Some Points On Laws of Inheritance

• A property left by a dead Muslim must be spent according to the following order:
• Debt (Qardh) payment of the deceased person
• Acting on his/her Will (Wasiyat) for one third of his/her property
• Distribution to his/her heirs according to fiqh after accounting for the above two points.
• A Muslim, during his life, can distribute/donate his property in whatever valid (halal) ways he/she chooses.  But if he/she has not done so and he/she has left some property after their death, then it must be distributed according to the Islamic Laws of Inheritance in the order outlined above.
• Debt (Qardh) payment is of two types:
• Personal debts; for example; loan from friends, mahriyyeh (mehr / dowry) not paid to his wife, etc
• Religious debts; for example; Khums, zakaat, fitrah, kaffareh during Hajj, etc
• Payment for offering Qadha (lapsed) salaat (prayers) or offering Qadha siyaam (lapsed fasts) after death is not considered as a religious debt and cannot be deducted from a deceased person’s property.  However, the person can make a stipulation in their will for payment for the offering of Qadha salaat and siyaam from one third of his property.
• For a personal debt, if there a period of loan repayments agreed between two persons, and one person dies before the expiry of the term, then the loan must be paid immediately.

Rules on Permission (Idhn / Izn)

• Islam is extremely sensitive and cautious about the social rights of an individual and the use of properties belonging to others.  In Islam, one cannot use anything belonging to another without the permission of the owner.  This applies even between a husband and wife, parents and children and between any two Muslims.

• The Wali (guardian) of a non-Baligh (non-mature, pre-pubescent) child has the power to use the property of the non-Baligh child without his permission.  In sharia, the Wali of a non-Baligh child is only the father or the grandfather, but not the mother.  For example; a mother cannot give a gift belonging to her non-Baligh son/daughter to another son/daughter or anyone else, without the Wali’s permission.
• According to Surah Nur in Quran; there are certain relatives (father, mother, brother, sister, maternal and paternal uncles, maternal and paternal aunts) in who’s house you can eat food without their permission.  Apart from these exceptions, no-one is allowed to eat food without the owner’s permission.  There are differences in the fatawi regarding the husband and wife eating each other’s food without permission.
• What is the meaning of Permission (Idhn/Izn)?
• In Fiqh, permission depends on two components:
• Yaqeen (certainty / 100% sure of something)
• Itminaan (satisfactory / 96-99% sure of something.
• If you have Yaqeen or Itminaan, that a person will be agreeable if you use his/her property, then according to Fiqh, permission is automatically assumed, even if you may not know that person, and you do not need to obtain an explicit permission.
• For example, a wife can use her husband’s things, if she has Yaqeen or Itminaan of his permission, and vice versa.  Similarly a wife can go out of his house, without the explicit permission of the husband, if she has yaqeen or itminaan of his permission being granted.
• If you give some item belonging to a person to a third person, then you must have yaqeen, having only itminaan is not enough in this case.
• There are certain things, which require explicit verbal or written permission.  Examples of such are:
• Nikah (Marriage)
• Talaq (Divorce)
• Paying Khums on someone else’s behalf (because Niyyat (intention) is wajib (mandatory) for Khums)
• Making someone Wali (guardian) of your property.

 Ijtihad (Striving and Deriving Islamic Laws) and Taqleed (Imitation of a Source of Imitation in terms of Islamic Laws)

• Mujtahid, Faqih and Hakim Shar’i are synonymous words, representing the highest religious authority amongst Shia scholars with the capability of performing Ijtihad (deriving Islamic Laws / Jurisprudence from the original sources and other defined pathways).

  Mujtahid literally means one who tries or strives. 

  Faqih literally means one who understands Fiqh.

• A Mujtahid or Faqih or Hakim Shar’i has four specific powers or authorities:
• Iftah
  To give fatawi (rulings/edicts) i.e. to inform about those things/actions that are either haraam or halal.
• Qizawat
  To act as a judge
• Wilayat
  To govern over the people and to collect Khums.
• Kharaj
  To collect/take Islamic taxes.
• Marja’ is that Mujtahid whom you follow (make Taqleed of).
• For getting fatwa on any issue and for payment of Khums, you must follow your own Marja’
• For all other matters, (for example; settlement of disputes, judgement, permission for Sadaqah, etc), you can go to any Mujtahid - even if that Mujtahid is of a lower level of learning/religious status than the other Mujtahid)
• Payment of Khums:
  The Sehm-e-Imam portion of Khums must be paid to your Marja’ or his authorised representative (Wakil).  The Sehm-e-Sadaat portion should also go to your Marja’ but some of the Mujtahideen (plural of Mujtahid) allow their followers to pay the Sehm-e-Sadaat directly to the poor Shia Sadaat if they so wish (self-distribution of Sehm-e-Sadaat to the those deserving is permitted by the late Ayatullah al-Udhma Khui(RA), and Ayatullah al-Udhma Sistani(HA), for example).  However, according to other Mujtahideen, such as the late Imam Khumayni(A) and Imam Ayatullah al-Udhma Khamenei(HA), the Sehm-e-Sadaat must also be paid to your Marja’.

These notes were taken on the Fourth Lecture on Fiqh by Maulana Sadiq Hasan(HA) at the Panjatan Center, Melbourne, Australia on Friday, March 9, 2001. 

It should be noted that the discussions here are based on the rulings of Ayatullah al-Udhma Sistani(HA), unless otherwise stated.  The official site for Ayatullah al-Udhma Sistani(HA) is http://www.sistani.org/.