of the will; it may be
altered by the testator after its preparation; and it may be a
writing which has no significance apart from its effect upon the
dispositions made by the will." However, it is important to note
that a Letter of Wishes is not legally binding on one’s
beneficiaries; i.e., after one’s demise, there is no way to
guarantee that their heirs will comply with the agreement.
Nevertheless, as a backup plan, a testator can have their
executor reiterate to the beneficiaries in question the
importance of fearing Allah and honoring the testator’s final
wishes. With this being said, as detailed on the
ISLAMTOMORROW.com document: Last Will and Testament - Important
Notes - Point #6 - Case of more than one wife, every Muslim male
writing a will should reflect upon the following point of the
document which reads: "Although I believe that the legal ban in
America and other Western countries on marrying more than one
wife is wrong and instead, I call for regulating plural
marriage, in a way that is consistent with Shari’ah, I do not
condone any violation of the law of the land. But since there
are a few Muslim men who have more than one wife without
registering the second marriage or both marriages, I feel a need
to protect the rights of unregistered wives in the estate. In
such a case I suggest personalizing the Last Will and mentioning
the names of the wives, registered or not, along with a
statement that requires the distribution of any share of a wife
in the Schedule of Mawarith equally between the surviving
wives."
APPOINTING AN EXECUTOR:
A South Carolina will may also be used to name an executor
(al-wasi) to handle a testator's property and affairs from the
time of their death until an estate is settled. Ideally, a
testator should select an executor who is a young practicing
Muslim; preferably, their adult son or daughter. An executor
also may feel inclined to appoint their spouse or their best
friend. However, at least one of the selected people should be
outside of the family circle. This is so that if there is a
family tragedy where members of the same family die together, at
least someone else would be at hand to execute the will. A
testator should also produce a letter to their executor that
generally explains what the job entails. What is more, a
testator’s will should leave detailed instructions for the
executor, such as directives to pay all debts owed; especially,
those debts owed to Allah; such as paying Zakat, feeding the
poor to compensate for one’s inability to fast, paying what
remains of an unpaid Mahr (dowry), etc. The proof for this
directive is the hadith of Bukhari, narrated by Aishah, wherein
she quoted Allah's Messenger (P.B.U.H.) as saying, "Whoever died
owing fasts, his guardian should fast on his behalf." Explicit
details should also be applied to one’s final illness, funeral,
and burial expenses; i.e., that the expenses for the necessary
funeral requirements, from the time of death until the
completion of the burial, be drawn as a first charge from the
estate in question.
It is also advantageous to select an Appropriate Executor
and an Alternate Executor. For convenience purposes, these
individuals should reside in the same state; because, it could
become quite expensive for one’s executor to travel back-and-
forth to manage the estate in question. Moreover, some states
require that out-of-state executors post a cash bond, even if
this requirement has been waived in the will in question. The
executor of a will is therefore, the manager of the estate
appointed by a testator.
The executor has to carry out the wishes of a testator
according to Islamic law regarding the interests of their
children and estate. The authority of the executor should also
be specified; i.e., it should be stated that the executor may
not deviate from Islamic law by modifying the inheritance
guidelines outlined in the Quran, sunnah, and shariah. It should
also be specified that despite living in a non-Muslim country,
the executor shall carry out their duties as closely to Islamic
law as legally possible for the state of South Carolina.
If a Muslim dies with a valid Last Will and Testament,
upon their death, their executor will need to apply for a grant
of Letters of Probate, which is a legal document which states
that one’s executor is authorized to distribute the assets of a
testator’s estate in accordance with their Last Will and
Testament. Once the will is probated, the document is
authenticated with the probate court in the county wherein the
deceased resided at the time of their death, and is held as
valid in the eyes of the court. The executor then receives
Letters Testamentary, a document that grants an executor access
to the assets of the testator’s estate and the authority to
handle their affairs. What is more, if the executor wishes to get
the Letters Testamentary issued without going to see an
attorney, a copy of the valid Last Will and Testament and the
testator’s death certificate must be presented to the Court
Clerk's office. The Clerk will then open a probate file for the
estate of the deceased and the Letters Testamentary will be
issued by the Court office. Once the Letters Testamentary has
been issued, the executor should take it to the testator’s bank
or other financial institution so that the funds held in a bank
or investment account may be released. These documents, with the
appropriate death certificate are often the only license an
executor needs to marshal and dispose of the testator's estate
in the name of the estate itself. It is also a good idea to make
several copies of the documents and have them certified so that
they can be presented to each institution.
The executor of a will is also responsible for locating
and securing all the assets forming part of the testator’s
estate. The testator’s beneficiaries must also be contacted.
However, before any of the named beneficiaries can receive their
inheritance, the executor must clear the testator’s debts.
Therefore, the executor must notify the testator’s creditors and
inform them that the testator has died; in addition to allowing
them to make a claim for payment. With this being said, legal
notices to creditors may need to be published, and any creditors
wishing to make a claim against the estate shall be given a
specific period of time to do so. The executor also pays any
estate taxes by authority of the Letters Testamentary. A final
income tax return must also be prepared on behalf of the
testator. The executor then arranges for the funds to be
distributed to the estate's beneficiaries according to the
instructions set out in the will. Lastly, it is advantageous
that the executor acquire assistance from an attorney acting for
the estate to efficiently perform their executor duties.
In instances wherein a deceased Muslim did not leave a
Last Will and Testament, a qualified candidate would have to
apply for a Letter of Probate to control the assets of the
estate. But, in this case, it is a little more complicated. In
the event this happens, one’s family members will need to reach
an agreement and appoint an Administrator who must apply for the
grant of Letters of Administration which is an instrument in
writing, granted by the judge or officer having jurisdiction and
power to granting such letters. Thus, Letters of Administration
actually names an Administrator; thereby granting the individual
in question full power to administer the goods, chattels,
rights, and credits of the deceased in the county or district
wherein said judge or officer has jurisdiction. Moreover,
Letters of Administration also grants a newly appointed
Administrator the authority to ask, collect, levy, recover, and
receive the credits of any kind that the deceased either owed or
was entitled. As a result, the Administrator would be required
to pay the debts in which the deceased stood indebted,
pertaining to goods, chattels, rights, and credits according to
the rate and order of law.
It is also important to note that one can also have a Last
Will and Testament with Letters of Administration if none of the
persons named as executor in the Last Will and Testament is able
or willing to serve. In which case, the Court appoints an
unnamed-in-the-Will Personal Representative and issues Letters
of Administration with the Last Will and Testament Annexed. In
view of these facts, every Muslim living in a non-Muslim land
should take their chosen executor(s) and meet with a scholar at
a local masjid/mosque in order to ensure that all parties
(testator and executor) are thoroughly educated about their role
and responsibilities.
Lastly, the executor should contact the Islamic scholar at
the time of the testator’s death in order to consult with him in
order to ensure that the estate in question is accurately
divided. It is also important to note that if a Muslim testator
fails to name an executor, the Probate Court will appoint
someone to take on the job of winding up their estate. As a
result, the Probate appointed representative probably might
deviate from one’s directives of complying with Islamic law.
Hanafi and Maliki fiqh state that the executor should be
trustworthy and truthful; the Shafii fiqh state that the
executor must be just. The Hanafi fiqh considers the appointment
of a non-Muslim executor to be valid. The testator may appoint
more than one executor, male or female. The testator should also
state wheter each executor can act independently of the other
executor regarding the affairs of the Last Will and Testament in
question.
A copy of an Overview of Estate Settlement in South
Carolina by Albert C. Todd is listed below to provide the reader
with further information pertaining to the subject at hand.
INSTRUCTIONS FOR AN EXECUTOR:
For those Muslims living in non-Muslim lands, in order to
avoid having one's body desecrated by un-Islamic funeral
practices such as cremation, embalming, etc., one must specify
how their body is to be handled; such as: Who is to and who
cannot prepare a Muslim’s body for janaza. One must ensure that
the rights of their descendents/ascendants are not violated by
conducting an extravagant funeral. (the deceased should be
buried in the most inexpensive manner possible; i.e., not
borrowing money for funeral expenses in order to purchase
extravagant fabrics for shrouding the body, or even a casket,
unless the use of a casket is required by the state - county
where the deceased resided/will be buried.
Emphasis should also be placed on locating an Islamic cemetery
or green cemeteries if one does not have access to a masjid
(mosque-Islamic center). Instructions should be left as to where
the body is to be buried; especially, if one is a recent convert
and is not a member of a community, or lives in an area where
Muslim cemeteries are not available. Therefore, in instances
where Muslim cemeteries are not available one should purchase a
parcel of land for the purpose of burial or pursue the next best
option within their means (Allah puts no more on a soul than
what it can bear).
An executor must also ensure that a basic grave marker is
positioned over the testator’s preferred choice of grave (No
tombstones or erected shrines, etc.). It is also recommended
that a testator leave instructions for their executor to invite
those non-Muslims present at the Janaza to Islam and reiterate:
"The shahadah (declaration of faith to become a Muslim or
personal testimony that there is no God but Allah, who is one -
totally unique from his creation, and that Mohammed the son of
Abdullah and Aminah, born in Mecca Saudi Arabia in the 6th
century, is the last of Allah’s prophets and messengers, who
brought the universal message of tawheed - oneness of Allah –
and to only worship Allah); then proceed with the next item on
one’s list of Islamic obligations; namely, to learning how to
make salat (ritualistic worship/prayer), to pay zakat (alms
giving to poor Muslims once one has acquired the neesab by
solely possessing wealth equivalent to the value of 85 grams of
gold for one whole Islamic lunar year); fasting during the
Islamic month of Ramadan from sunrise to sunset (breaking one’s
fast with a sip of water or a date; and paying zakatul fitra at
the conclusion of the month of Ramadan prior to the Eid-ul-fitra
prayer to purify one’s fast); and lastly, making hajj (the
pilgrimage to Mecca once in one’s life for those who can afford
it).
In order to eliminate confusion, especially for one living
in a non-Muslim land, it might be beneficial to make a video to
accompany the written will in order to reiterate the
instructions specified within the will; i.e., video record one’s
final will and testament (say what is written while being video
recorded in the company of the required witnesses). Utilizing
modern technology, some Muslims prefer to read their will in
front of a video camera. Basically, this course of action
supplements the written copy of the will. Therefore, it is
advised that one read their entire will in front of the video
camera. Fundamentally, the video simply documents the will
signing ceremony so that a doubting party can witness the
testator signing the will in the presence of their witnesses; in
addition to watching the testator’s selected witnesses signing
the will. One should also utilize the video to provide
explanations about how various provisions of the will should be
interpreted, to explain the meaning of certain words and
phrases, to explain one’s reasoning for issuing specific gifts
to certain beneficiaries, etc.
In the event of a dispute among family members, the video
in question makes it extremely difficult for an opposing party
to contest the written will; for the video proves that the
testator was mentally competent, the will was properly signed,
and that the testator’s intent was clear. Furthermore, if one
decides to videotape their will, it is imperative that they sign
the written will in the presence of the required witnesses as if
there was no video camera present. In South Carolina, the
written version of the will is able to stand on its own; because
other versions are deemed invalid.
Notable exceptions to one’s
ability to distribute property
JOINT ACCOUNT/OWNERSHIP:
In South Carolina, a jointly owned property with the
rights of survivorship automatically passes onto the survivor.
South Carolina permits a surviving spouse to either take 1/3 of
the decedent's Probate estate or they may take under the will;
but not both. South Carolina joint tenancy laws clearly conflicts
with Islamic law in that upon the death of one joint tenant,
their interest in said property passes directly to the other
joint tenants by the right of survivorship. Thus, the survivor
will hold the property as sole owner. However, according to
Islamic law, upon the death of a party in joint ownership the
surviving joint owner will not have full ownership of the
property. The surviving joint owner shall only be entitled to
half, or their original share of the property in question. The
remaining half of the joint property belongs to the heirs of the
deceased partner. Thus, in the case of a Muslim husband and wife
whom jointly own a house, it is imperative that they pursue
services that will fulfill their needs.
In South Carolina there are three major ways in which real
property can be owned by two or more persons. One has the option
of either pursuing a tenancy in common, joint tenancy with a
right of survivorship or a tenancy in common with a right of
survivorship.
Tenancy in Common: Most deeds to two or more people are drafted
to create a "tenancy in common." Under a tenancy in common form
of ownership, each owner has an undivided interest in the said
property which passes to an owner’s respective heirs or devisees
if the owner possessed a valid Last Will and Testament naming
said individuals. A tenancy in common is the default co-tenancy
in South Carolina and is included in a decedent’s Probate
estate. Thus, in the Islamic world where an example involves the
case of a Muslim husband and wife whom jointly own a house, it
is imperative that they employ a nuzriah or hibah ruqba to
achieve the successful transfer of the property to the other
joint tenant. However, the type of ownership can be changed to
tenancy in common; wherein through the assistance of a
Solicitor, it can be specified in a deed that each spouse agrees
that upon the death of other, the survivor will allow half of
the property to form part of the estate of the deceased and is
to be distributed among their heirs. Basically the surviving
spouse utilizes a Letter of Wishes and agrees to give up
survivorship.
Joint Tenancy with a Right of Survivorship: By including
specific language in a deed one can create a "joint tenancy with
a right of survivorship." If a joint tenant with a right of
survivorship expires, one's interest is immediately extinguished
and ownership of the property rests with the remaining joint
tenant(s). Nevertheless, if the property is owned by more than
two persons and one of the joint tenants dies, the remaining
members will own the property as tenants in common since the
original "unity" of ownership is then broken. The unity is also
broken if one of the joint tenants pass on their interest to
another or the property is divided by agreement or partition. It
is also important to note that by statute, as the rules apply to
an eligible Islamic heir, a joint tenant who effects a severance
of the tenancy by murdering their joint tenant forfeits
their right of survivorship.
Tenancy in Common with a Right of Survivorship: Differing from
a joint tenancy with a right of survivorship in that the
survivorship interest of the remaining co-tenants is a "vested
future interest" and is indestructible. Even if a "unity" is
broken by one or more co-tenants, the remaining tenants interest
in obtaining ownership of that interest passes with the
conveyance. It is therefore the least common form of ownership.
However, it is especially helpful in instances wherein there are
multiple owners to a joint property with the desire to eliminate
the ability for one cotenant to unilaterally destroy the
survivorship interest of those remaining.
Many married couples have joint bank accounts and joint
ownership of properties. When a couple acquires a joint account
or property, whether for convenience or to avoid taxation, the
ownership is considered joint unless it can be proven otherwise.
Also, in the event that one owns their house as joint tenants
with their spouse in South Carolina, as stated earlier, upon the
death of the other spouse, the remaining share of the house
passes directly to the surviving spouse and will not be
considered as part of the deceased’s estate. Moreover, a couple
may own all of their assets in joint names but according to
Islamic law, the share that they own in these assets is regarded
as one’s personal wealth. Consequently, upon the death of a
spouse involved in said joint ownership, a number of problems
can arise with regard to the inheritance of one’s estate.
Therefore, in the event that joint ownership is "nonexistent"
and a spouse dies, the couple’s home is to be divided among the
designated heirs specified in the Quran.
The surviving spouse may be granted the option to purchase
the shares from the heirs and remain in the home. Moreover, in
the event that the surviving spouse wishes to remain in the
home, but does not have adequate finances to purchase the
additional shares from the heirs, the surviving spouse can
continue to live in the house with the permission of the heirs
whom are willing to accommodate them, but the heirs will
maintain ownership of the remaining shares. Also, the surviving
spouse can remain in the home if the shareholders voluntarily
award part or their share to them while they are still living;
i.e., prior to the disease of death.
An additional option where the surviving spouse decides to
leave the home, involves the house being sold with the proceeds
of the sale being divided among the heirs in question. It should
also be noted that even in instances where a couple owns
everything in joint names, each spouse is required to create
their own Last Will and Testament; because, under Islamic law,
the distribution of the wife’s estate is calculated differently
from that of her husband’s. Also, there will be certain items
such as personal jewelry which will not be classified under the
couple’s joint status. Thus, a Muslim couple in South Carolina
with the intent that the other spouse obtains their share of the
home upon their death should purchase the remaining shares of
the house from the deceased’s heirs upon their death to comply
with Islamic law.
GIFTS (HIBAH):
Another important aspect is the granting of a gift of such
an item which is owned in partnership. If the item is such that
it is indivisible (such as a car, a small little home, etc.) in
the sense that if it were divided, no party would be able to
derive any proper benefit from their portion, any partner in
such an item may give away his share as a gift without any
division between the partners taking place. However, if the item
is divisible, such as a big plot of vacant land, etc., no
partner may grant his portion as a gift without the co-owned
item being first distributed. If a share is given as a gift
prior to the distribution, such a gift is null and void.
Hibah may be employed in instances when the rules of
Islamic inheritance do not allow some beneficiaries the
immediate right of inheritance or when no will has been created.
Unlike wasiyya which may be in the form of goods, debts or
benefits, hibah is a "gift" that only comes in the form of
property. However, with regard to Islamic fiqh it means giving
the ownership of anything valuable to another without reward or
compensation, with a definite proposal on the part of the
donator and acceptance on the part of the intended recipient.
Ruqba on the other hand is a kind of gift and is also called
Umra, which is derived from the Arabic verb meaning "to wait;"
because, both the donor and the receiver used to wait for the
death of each other so the house would solely belong to them
permanently. Hibah ruqba is therefore a conditional gift
determined by the hibah giver whereby the gifted property would
be owned by the intended recipient in the event that death
occurs to the hibah giver; i.e., when one gives property as a
gift to a recipient, the said property would only be transferred
to the beneficiary as their personal property only upon the
death of the hibah giver. If the beneficiary in question dies
before the hibah giver, then the property automatically defaults
back to the original owner (the hibah giver).
Hibah results from a declaration by the owner of a
specific asset stating that they will donate said asset to a
specified beneficiary, and that they intend to hold said asset
for the benefit of the beneficiary. The terms and conditions
wherein the settlor is holding the assets should be documented
in writing. For example: The house or any property that should
be given away as a form of hibah should be placed in a Joint
trust. The trust should then be held by a credible legal firm.
During the lifetime of the co-owners, each should contract a
document stating that they would give or "hibah" the property to
their co-owner on the event of their death. Upon their death,
the legal firm could execute the hibah or gift of the dead co-
owner in favor of the surviving party. The evidence for this
practice is a hadith collected by Bukhari, narrated by 'Abida,
reports: "If he dies and the gift has been set aside while the
one who was given it was alive, then it is for his heirs. If it
was not set aside, it is for the heirs of the one who gave
it...'"
Another example involves an aunt who deposits an amount of
money in an Islamic bank in the name of her niece as hibah, then
the niece (who is the beneficiary of the gift) becomes its
owner. However, if the niece in question is a minor, it is the
niece's guardian who will possesses it on her behalf if she has
not yet matured enough to dispose of her wealth rationally.
Either way, this tool ensures that the intended beneficiary will
receive what property is intended for them; thus, satisfying the
interest of both the giver and receiver.
In view of these facts, it is necessary for Muslims
residing in South Carolina to have a joint tenancy modeled after
a Hibah Ruqba contract between co-owners in order to meet the
needs of the survivorship principle in joint ownership. Hibah
Ruqba is an effective tool in estate planning in the sense that
it may be used to facilitate the conventional application of
joint tenancy with the right of survivorship, without breaking
certain Islamic rules and doctrines regarding "joint ownership"
transactions.
SUNNAH WILLS:
If one has "absolutely nothing" to declare in one's will
pertaining to the rights of others or to the rights of Allah, it
is still recommended that they should create a Last Will and
Testament. In this type of will one could appoint executors to
handle the winding-up and distribution of their estate (clothes
on their back, etc.); as well as make any bequests one deems
necessary. However, the most important component of the will of
a Muslim living in South Carolina should be the directive that
their estate must be wound-up and distributed according to
Islamic law.
HARAM WILLS:
Certain wills are strictly forbidden according to Islamic
law. This includes wills wherein Islamic law has been violated
either by changing the shares that are stipulated in the Quran
or by disinheriting a beneficiary. These aspects totally nullify
and void a will despite the fact that such directives may have
been stipulated in one’s will. In the event an un-Islamic will
is executed, the sin will be upon the deceased and those who
executed it.
TRAVELLERS WILL:
When a Muslim intends on travelling abroad, it is
imperative that one possesses a "traveler’s will." In the event
that one dies while travelling abroad, all of their possessions
that are with them at the time of death are frozen by the
government of said country until one’s heirs are discovered.
Discovering one’s heirs can become an intricate task for a
foreign government if the deceased was not a well-known
individual. In the event that one’s heirs are not easily
discovered, one’s possessions could remain frozen by the foreign
government for years. Therefore, to avoid this type of dilemma,
it is encouraged that one should drawing up a simple traveler’s
will and maintain a copy in one’s possession at all times.
Usually, one can obtain a traveler’s will at a local
masjid/Islamic center; however, in the event that an Islamic
organization is not available, in the company of two witnesses,
one can draft a simple document with detailed instructions as to
how their personal items are to be handled.
GENERAL ADVICE IN ONE’S ISLAMIC WILL:
An Islamic will is "NOT RESTRICTED" solely to making
bequests of money and properties. Therefore, one can include
items such as advice in their will. In view of this fact, an
important part of a Muslim’s will can be detailed advice to
one’s family, friends, etc. Including detailed advice in one’s
will is advantageous because after one passes away they will be
unable to communicate with their family, friends, etc. Moreover,
one can utilize this portion of their will to express their
motives for doing specific deeds.
The practice of including detailed advice in one’s will is
evident from the example of prophets Ibrahim (Abraham) and
Ya'qub (Jacob)(Peace be upon both of them) to their sons in
Surah Al-Baqarah of the Quran which states, “O my beloved sons,
verily Allah Ta'ala has chosen the Deen for you, thus do not die
except that you are Muslims."
Lastly, one can leave advice for others in their will to
do as many supplications (duah) as they can; such as saying: "O
Allah, please forgive me for all the sins that I have committed
against you, myself, and everything else. O Allah please protect
me from the fitna of ad-dajjal (anti-Christ), the dunyah (life
of this world), the deen (religion), death (pains of dying,
dying in a haram manner, and dying other than a martyr), and the
grave (being punished in my grave), incapacitation, laziness,
geriatric old age, falling, drowning, fire, engulfment, being
beaten by Satan, going astray after you have led me to this deen
of Islam, the sins of my hands, ears, eyes, mouth, and semen.
Lastly, O Allah, please send peace, blessing, and mercy upon
your last prophet Mohammed (P.B.U.H.) as many times as your
(Allah’s) knowledge multiplied by your (Allah’s) power. Please
say this as many times as it is easy for you and please request
my children, spouse, and companions to repeat this duah as many
times as possible for my and their benefit!"
STORING A WILL FOR SAFEKEEPING:
One should store their Islamic will in a place that is
safe and easily accessible after their demise such as inside a
fireproof storage facility/safe. Moreover, it is not advisable
to keep one’s will in a safety deposit box; because, after one’s
death their executors will not be able to open the safety
deposit box without obtaining a Court Order. Also, one should
always make a copy of their will with the word "copy" clearly
marked on all pages; in addition to storing it with a note
placed on the copy containing directions as to where the
original Last Will and Testament is stored.
One should also review their will every time a "life
event" happens such as the birth or death of an heir, etc. One’s
executor(s) should also be informed as to where the Last Will
and Testament is stored and provided with a letter of
instructions regarding the execution of the will. One should
always take caution not to staple or attach a letter of
instructions to their will in a manner that would invalidate the
document. Lastly, it is important to note that one is not
permitted to make amendments to their Last Will and Testament
after it has been signed and witnessed; because, any obvious
alterations on the face of the document will be regarded as
being made at a later date and will not form part of the
original legally valid Last Will and Testament.
WINDING-UP THE ESTATE:
Before the winding-up of one’s estate can be addressed, it
is essential for a South Carolina Muslim resident to be familiar
with what actually constitutes one’s estate. The estate of a
deceased Muslim simply consists of every single thing that they
owned; from the car they drove to the change in their pockets.
As a result, the winding-up of the deceased’s estate is of
paramount importance and should be conducted as soon as
possible. Therefore, the winding-up of one’s estate should be,
at the most, completed within a few days after one’s demise.
The winding-up of one’s estate is generally performed by
their executor, whom is the one the testator expects will work
in their best interest and will ensure that their heirs, as well
as, all pertinent matters are executed properly during the
winding-up process. Thus, the executor will be responsible for
the payment of debts, the distribution of the inheritance, and
taking care of those specific matters which relate to the
deceased. Moreover, one’s executors should determine the total
value of their estate, and if the deceased was a business owner,
stock of the business should be taken as a matter of urgency.
With this being said, three aspects, namely, funeral expenses,
debts, and one’s Last Will and Testament have a priority over
one’s estate, and will be fulfilled prior to the shares of the
heirs being calculated and allotted.
Lastly, the responsibilities of an executor during the
winding-up process should be done solely for the sake of Allah,
without seeking any financial compensation. However, if the task
of management and winding-up becomes too cumbersome wherein the
executor is unable to attend their place of employment for work,
they are permitted to deduct an amount from the testator’s
estate for their expenses and needs. However, extreme caution
should be taken in this regard and the executor must remember to
fear Allah!
FUNERAL EXPENSES:
The funeral expenses of the deceased include the expenses
incurred in providing a kafan (shroud – 3 for a male and 5 for a
female), the digging of the grave, etc. The rule in this regard
is to exercise moderation. Therefore, one should neither be
extravagant nor miserly. Moreover, the cost of feeding those who
attends the janaza (funeral) is NOT a part of the funeral
expense. Therefore, it is not permissible to use the wealth of
the deceased for this purpose. What is more, if any of the heirs
are orphans, to utilize the wealth of the deceased to feed those
guests attending the janaza will be comparable to seizing the
rights of orphans; which is a grave sin. This fact is evident
from surah Al-Nisa of the Quran which clearly states, "Verily
those who wrongfully eat the wealth of orphans, they are indeed
consuming fire in their stomachs, and soon they will enter the
burning flames."
DEBTS:
The Quran and ahadith highly stress the fulfillment of
one’s debts. Thus, one should make a record of their debts in
order to guarantee the rights of their creditors, since
everything is based on what remains after all payments
and debts have been cleared. This fact is evident from the
Quran in surah Al-Nisa (4:11), which reads: “The distribution in
all cases is) after the payment of legacies he may have
bequeathed or debts.” Therefore, after the funeral expenses have
been paid, the debts of the deceased must be fulfilled. Also, if
a situation arises wherein the debts of the deceased exceeds the
assets left, the family of the deceased will not be obligated to
repay the deficit. However, it is important to note that
repaying the debts of the deceased is strongly recommended so as
to spare the deceased from being held accountable for said debts
on the Day of Judgment. The evidence for this fact can be
obtained from a hadith collected by Tirmizi wherein it was
reported: "When any person would pass away, the Prophet
(P.B.U.H.) would enquire from the Sahaaba (R.A.) as to whether
the deceased had any unfulfilled debts. If the answer was in the
affirmative, in addition to the deceased not leaving behind
sufficient funds to fulfill the debt owed, the Prophet
(P.B.U.H.) would refuse to perform the janaza prayer for said
individual, unless someone would undertake to pay the debt on
behalf of the deceased."
If the debts of the deceased are in excess of their total
estate, then their creditors will share what is available on a
pro-rata basis. What is more, the heirs of the deceased will in
this instance receive nothing! Lastly, in instances where a
debtor made every attempt to pay their creditor but due to
severe circumstances they were unable to fulfill the debt, in
such a situation it is encouraged that respite be given to the
debtor, or they may be cleared of said debt by the creditor. The
benefits to a creditor who pursues this option is detailed in
the Quran in Surah Al-Baqarah (2:280) which reads: “And if he
(the debtor) be in difficulty (and is unable to pay the debt),
then grant him time until it is easy (to repay). And if you
remit it by way of charity, it is better for you if you only
knew."
Omitted Spouse:
A valid Islamic will fails to name or provide for a spouse
because as an heir, they will inherit from the estate of the
deceased. Unfortunately, in South Carolina a spouse can receive
a portion of one's estate via a Last Will and testament. In this
instance, it should be documented that if a spouse, in this
example a husband, apostates by leaving Islam, after a year, his
marriage to his Muslim wife will become annulled. This fact is
evident based on the following verse of the Quran in Surah al-
Mumtahinah (60:10) which reads: “They [believing women] are not
lawful (wives) for the disbelievers nor are the disbelievers
lawful (husbands) for them ...” In the event that a Muslim wife
apostates and becomes other than a Christian or Jew (Hindu,
Atheist, etc.), and a year passes with her remaining as such,
her marriage to her Muslim husband will become annulled;
because, A Muslim man can only marry a Muslim, Jew, or
Christian. Moreover, in the event that a year has elapsed, steps
should be taken to prove that the omission of the spouse was
intentional; because, even though the marriage will be lawful
according to South Carolina law, it is no longer recognized as
lawful according to the Quran, sunnah, and shariah.
It is also important to note that most jurisdictions will
not permit a testator to disown a spouse, most states have
created a spousal right of election (or elective share), which
is essentially a safety net to protect a spouse that has been
omitted from a will.
Omitted Child:
In the event that a Last Will and Testament fails to name
or provide for a child, South Carolina law mandates that the
child in question will receive a portion of the testator’s
estate. The exception to this rule is when it becomes apparent
either from the will or from other evidence that the omission
was intentional. Also, a child conceived by testator prior to
their death or born within 10 months after testator's death will
inherit as if it had been born in the testator’s lifetime.
However, to reiterate, although South Carolina law permits one
to include their children as beneficiaries in their Last Will
and Testament, this practice is strictly forbidden in Islam
because there is no Will for an heir.
Providing for Pets:
South Carolina law currently does not have specific
statutes pertaining to providing care for pets. However, the
testator may specify that a beneficiary become the new owner of
a pet.
Changing and Revoking a Last Will and Testament:
A South Carolina Last Will and Testament may be changed
whenever the testator desires. According to Islamic law, after
one writes a will, they are permitted to modify it or cancel it
prior to the loss of their mental faculties or the approach of
death. A South Carolina Last Will and Testament can be changed
through a codicil, which is a document stating additions or
changes to the original will. Codicils must be executed in
accordance with South Carolina probate laws.
Revoking a South Carolina Last Will and
Testament:
A will, or any part thereof, can be revoked by a
subsequent will that revokes, or partially revokes, the prior
will either explicitly or implicitly via conflicting or
different parts. Moreover, a will can be revoked due to the
document being burnt, torn, canceled, obliterated, or destroyed.
The revocation of the will must be conducted by the testator or
by another person in the presence of and by the direction of the
testator. A testator's subsequent divorce or annulment to the
extent that the divorce or annulment causes inconsistency in the
will, unless the will was written in contemplation of the
upcoming marriage or divorce can also result in the revocation
of the will in question. However, it is important to note that a
remarriage to the former spouse causes revival of the will in
question. Lastly, revocation of a will in its entirety revokes
its codicils, unless revocation of a codicil would be contrary
to the testator's intent. In view of these facts, a South
Carolina Last Will and Testament coincides with Islamic law in
that a testator has the right to revoke their Last Will and
Testament by the creation of a new will or actually or implied
statements regarding the document in question.
Probate and Estate Taxes:
If one’s estate is substantial, consulting a lawyer and/or
tax specialist on ways and means to save on estate taxes, both
federal and provincial, is advantageous. There are many ways of
saving on estate taxes without violating the Islamic rules of
inheritance; such as selection of valuation date of the property
of the estate, differences between simple Will and Wills with
trust, etc.
Probate:
Contrary to popular belief, a Will alone will not avoid
Probate. In fact, validating or proving the will is one of the
primary purposes of Probate. A will in hand means very little
without the validation from the Probate court.
According to the South Carolina State Probate code,
Probate is a legal process that either involves an executor
validating a testators Last Will and Testament and obtaining a
Letters Testamentary to legally settle the testator’s affairs or
the appointment of administration before any motion to Probate
the estate of the decedent (deceased individual) may be granted;
i.e., to open the estate and name a Personal Representative who
is responsible for the administration of the deceased’s
property. What is more, in order to legally obtain the authority
of the personal representative, one needs to be appointed by the
South Carolina State Court. Once appointed, one (The personal
Representative) is then considered qualified and finally will be
issued Letters of Administration that will allow them to assume
the role of a Personal Representative.
It is also important to note that in the absence of a
valid Last Will and Testament, all beneficiaries will first have
to agree unanimously on appointing an Administrator. Once
appointed, since some people find it quite difficult to handle
all Probate matters on their own, it is advised that the
Administrator consult a tax specialist and appoint a lawyer for
each jurisdiction where assets are held, in addition to applying
to those Courts for Letters of Administration (A formal document
issued by a court of Probate appointing a manager of the assets
and liabilities of the estate of the deceased in certain
situations).
Can often take 2-5 years, especially if dispute exists
Next, an official Notice of Creditors is printed in a
local newspaper and Notice of Administration is sent to other
involved parties. Creditors then have a set amount of time
(statute of limitation) to file their claims from the initial
date of publication. Then the personal representative can pay
the debts in question and distribute the remaining estate.
Finally, a petition for discharge is filed, and the estate is
closed. So, in a nutshell, the probate procedure validates one’s
South Carolina Last Will and Testament and determines ownership
of a deceased individual’s property. What is more, any property
that does not meet the criteria of right of survivorship, trust,
or insurance is subject to Probate proceedings. Then, after
one’s South Carolina Last Will and Testament is admitted at
court, one’s executor will need to file applications for the
Probate of a will and for legal documents called Letters
Testamentary (The formal instrument of authority and appointment
granted by the proper court to an executor empowering that
person to execute the functions of the office).
The fees for creating a living trust are often less than
the court fees one’s family would pay for the Probate process;
in addition to the fact that a living trust helps one to access
an estate quicker while avoiding the headache and complexities
of another legal process. So after the executor files
applications for the Probate of a will and for legal documents
called Letters Testamentary, the important functions of the
Probate proceedings will involve taking possession of the
decedent’s (deceased person in question) property, protecting
and preserving the decedent’s estate, paying all debts, claims,
taxes, determining who is entitled to the decedent’s assets, and
distributing the decedent’s property according to their valid
South Carolina Last Will and Testament.
In South Carolina, the share of the surviving spouse of
the decedent who dies intestate inherits the entire estate
as long as there is no surviving “issue” of the decedent
Estate Taxes:
Every estate may be subject to federal and South Carolina
death taxes, depending on the value of assets included in the
taxable estate. The federal tax is based on the value of assets
in the taxable estate. The South Carolina estate tax is equal to
the state death tax credit allowed on the federal tax return.
Filing a South Carolina estate tax return does not increase the
total tax liability of the estate, but instead redirects
revenues to the state which would go to the federal government.
Generally, if no federal estate tax is due, then no South
Carolina estate tax is due either.
Intestacy:
State intestacy laws only recognize relatives, so close
friends or charities that the deceased favored do not receive
anything. If no relatives are found, the estate typically goes
to the state or local government. Intestacy also poses a heavy
tax burden on estate assets. When made aware of the consequences
of intestacy, most people prefer to leave instructions rather
than subject their survivors and property to government-mandated
division. Therefore, one should become familiar with the
following South Carolina Intestate Succession Laws from the
archived CCH information page on South Carolina intestate laws
that were last updated on 12-17-09; namely, SECTION 62-2-102,
which pertains to shares of a spouse, declaring that the
intestate share of the surviving spouse is: (1) the entire
intestate estate if there is no surviving decedent; or (2) one-
half of the intestate estate if there are surviving dependents.
SECTION 62-2-103 of South Carolina Intestate Succession
Laws pertaining to the shares for heirs other than surviving
spouse, declares that the part of the intestate estate not
passing to the surviving spouse under Section 62-2-102, or the
entire estate if there is no surviving spouse, passes as
follows: (1) to the issue of the decedent: if they are all of
the same degree of kinship to the decedent they take equally,
but if of unequal degree than those of more remote degree take
by representation; (2) if there is no surviving issue, to his
parent or parents equally; (3) if there is no surviving issue or
parent, to the issue of the parents or either of them by
representation; (4) if there is no surviving issue, parent or
issue of a parent, but the decedent is survived by one or more
grandparents or issue of grandparents, half of the estate passes
to the paternal grandparents if both survive, or to the
surviving paternal grandparent, or to the issue of the paternal
grandparents if both are deceased, the issue taking equally if
they are all of the same degree of kinship to the decedent, but
if of unequal degree those of more remote degree take by
representation; and the other half passes to the maternal
relatives in the same manner; but if there be no surviving
grandparent or issue of grandparent on either the paternal or
the maternal side, the entire estate passes to the relatives on
the other side in the same manner as the half; (5) if there is
no surviving issue, parent or issue of a parent, grandparent or
issue of a grandparent, but the decedent is survived by one or
more great-grandparents or issue of great-grandparents, half of
the estate passes to the surviving paternal great-grandparents
in equal shares, or to the surviving paternal great-grandparent
if only one survives, or to the issue of the paternal great-
grandparents if none of the great-grandparents survive, the
issue taking equally if they are all of the same degree of
kinship to the decedent, but if of unequal degree those of more
remote degree take by representation; and the other half passes
to the maternal relatives in the same manner; but if there be no
surviving great-grandparent or issue of a great-grandparent on
either the paternal or the maternal side, the entire estate
passes to the relatives on the other side in the same manner as
the half; (6) if there is no surviving issue, parent or issue of
a parent, grandparent or issue of a grandparent, great-
grandparent or issue of a great-grandparent, but the decedent is
survived by one or more stepchildren or issue of stepchildren,
the estate passes to the surviving stepchildren and to the issue
of any deceased stepchildren; if they are all of the same degree
of step-kinship to the decedent they take equally, but if of
unequal degree than those of more remote degree take by
representation.
In view of these facts, it is extremely important to make
a South Carolina will in order to guarantee control of the
distribution of one’s estate; because, if one dies before they
were able to create a valid South Carolina will (or other valid
will), they would be regarded as one who died "intestate" and
their property will be distributed according to strict South
Carolina state laws. Moreover, if one does not have an will or
an Islamic Trust, the laws of the State will govern the
distribution of one’s property, arrange one’s burial, and even
elect who can look after one’s children. Therefore, all
properties movable/immovable must be recorded in the will;
otherwise, these assets will be classified as intestate.
South Carolina's intestacy law gives one’s property to
their closest relatives, beginning with their spouse
(husband/wife) and children (sons/daughters; including adopted
children which are not regarded as primary heirs in Islam). In
instances where one has neither a spouse nor children, their
grandchildren or their parents will get their property. This
list continues with increasingly distant relatives, including
siblings, grandparents, aunts and uncles, cousins, and one's
spouse's relatives. If the court exhausts this list to find that
one has no living relatives by blood or marriage, the State will
take their property.
In order to demonstrate how the laws of intestacy
function, careful attention should be directed toward the
following example which contains an illustration of South
Carolina intestacy laws and the correct allotment of shares
according to Islamic law:
EXAMPLE: An adult Muslim man residing in South Carolina died
before having a valid Last Will and Testament prepared. The
deceased had a Muslim wife and two children (a boy and a girl).
According to South Carolina's intestacy laws, in the absence of
a will, the surviving spouse takes the entire estate if one
leaves no children or parents. If one leaves a spouse and
children, then the spouse takes of the estate, and the children
share the remaining half of the estate in equal amounts. Thus,
based on the above example, South Carolina's intestacy law would
assign half of the estate to the wife, and the son and daughter
will share the remaining half of the estate in equal amounts.
Islamic law clearly states that there is no will for an
heir. Therefore, the above mentioned primary heirs would be
ineligible from receiving anything from a will. However, since
the above mentioned example is based on a scenario wherein no
will was created, in contradiction to South Carolina's intestacy
laws, the primary heirs would be able to inherit because the
assets would form an estate in the absence of a Last Will and
Testament. Thus, the correct ruling according to the Islamic
laws of inheritance would be for the wife to “not” receive one-
half; rather, 1/8th ("And if you have children, then to them [the
wives] is due an eighth of what you have left behind, after
[paying] any amount specified in the will or any loans due."
Surah al-Nisa 4:12) while the son receives an amount twice that
of the daughter’s share; not equal shares. ("Allah has enjoined
upon you with regards to your children that the [entitlement of]
the male is twice that of the female." Surah al-Nisa 4:11).
A Monetary Example based on an estate of $240,000 with no
outstanding debts and all heirs are Muslim: The wife gets one-
eighth (1/8) of $240,000 which is $30,000. The remaining
$210,000 is divided among the son and daughter. The son is
entitled to twice the share of the daughter, or $140,000. The
daughter is entitled to $70,000. Therefore, the right of
election conflicts with the Islamic distributions outlined in
the Quran. The elective share is a matter of public policy
established to prevent one spouse from depriving the other of
property that the two acquired during the marriage; because,
marriage in the USA is considered an equal partnership. This
perception is contrary to the Islamic marital structure which
regards the wife’s property (while alive) as solely hers and the
husband’s property as being a shared commodity to be utilized by
the entire family unit.
In some states a spouse is given a minimum legal right to
the estate such as one-third, or one-half; as is the case of the
South Carolina. Also in those states unlike South Carolina that
apply the community property rule, one-half of the property is
considered a property of the surviving spouse. In view of these
facts (a surviving spouse in South Carolina automatically being
entitled to one-half of the deceased spouse’s assets), a
disgruntled spouse may challenge one’s Last Will and Testament
in court. To avoid this dilemma, a Muslim testator should
consult with a lawyer in order to write an agreement between
them (testator) and their spouse to consent to one’s Last Will
and Testament and accept the share assigned to them through
inheritance solely, (in accordance with Islamic law) and
expressly waive their right to challenge the will (out of fear
of Allah). Such a contract should be attached to the documents
of one’s Last Will and Testament; because, without such
agreement, one’s Muslim husband or Muslim/non-Muslim wife
(Christian or Jew) may be able to challenge one’s Last Will and
Testament in South Carolina State Court.
It should be considered obligatory that every Muslim residing in
South Carolina make a Last Will and Testament in order to ensure
that the rules assigned by Allah are enforced; because, if one
makes a South Carolina will, the valid will prevents the laws of
intestacy from deciding the distribution of one’s estate.
WILL LIMITATIONS:
Some South Carolina laws prevent a testator from giving
full effect to their wishes regarding their Last Will and
Testament. Some laws even prohibit a Muslim from disinheritance
regarding a spouse or their dependent children. In most
jurisdictions, a surviving spouse also has a right of election,
which grants them the right to take a legally-determined
percentage (up to one-half) of the estate whenever they are
dissatisfied with the will. What is more, a married Muslim
cannot completely disinherit a spouse without the spouse's
consent. In view of these facts, a South Carolina Muslim bride
and groom must ensure that their relationship is in conformance
with Islamic law in areas of property ownership, inheritance,
etc., by executing an Islamic Marriage Contract that is also a
Prenuptial or Postnuptial Agreement. This course of action will
alter the legal rights and obligations of the couple in the case
of a divorce, death, etc., in accordance with their wishes to
adhere to Islamic law.
Generic Islamic Last Will and Testament:
Sample Islamic Last Will and Testament: