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Deductions from the Heritage

Different types of deductions are made from the heritage. Some of them are deducted from only a third of the heritage, and discussion regarding them has proceeded in the chapter on wills. Some deductions are made from the whole heritage, and they too are of different types. Hence, if the heritage suffices, they will be completely met, and what remains of it after these deductions and the execution of the will, will be for the heirs. All the schools concur on this. If the tarikah falls short of meeting these deductions, the more important among them will be given precedence over those of lesser importance. If anything remains after the preferred deductions are made, the next in order will follow; otherwise only the deductions of higher preference will be covered. The schools differ regarding the order of preference of these deductions.

The Imāmīs state: The first deduction, before any other thing, is to meet the Wājib funeral expenses, such as expenses of ablution (al-ghusl), shrouding, carrying the body and digging the grave, if required, irrespective of whether the decedent has made a will to this effect or not. Therefore, funeral expenses, according to them, are prior to debts, irrespective of the debts being related to the fulfillment of religious duties (haqq Allah) or to creditors (haqq al-Nās). They bring proof from the tradition narrated by al-Sakuni on Imām Ja`far al-Ṣādiq:

The first thing, which is deducted from the decedent’s estate, is the shroud (funeral expenses), then debt, then the will, and then the inheritance.

The Imāmīs jurists differ among themselves regarding the case where a creditor has a right over the estate itself, such as where the decedent dies after mortgaging his property, the property being all that he owned. Here, a group of jurists give the funeral expenses preference over the right of the mortgager, because of the general nature of the traditions, which include the above-mentioned tradition of al-Sakūni in which no difference has been made between pledged and non-pledged properties. Other jurists give precedence to the right of the mortgager, because the owner of the pledged property is forbidden by law[1] to exercise his rights of ownership, and that which is forbidden by the Sharī`ah is like that which is forbidden by reason.[2]

After meeting the funeral expenses, the repayment of debts will start, irrespective of their being Haqq Allah or Haqq al-Nās, such as unpaid khums and Zakāt, pecuniary atonement or expiation (kaffārah), the returning of the ma~ālim[3], the unperformed obligatory Hajj, and other similar religious and non-religious liabilities. All these debts are in a single category. Therefore, if all of them cannot be completely met from the estate, they will be covered pro rata like the liabilities of an insolvent person[4], allowing no exception to this except khums and Zakāt, provided these relate to the actual items of their incidence present, in which case the two will be preferred over other debts. But if these two are due (without the items of incidence being present), they will be treated as all other debts.

The four Sunni schools, along with the Imāmīs, concur that funeral expenses are preferred over the debts payable from the estate before death. The four schools then differ among themselves in giving precedence to funeral expenses over debts relating to the heritage, such as an article, which the owner pledged before his death. The Ḥanafī, the Shāfi`ī and the Mālikī schools say: Those claims which are related to specific parts of the heritage will be given precedence over funeral expenses.”[5]

The Ḥanbalīs observe: Funeral expenses will be preferred over all other claims and debts including a pledge, penal damages, etc.[6]

In short, according to all the schools the funeral expenses have precedence over debts unrelated to specific items of the heritage, and the Ḥanafī, the Shāfi`ī and the Mālikī schools give priority to debts related to specific items of the heritage over funeral expenses, while the Ḥanbalī  school gives priority to funeral expenses in this case. Some Imāmī jurists favor the view of the three schools, and others concur with the Ḥanbalīs.

Heirs and the Decedent’s Heritage

The schools concur that the heritage devolves on the heirs immediately after the death if there is no debt or will involved. They also con cur that the remainder of the heritage exceeding debts and bequests stands transferred to the heirs. The schools differ whether that part of the heritage covered by debts and bequests will be considered transferred to the heirs or not.     The Ḥanafīs state: The part which equals the value of debt will not be included in the property of the heirs. Consequently, if the complete estate is covered by debt, the heirs will not own anything from it. But they have a right to free the estate from the creditors by paying them their claim on the estate. If the estate is not totally covered by debt, the heirs will own the remainder.

The Shāfi`īs and the majority of Ḥanbalī  Jurists say: The heirs will come to own the indebted part of the estate, irrespective of whether the debt covers the whole estate or only a part of it. However, the debt will relate to the whole estate and the estate will be liable for it. (Abu Zuhrah, al-Math ‘inda al-Ja’fariyyah)

The Imāmīs differ among themselves on the issue; the majority of them hold the opinion that the estate will be transferred to the heirs whether totally covered by debts or not. The debts will be linked to it in one of the various ways, like a claim of pledge, or like the claim of damages resulting from the crime of a da~e, or linked directly in a way not resembling any of these two ways.. In any case, a debt will not hinder the actual act of inheritance, although it hinders. the right of disposal in regard to that which i6 covered by the debt. This. opinion is close to the Shaafi’ee view. (a-Jawaahir and a-‘-Masaalik, baab al-Meeraath)

The result of the difference of opinion appears. in the increase in the estate which takes place between the time of death and the time of repayment of the debt. According to the opinion of the Shāfi`īs , the Ḥanbalīs. and most of the Imāmi legists, the increase belongs to the heirs and they will dispose it without any hindrance from the creditors and others. But according to the Hanafi view, the increase will be subject to the estate, being linked to the debts. payable from it.

[1] Shari`ah

[2] This is the proof (dalíl) mentioned by al-@yyid al-Hakím in al-Mustamsak, báb kafn al-mayyit Al-Shaykh Muhammad Abu Zuhrah, in al-Míráth `inda al-Ja`far iyyah, writes: It is obvious in this situation that the right of the creditors relates to the property itself and have precedence over  all other rights to that property.  Through this observation, the Shaykh attributes to the Imámiyyah a consensus concerning the preference of the right of the mortgager over funeral expenses.

[3] There is a difference between the ma~álim and usurped (magh#úb) proper ties.  The ma~álim are those in which <arám and <alál wealth has been mixed and the owner is unable to discern due to his ignorance, while the magh#úb properties have a known owner.  The ma~álim also differ from those properties whose owners are not known (majhúl al-málik), because in the latter the ignorance is concerning the property itself and its being mixed with other property is not necessary.  The rule for the ma~álim is to give them away as charity (#adaqah) on behalf of its (real) owner when there is no hope of finding him.

[4] Al-Sayyid al-Hakím in Mustamsak al-`Urwah, vol VII, mas’alah 83, says This—i e pro rata distribution—is customary among us, and this is what is required by the principle of not preferring something without a cause for which preference (tarjí< bilá muraji<) as well as the tradition of the Prophet “The debt due to God is better entitled to repayment,” is understood not to imply a difference (between the debts due to God and the debts due to people); rather it solely explains that it is wájib to fulfill haqq Allah and that neglecting it is not permissible.”

[5] Ibn Qayyim, vol. 1, fasl al-mayyit, and Abu Zuhrah’s al-Míráth `inda al-Ja`fariyyah, p. 40, 1955).

[6] al Tanqíb fí Fiqh al-\anábilah, p.71