Al Wasiyyah - The Lawful Islamic Will, and the Issues Pertaining to Death, Burial, and Matters of Inheritance As-Salamu-Alaikum! I would like to take this opportunityto congratulate all of my Muslim brothers and sisters forsubmitting their wills to Allah and accepting Mohammed (Peacebe upon him) as Allah’s final prophet and messenger. May Allahreward you all with the highest level of paradise (Jannah-firdus)! Many Muslims, particularly those living outside of theUSA, were fortunate enough to be born onto the deen (Islamic wayof life) by having Muslim parents that provided them with anIslamic household and community. However, a great deal ofpeople, myself included, were not raised as Muslims.Nevertheless, we have been extremely fortunate, in that Allah,subhanahu wa-taala (glorified and exalted is He) through hisqadar (predestination) has enabled us to receive dawah (Islamicteaching/preaching) in non-Muslim lands such as the USA via hisrighteous servants, media, etc., in order to accept Islam. As aresult, we have reverted back to the original way of life
ordained for mankind by Allah and have in essence reclaimed ourIslam. Unfortunately, although we Muslims who live in non-Muslimlands, such as the USA are passionate about Islam and want to befree to express our religious beliefs, we are not alwaysafforded this luxury. Often times our Islamic way of life issuppressed; either by negative media, by Muslims in authoritywhom are ignorant or insecure about proselytizing, or even bythe structures of the society in which we live. Regardless ofwhich factors we regard as the culprit, it is obvious thatactions must be taken in order to improve our overall way oflife while simultaneously respecting the laws of the land inwhich we live. In view of these facts, I feel like it is of the utmostimportance for me to do my part to improve the condition of myMuslim brothers and sisters living in the USA; particularly thestate of South Carolina. Charity begins at home! Also, sinceAllah has made it clear that he will not change the condition ofa people until they first change it themselves; coupled with thestatement of our beloved prophet Mohammed (P.B.U.H.): “The penis mightier than the sword;” insha-Allah, my aim is to create adocument that will assist revert and immigrant Muslims livingwithin the USA, particularly the state of South Carolina withfulfilling the basic requirements of their socio-Islamicobligations; namely, writing an Islamic will that complies with
the Quran and sunnah, while simultaneously fulfilling the legalrequirements of the state in question (South Carolina). Detailsregarding preparing for and performing salatul-janaza (Islamicfuneral) and the distribution of inheritance will also beaddressed. My reason for addressing the issues of the Islamic will,death, burial, and inheritance has been influenced by the numberof instances wherein I observed Muslims whom were totallyunfamiliar with these responsibilities present inquiries thateither went unanswered or were addressed with misinformation. Inmost instances, the problems pertaining to the above mentionedmatters stems from a general case of gross neglect; i.e., eithernot seeking knowledge or simply believing that there would besufficient time to address these matters at a later date, and inother instances, from more complex matters such as oppression;i.e., being ostracized for not engaging in practices that areclearly forms of bidah (innovation), kufur (disbelief), or evenshirk (associating partners with Allah). Therefore, as a resultof inadequate answers or obstacles faced while pursuinginformation regarding these matters, a frustrated anddisheartened believer may voluntarily leave the only communityin their vicinity; thus, severing their main, and in mostinstances, only lifeline to proper Islamic knowledge and advise.
With this being said, I would like to make it clear thatexposing dilemmas within Islamic communities in the USA or evenSouth Carolina is beyond the scope of this document. I am merelya revert who felt inspired to create this document to serve as apacifier for those Muslims whom are making the transition intoIslam from another religion and do not have access to an Islamiccommunity, and for all others whom are in need of thisinformation 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 thissubject matter to help improve the quality of this document. Toreiterate, I constructed this document because it is imperativefor 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 priorto one’s death was highly stressed by the prophet (P.B.U.H.). Ina 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 Allahwherein he reminds us of the importance of writing a will insurah Al-Baqarah (2:180) which reads: “ Prescribed for you whendeath approaches [any] one of you if he leaves wealth [is thathe should make] a bequest for the parents and near relativesaccording to what is acceptable - a duty upon the righteous.” Inaddition, most contemporary scholars hold that in a countrywhere Shariah (Islamic law) is not applied by the government toone’s assets pertaining to death (as is the case of the USA),then the duty referred to in the above mentioned Quranic verseand hadith, applies not only to preparing a will but also tomatters pertaining to inheritance and all assets owned.Therefore, legal considerations should be taken into accountwhen living in a non-Muslim land; because, Shariah law is notrecognized under the U.S. Constitution or State law as being anenforceable code of laws. An example of this fact is the U.S. Supreme Court’s 1878ruling wherein it was declared that plurality of wives(polygamy), as practiced in Islamic lands, was deemed aviolation of criminal law and is not defensible as an exerciseof religious liberty; thus, making polygamy illegal in SouthCarolina. Also, if a member of the deceased’s family,
particularly among those not regarded as eligible heirs underthe shariah, (adopted children, step children, illegitimatechildren and foster parents); or a common-law husband/wife, lifepartner (member of the same sex), etc., (regarded as lawfulheirs in the USA), wishes to contest the will, the matter wouldcustomarily be resolved by the State Court laws of the state inwhich the deceased lived. As a result, if a will is preparedaccording to Shariah only, and is not drafted in a manner so asto comply with the State laws in which the deceased resided, theIslamic will might not have any legal standing within the statein question. With this being said, it is imperative for a Muslimliving in a non-Muslim land to write a will in accordance withtheir states legal guidelines in order to successfully fulfilltheir obligations to their Creator, parents, and next of kin.The will should also be written in a manner that makes ituncontestable by any court and or other person. In addition, thewill should be sufficiently explicit to the extent that it doesnot require any interpretation by a non-Islamic court. In retrospect, a will is a very significant means toprovide a flexible instrument in estate planning in Islam. TheIslamic will basically involves one, a testator, giving a giftto others (beneficiaries), after their (testators) death.
Creating an Islamic Will Before engaging into will making, it is crucial to knowwhat constitutes a will versus what is considered a gift. Thereis a big difference between a will and a gift, in that a willconsists of items, not exceeding 1/3 of one’s net assets whichone possesses or is entitled to prior to their demise, butcannot be awarded until after their (testators) death. Whereas,a gift is basically any item that one willingly donated whilethey were alive and mentally competent. Moreover, it should benoted that it is permissible for one to give a gift to someoneeven if they are not a Muslim; as a result, it is permissible towill items to non-Muslim family members and friends. However,the main condition which must be fulfilled by a testator is toalways be mindful that charity and wills must not be soallocated that the rightful owners and other dependents, whichrely upon the testator, are not rendered poor and helpless;i.e., denied their rights as a result of one’s charitablenature. It is also imperative that one become aware of thedifference between an Islamic will and a normal will. Basically,there is not much difference between an Islamic will and anormal will. However, there is a major difference between the
two with regard to how one’s wealth is to be distributed and whoare regarded as heirs. With regard to an Islamic will, one’swealth must be distributed in accordance with the Quran andSunnah with fixed shares being allotted to one’s closestrelatives. However, a normal will, which is unlawful forMuslims, enables one to appoint anyone as an heir and distributethe shares of their wealth howsoever they wish. Thus, the maindifferences are that an Islamic will has fixed shares andspecific heirs. After one has made the decision to utilize an Islamic willto settle their estate after their death, one should make a listof every possible question pertaining to employing an Islamicwill in a non-Muslim country. If accessible, one should thenlook for a Muslim scholar at a local masjid/Islamic center whocan provide them with the correct understanding of how theshares mentioned in the Quran and ahadith need to be allocated.Janaza arrangements and any other issue relating to one’s demiseshould also be clarified from an Islamic perspective andspecified in ones will; because, they also pertain to the willin question. One should then contact about three "wills andestate lawyers" and inquire about dividing one’s estate inaccordance with Islamic law. If the attorney does not seemmotivated about your decision to create an Islamic will, it
behooves you to pursue your second and third choices; and moreif you feel it necessary. Lastly, get all of the details andinquire about all available options before making a commitment.Also visit http://www.livingmuslim.com to contact an attorneywho is knowledgeable about Islamic law. For the benefit of allMuslims residing in the USA, a listing of the State Requirementsfor 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 executionand witnessing of a will are set forth in the Code of Laws ofSouth Carolina, Title 62 South Carolina Probate Code, Article 2Intestate Succession and Wills, Part 5 Wills, Sections 62-2-501through 62-2-504. The basic requirements for a legal will forthe state of South Carolina include age, capacity, signature,witnesses, writing, and beneficiaries. In accordance with the objective of this document, I haveincluded the most important aspects which should be included inones Last Will and Testament; which include the following:TITLE: Generally, the headline would be: LAST WILL ANDTESTAMENT. However, according to Islamic law, the word wasiyya
or LAST WILL AND TESTAMENT does not have to be specificallymentioned 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) muststate 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 orderto make a valid will in the state of South Carolina. However,according to Islamic law, an adult can be anyone who has reachedpuberty; with evidence of puberty being menstruation in girlsand nocturnal emissions (wet dreams) in boys. In the absence of
physical evidence such as pubic hair, puberty is presumed at thecompletion 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 17CAPACITY: In South Carolina, any person who is of sound mindand not a minor can make a Will. (See: Section 62-2-501) "Soundmind" in this instance pertains to someone who has not beendeemed incompetent in a prior legal proceeding. Therefore, atestator must be capable of reasoning and making decisions, andmust not be under duress or undue influence in order to make thewill in question. A testator must also own the assets theyintends to bequest.SIGNATURE: A South Carolina last will and testament must besigned by the testator or by some other person under thetestators direction in the testators presence; as in the caseof those whom are illiterate, disabled, visually impaired, orhandicapped. (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 notneed 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 beprobated in a simplified procedure if it has been self-proven.In order to make a will self-proving, a testator, along withtheir witnesses must visit a notary and sign an affidavitswearing that each party confirms their identity and verifiesthat they are fully aware that they are signing a valid willthat is authentic. (See: Section 62-2-503) Having this done isextremely beneficial since possessing a self-proving will speedsup probate because the court can accept the will withoutcontacting the witnesses that signed it. Witnesses to a self-proven will in the state of SouthCarolina are not required to testify in court because the courtautomatically 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 18years of age from among those whom cannot be beneficiaries arerequired for a valid South Carolina Last Will and Testament.(See: Section 62-2-502) Generally, it is recommended that thetwo witnesses to the will be “disinterested”, which means thatthey are not a beneficiary of the will. In South Carolina, thesigning of a will by an interested witness does not invalidatethe will but the gift to the witness is void unless there are atleast two disinterested witnesses to the will. (A court mightlater disqualify a beneficiary who serves as a witness fromtheir inheritance; and one’s Last Will and Testament would bemore vulnerable to challenge) However, an exception is if aninterested witness (a spouse or child) becomes a beneficiary viaintestacy (when a person died intestate without a valid LastWill and Testament). In this instance, the interested witnesswould be entitled to receive the gift (according to SouthCarolina intestate guidelines) up to the value they would havereceived had the will not been established. (See: Section 62-2-504) At the testators direction or request, the two witnesses,while in the presence of the testator, must include anattestation clause wherein they observe the testator’s actualsigning 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 thewill to their witnesses, and it is unnecessary for the witnessesto read the will. However, the testator must ensure that allwitnesses clearly understand that the document is to function asa Last Will and Testament upon the testator’s demise. It is also important to note that all states require twowitnesses, with the exception of Vermont. Moreover, contrary toSouth Carolina law, Islamic law requires that both witnesses bemales when the matter involves financial transactions).Therefore, in matters involving financial transactions, Islamiclaw requires the testimony of “two females” in the absence of amale party; i.e., 1 male and 2 females. This fact is evidentfrom Surah Al-Maidah (5:106) of the Quran which reads: "O youbelieve! When death approaches any of you, and you make abequest (then take) the testimony of two just men of our ownfolk or two others from outside, while you are traveling throughthe 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 PublicsWRITING: A South Carolina Last Will and Testament must be inwriting 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 probateHowever, according to Islamic law, after the revelation of SurahNisa (4:11-12), in Islamic countries where shariah is followed,it is not required for a Muslim to physically write a willduring their lifetime; because, upon their death their estatewill be divided as outlined in the Quran and sunnah, among theliving heirs. However, in South Carolina, if one dies withoutwriting a will, their property will be distributed according tothe state’s "intestacy" laws. Moreover, it is the right of everycitizen of a non-Muslim country, to will their property as pertheir desires. Thus, by writing a will, a Muslim can ensure thatthe State laws of the land will execute as closely to the
Islamic Shariah as possible with regard to their will. In viewof these facts, in a non-Muslim country like the USA which doesnot have a separate Muslim Personal Law, every Muslim shouldview writing a will as a compulsory act; because, in the absenceof a will each state within the USA will employ its ownintestate method of distributing one’s assets. Lastly, everyMuslim that writes a will should be aware that according toIslamic Law, a Muslim has the freedom to will only 1/3rd oftheir net assets. This fact is evident from the following hadithof Bukhari, wherein Sad bin Abu Waqqas narrated: "The Prophet(P.B.U.H.) came visiting me while I was (sick) in Mecca, (Amirthe 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). Isaid, O Allahs Apostle! May I will all my property (incharity)? 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 leaveyour inheritors wealthy than to leave them poor begging others,and whatever you spend for Allahs sake will be considered as acharitable deed even the handful of food you put in your wifesmouth. Allah may lengthen your age so that some people maybenefit by you, and some others be harmed by you." At that timeSad had only one daughter."
To exercise this freedom, a Muslim will need to write awill; especially, if one wishes to award parts of their estateto non-Muslims or other persons not deemed immediate family(illegitimate or adopted children); charities or friends whomare not permitted to inherit from the testator under Islamiclaw. The remaining 2/3rds must be shared across one’s “immediateMuslim” family in order to comply with the rules outlined in theQuran and sunnah. In instances where one has no immediate Muslimfamily, the (2/3rds) portion of their estate would pass to theMuslim Treasury. However, in South Carolina or the USA where noMuslim Treasury exists, the remaining 2/3rds might become theproperty of the state. The scholars should be consultedregarding this scenario; because, it is opined that if there isa Muslim state, the state will take the place of the HolyProphet Mohammed (P.B.U.H.); if not, the Muslim community wouldinherit from the individual who has no other heir, near ordistant.BENEFICIARIES: A South Carolina Last Will and Testamentenables one to make a disposition of property in any amount toany person. A South Carolina last will and testament alsopermits one to include their primary heirs (mother, father,sister, brother, spouse, children), despite the fact that Islamstrictly forbids this. Islamic law clearly states that there is
no will for an heir. The evidence supporting this fact is ahadith collected by Abu Dawud that was narrated by Abu Hurayrahwherein Allahs Prophet (P.B.U.H.) said: "Allah has appointedfor everyone who has a right what is due to him, and no bequestmust 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 aMuslim with non-Muslim parents and siblings has been written intheir parent’s (mother or father) will as an heir according toSouth Carolina guidelines, declaring that they (the Muslim inquestion) is to receive specific assets, which are also to bedivided evenly between their non-Muslim siblings, the will inquestion would be valid according to South Carolina law butinvalid according to Islamic law; because, a Muslim cannotmodify the shares allotted by Allah for each heir and can onlyinherit from another Muslim. However, Islamic law does allow theMuslim in question to receive from their non-Muslim parentprovided one-third or less of the non-Muslim parent’s wealth isleft to their Muslim child in the form of a gift via a legalwill. Therefore, a Muslim living in the USA is permitted toreceive from a South Carolina legal will with regard toaccepting the grants and gifts, from their non-Muslim parents. A
Muslim can also make contracts with non-Muslims in accordancewith Islamic regulations. However, if a Muslim’s non-Muslimparents were to deprive them from a share of the inheritance anddedicated all of the inheritance to their other children, whichhappen to be non-Muslim, the Muslim child in question would haveno right to claim any of their parent’s property, as this claimonly takes the form of inheritance, which would be deemedillegal 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 distributionof property. A will (al-wasiyya) is a legal document created bya testator (al-musi) to determine how their property, known astheir estate, is to be distributed to others (al-musa lahu)listed therein, after their (testator’s) death. One’s estateconsists of their assets and property including bank accounts,homes, land, furniture, automobiles, and securities (stocks andbonds). 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 beperformed involve the payment of one’s funeral expenses, thepayment of one’s debts, the execution of one’s will, and thedistribution of what remains from one’s estate among the heirsdesignated in the Quran, sunnah, and shariah (Islamic law).
In view of these facts, one should also make a record oftheir debts in order to guarantee the rights of their creditors,since everything is based on what remains after all payments anddebts have been cleared. This fact is evident from the Quran insurah al-Nisa (4:11), which reads: "The distribution in allcases is after the payment of legacies he may have bequeathed ordebts." It is also encouraged that one should incorporate intotheir will the dues of others where there is no proof, lest theybe lost or neglected; as in the case of transactions that wereconducted without the presence of witnesses or writtendocumentation. Moreover, if a situation arises where the debtsof the deceased exceeds the assets left, the family of thedeceased are not obliged to repay the deficit. However, repayingthe debts of the deceased is strongly recommended so as to sparethe deceased from being held to account for said debts on theDay of Judgment. Lastly, any Muslim who writes a will should bemindful of the following hadith collected by Ibn Majah whereinthe Prophet (P.B.U.H.) reportedly said: "A man may do good deedsfor seventy years but if he acts unjustly when he leaves hislast testament, the wickedness of his deed will be sealed uponhim, and he will enter the Fire. If, (on the other hand), a manacts wickedly for seventy years but is just in his last will andtestament, the goodness of his deed will be sealed upon him, andhe will enter the Garden."
Additional Functions of South Carolina WillsChoosing a Guardian: A South Carolina Last Will and Testament may be used todesignate a guardian for any minor child. Testators who haveminor or dependent children may use a will to name a guardian tocare for their children if there is no surviving parent to doso. Therefore, a Muslim residing in South Carolina is permittedto appoint a guardian for their dependent children. If a willdoes not name a guardian, a court may appoint someone who is notnecessarily the ideal person whom the testator would havechosen. Thus, it is imperative for every Muslim with children ordependents to become aware of how the courts will address theiraffairs if no will exists. A guardian is a court appointed individual whom has beengranted legal custody over another person with the authority tomake decision on their behalf. In addition to dependentchildren, individuals eighteen and older who suffer from eithera 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 legaldocuments to name an agent to make decisions on their behalf areamong those whom are in need of a guardian. Also, there is nolegal limit to the number of guardians that a child can have.One can be appointed for the child and another can be appointedfor the childs property; however, the number of guardiansshould be kept to a minimum. SECTION 21-21-25 of South Carolina Code of Laws,pertaining to: "Disposition of custody of minors," declares thatthe father or mother (age twenty-one and under) of any child(under age twenty-one) who is not married, may by deed executedand recorded according to law or by a valid Last Will andTestament (made and probated according to law) may dispose ofthe custody and tuition of their child while it remains underthe age of twenty-one years to any other person, in possessionor remainder. It is also important to note that no deed is validunless signed by both father and mother. Also if both parentsare living and no such deed exists, except a deed to an agencyor department of the State that is authorized by law to receiveor place the custody of children, the deed will be consideredeffective unless approved upon petition by a family court orfamily court judge of this State. In view of this fact, nothingin SECTION 21-21-25 of South Carolina Code of Laws, pertaining
to: Disposition of custody of minors may be construed toabrogate, lessen, or interfere with the right and duty of acourt of competent jurisdiction at any time to transfer andassign the custody of a child for its best interest. With thisbeing said, the role of a guardian is basically to provide one’sdependents with a residence, provisions, maintenance, and anyother service pertaining to their overall well-being. Thus, in anutshell, a guardian is basically a support structure that onedepends on to take care of their loved-ones and affairs in theevent that they become incapable of performing said tasks.Therefore, an ideal guardian for a Muslim would be an immediatefamily member, an adult child, a parent or sibling. A testatorusually chooses a family member or friend to perform thisfunction, and often names an alternate; however, a Muslimtestator is restricted to only choosing from those individualsthat comply with Islamic law. Also, potential guardians shouldknow that they have been chosen, and should fully understandwhat may be required of them; i.e., what the role of a guardianentails. This function is lawful under Islamic law provided thatboth parents are deceased or deemed unfit under the Quran andsunnah. However, one cannot take a child from a parent who is apracticing Muslim and award custody to another while said parent
is still alive and capable of providing for said child. In thecase of minor children where both parents have died, custody isawarded in accordance to the Islamic maternal hierarchy; i.e.,the maternal grandmother, the paternal grandmother, the FullSister, etc. In cases of dispute, the Islamic Court will appointcustody in its wisdom. However, in South Carolina, the statewill address this matter according to its established laws andguidelines (Dept. of Social Services – Foster care, etc.)Furthermore, under Islamic law the custody of a child and achilds inheritance are often dealt with separately. A guardian(usually male) will often be appointed to take responsibilityfor the inheritance, and is entitled to reasonably dispose ofassets 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 anumber of different types of guardians, such as naturalguardians (the parents), testamentary guardians, new partnersappointed as guardians by the parents, and court-appointedguardians. In Islamic law, guardianship falls under three maincategories; namely, natural guardians, testamentary guardians,and guardians appointed by the court. However, the most commonguardianships are minor child guardianships, adult guardianshipsand emergency proxy guardianships. In South Carolina, to begin
the guardianship proceeding a Summons; one must complete aPetition for Finding of Incapacity and Appointment of Guardian(Form 530PC); pay a $150.00 filing fee; complete a Petition toAppoint a Visitor and Proposed Order; complete the Petition toAppoint Two Designated Examiners and Proposed Order (Form533PC); and complete a SLED report for the proposed Petitioner.
In South Carolina under the general structure ofguardianships, parents are usually classified as naturalguardians, with the mother automatically being a guardian in theeyes of the court. However, contrary to Islamic law, the fatheris not automatically a guardian. The father becomes a guardianunder South Carolina guardianship laws "only" in instances wherehe was married to, or was in a civil union with the child’smother at any time from when the child was conceived until itwas born; namely, if the child was conceived before July 1, 2005and he was living with the child’s mother when the child wasborn; the child was conceived on or after July 1, 2005 and hewas living with the child’s mother at any time betweenconception and the birth; or he was recorded as the father ofthe child on the birth certificate on or after July 1, 2005. When the father is not automatically a guardian, he canapply to the court for it to appoint him as such. The court islikely to grant the father’s request unless it deems that saidaction is against the child’s best interests. However, accordingto Islamic law, the father is always a guardian unless heapostates from Islam or is plagued by personal issues whichwould impair his ability to adequately provide for his children.Furthermore, if the father is automatically a guardian, he canask the court to officially declare him as a natural guardian
since an instance may arise where he and the mother of hischildren have separated and the mother does not want him to havean active role in the children’s upbringing. In the event that aparent desires that the other is prohibited from having anactive role in the child’s upbringing, an attorney should beconsulted about how to prove to the court that the other parentis unfit to raise the child in question. Nevertheless, inaddition to being a guardian, under Islamic law, the father isalways recognized as a natural guardian. The consensus in Islamis that the father is vested with the financial burden ofproviding for his wife and children. This fact is evident fromSurah Al-Nisa (4:34) which reads, "(husbands) are the protectorsand maintainers of their (wives) because Allah has given the onemore (strength) than the other, and because they support themfrom their means. Therefore, the righteous women are devoutlyobedient, and guard in (the husband’s) absence what Allah wouldhave them guard..." As a result, the father is awarded thelegal guardianship role. However, in the case of divorce, wherethe mother is a practicing Muslim, she will have more right tothe rearing of her young children than their father. In recognition of an infant’s need for female care, theconsensus is that the mother has the first choice with regard toa child’s physical custody; because, she is recognized as the
fittest person to take care of the children. This fact isevident from the following hadith collected by Ibn Majah thatwas narrated by Amr Ibn Shuaib: "A woman came to the Prophet(P.B.U.H.) and said: Truly my belly served as a container formy son here, and my breast served as a skin-bag for him (todrink out of) and my bosom served as a refuge for him; and nowhis father has divorced me, and he (also) desires to take himaway from me. The Prophet (P.B.U.H.) said: You have a betterright to have him, as long as you do not marry again." Withthis being said, Islam recognizes the mother as generally thefittest person to take care of the children because of theinnate love and tenderness she feels for them resulting from thebond she established during pregnancy, nursing, and childhood.As a result, even after divorce, the mother is entitled toreceive custody wages from the father to help her maintain thechildren. However, to reiterate from the above mentioned hadith,the mother forfeits this right once she remarries; i.e., theperiod of female custody ends once the child reaches a certainage of custodial transfer or when she takes another husband.Moreover, if the mother forfeits her right as primary caretakerof the children, there will be no compulsion on her to retainthis obligation; because, unless it is determined that sheforfitted this right out of duress, the decision will beaccepted as being in the best interest of the children.
It is also important to note that although the Muslimmother is to be awarded custody of the children upon divorce,Islam grants the Muslim father the right to have access to hischildren. The father has the right to control the education andreligion of his minor children; in addition to their upbringingand movement. Thus, so long as the father is alive, he is thesole and supreme guardian of his minor children; which is thereason why he remains financially responsible for theirmaintenance and education even though they may be under the careof their divorced mother or one of her relatives. However, thereis a difference of opinion among the Islamic schools of thoughtregarding the age when custody is shifted from the mother to thefather. Some schools suggest as young as age seven, when thechild begins learning how to make salat (ritualistic prayer -worship), at puberty, or even as late as the age of marriage, asin the case of daughters. In any event, after the determined ageof independence, the choice is up to the child as to whichparent they prefer to live with. In summary, the fathers right of guardianship extendsonly over his minor legitimate children. Moreover, he isautomatically not entitled to guardianship or to custody of hisminor illegitimate children. It is also important to rememberthat parents continue to be guardians even if they split up. If
both parents agree, or the South Carolina court in questionorders that only one of them will have day-to-day care for theirchildren, the other parent will continue to maintain certainresponsibilities of guardianship; namely, contributing to theirchild’s personal development and assisting them with making bigdecisions. In view of these facts, it is important for oneappointed as a guardian to be aware that their custody grantedby the courts does not terminate a parent’s relationship withtheir child like an adoption would; which is an illegal practiceaccording to Islamic law; i.e., replacing a child’s surname andreplacing it with the surname of one intending to classify thechild in question as their own via adoption. Moreover, electingto appoint a guardian generally does not categorize a parent asunfit by the courts or society. Among those individuals whom itmay be deemed necessary for them to appoint a guardian are thoseMuslims living in a non-Muslim land whom want to ensure thattheir 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 alsopermitted to appoint someone else to be a guardian after theirdemise in a will or deed. The individual whom is appointed asthe 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 asurviving parent or guardian can dispute the appointment of atestamentary guardian in court if they are dissatisfied witheither the decision or the individual selected. An example ofthis would pertain to an instance where a Muslim guardianappoints another Muslim who is a member of a deviant sect ordeeply engaged in biddat (innovative practices not approved bythe Quran or sunnah) as a testamentary guardian; or thetestamentary guardian is one with a history of gamblingproblems, substance abuse, or deviant behavior. In this event,the Muslim parent or other guardian can refer the matter to thecourt in question in an attempt to have the unwanted guardianremoved. This point is evident from SECTION 21-21-35 of SouthCarolina Code of Laws, pertaining to: Persons against whomdisposition of custody is valid, which declares that thedisposition of the custody of the child as provided in Section21-21-25 is effective against any person claiming the custody ofthe child as guardian. SECTION 21-21-45 of South Carolina Codeof Laws, pertaining to: Action by custodian for recovery ofchildren and damages, declares that any person to whom thecustody of any child has been so disposed or devised maymaintain an action against any person who wrongfully takes awayor detains the child for the recovery of the child and mayrecover damages in the action for benefit of the child.
Moreover, electing to pursue legal assistance to correct thedilemma is imperative because although a testamentary guardiandoes not have the role of providing day-to-day care for thechild, they can apply to the Court for a parenting order thatwould legally grant them this right. In the event that joint guardians are unable to agree onan issue, any of the guardians in question can ask the FamilyCourt to arrange free and confidential counseling for them in aneffort to resolve the dispute. However, if counseling isineffective, the guardians can apply to a Family Court forfurther instructions. If this is the case, Family Court can makeany ruling that it deems necessary with regard to what is in thebest interest of the child. The court in question will alsogrant the child a reasonable opportunity to voice their opinionsand will take the child’s views into account. It is alsoimportant to note that under Islamic law, the father has fullpower when it comes to making a testamentary appointment ofguardian. In the absence of the father and his executor, thegrandfather has the power of appointing a testamentary guardian.With this being said, it is clear that the mother has no powerwith regard to appointing a testamentary guardian for herchildren. However, there are two cases wherein the mother ispermitted to appoint a testamentary guardian for the property of
her minor children. The first, instance is when she has beenappointed as a general executrix by the will of the childsfather, wherein she can appoint an executor by her will. Thesecond instance is in respect to her personal property. Themother can also be appointed a testamentary guardian by eitherthe father or grandfather whenever they are permitted toexercise this authority. Even the appointment of a non-Muslimmother as testamentary guardian is permissible. South Carolina law also permits the spouse of a personwith disabilities or parent of an incapacitated person to make atestamentary appointment of a guardian in their will. Thetestamentary appointment by a spouse or parent comes into effectafter the incapacitated person and their caregiver or thenearest adult relative has received a twenty days written noticeand the guardian files acceptance of appointment in the court.When both a spouse and a parent appoint guardians in theirwills, the appointment of the spouse has priority. Testamentaryguardianship also permits a parent with a new partner (which isan illegal relationship in Islam) who has been sharing day-to-day care of the children for at least a year, the opportunity toappoint the new partner as a guardian of the children inquestion under the Care of Children Act. The Act pertains to aparent and their new partner, whom are married, in a civil
union, or in a de facto relationship. Moreover, in instanceswhere the other parent of the children is still living, the ACTrequires both parents to make the appointment of the new partneras guardian. Also, in instances where the new partner inquestion cannot be appointed as a guardian due to therestrictions contained in the Care of Children Act such as caseswhere the new partner has been involved in Family Courtproceedings 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 makethe appointment. For more details, visit the Family Courtwebsite at www.justice.govt.nz/family. A child age sixteen or older in the state of SouthCarolina can ask the Family Court to intervene and give itspermission, which would overrule the guardian’s decision ininstances where they disagree or is unhappy about an importantdecision that their guardian or guardians have made; such asdenying them the opportunity to get married. However, toreiterate, children ages 16 or 17 must obtain written permissionfrom their guardian before they can get married or enter into acivil union or de facto relationship; which are illegalrelationships in Islam. It is important to note that in SouthCarolina 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 theirmaturity and level of understanding entitles them to makedecisions for themselves regarding particular issues. As aresult, the child in question can ask the Family Court to giveits permission, which could then overrule the guardian’sdecision. However, in certain instances the Family Court’sruling in favor of the child can do the child in question agreat disservice; such as overruling a Muslim guardian’sdecision to deny the child in question the right to engage indating or to marry someone that is not acceptable under Islamiclaw. In this instance, the Family Court’s ruling in favor of thechild could result in the child in question committingfornication or contracting an illegal marriage. A South Carolina Family Court can also deprive a parent ofguardianship or remove a testamentary or court-appointedguardian whenever a parent/guardian of a child, a partner of aparent of a child (whether they are married, in a civil union,or in a de facto relationship, as long as they have been sharingday-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 thisaction. However, it should be noted that the court in question
will not deprive a parent of guardianship unless it is certainthat the parent in question is for some grave reason unfit to bethe guardian or that they are simply unwilling to be a guardian. With regard to deciding whether to remove a testamentaryor court-appointed guardian, the only issue for the court is thechild’s welfare and best interests. Therefore, if one wishes toapply to the court to be appointed as a guardian, or if anapplication has been made to the court to deprive one ofguardianship, it is imperative that they obtain legal adviceregarding these matters. It is also important for one pursuingguardianship to become familiar with SECTION 21-21-55 of SouthCarolina Code of Laws, pertaining to: Possession of propertyconveyed, devised, or bequeathed to child, which maintains thatany person to whom the custody of any child has been so disposedor devised may take into their possession to and for the use,support, and education of the child all property, real andpersonal, which by deed or will has been conveyed, devised, orbequeathed to the child, until said child attains the age oftwenty-one years or for a lesser time as may be fixed by thedeed or will, and may receive and receipt for the proceeds ofany life insurance taken out by the parent for the benefit ofthe child and do all acts in relation to the child which aguardian appointed according to law might do. The family court
may, in its discretion, require a return of the property and anannual accounting for the rents, profits, and income of theproperty. It is also important to note that a Muslim residing inSouth Carolina with the objective of leaving bequest for theirchildren is permitted to appoint a guardian under the UniformTransfers to Minors Act. One can utilize the Uniform Transfersto Minors Act to addresses property management so that theprobate court does not need to appoint someone to addressmatters on their behalf. What is more, guardianships for minorsare not under the authority of the Probate Court; rather, underthe jurisdiction of the Family Court. However, in order toavoid the Probate Court appointing a guardian for one’s adultdependents, one should execute the proper legal documents, suchas a will, Health Care Power of Attorney, and/or a Durable Powerof Attorney. The choice of guardianship often affects other willprovisions; because, the testator may want to provide financialsupport to the guardian in raising surviving children.Nevertheless, if the capacity of the adult changes or theincapacitated person in question passes away, the guardian inquestion should file a final guardian report and Petition forDischarge (Form 571PC).
A hearing may be held before the guardianship is terminated todetermine capacity. If death is the reason for termination thena death certificate should be provided. To reiterate, an ideal guardian for a Muslim would be animmediate family member, such as an adult child, a parent, orsibling, etc. However, if there are no immediate family membersthen the Court will look to other relatives or interestedindividuals, such as a neighbor or close friend. What is more,under certain circumstances, the Court may even look into thepossibility of appointing an institutional conservator; which isa court appointed individual or entity that handles themanagement of financial affairs or property. However, in view ofthese facts, it is important to note that a Muslim residing inSouth Carolina must exhaust every effort to appoint onlyindividuals that the dependent in question is permitted tosocialize with in an un-chaperoned environment; such as thoseindividuals whom it is illegal to contract a marriage with. Conservatorships in South Carolina fall under two maincategories; namely, those involving minors receiving fundsexceeding $10,000 from an inheritance; insurance proceeds, otherbeneficiary designated funds, personal injury settlements orsale of real estate, and those involving individuals over theage of eighteen that suffer from a mental/physical illness or
disability. Additional factors requiring the appointment of aconservator include mental deficiency, advanced age, chronicsubstance abuse, or any other cause to the extent that anindividual lacks sufficient understanding, insight, or capacityto make responsible decisions concerning their financialaffairs. It is also important to note that all of these factorsare in the event that the proper legal documents have not beenexecuted, such as a Durable Power of Attorney naming an agentfor decision-making. With this being said, just as the matterpertains to guardians, an immediate family member, such asspouse, adult child, parent or adult sibling, would be an idealconservator. Also, as guardianships are handled in instanceswhere there are no immediate family members, the Courtaddressing the issue of conservatorship will look to otherrelatives or interested individuals, such as a neighbor orfriend of the incapacitated adult or minor. Nevertheless, toreiterate, it is important for every Muslim to remember that onemust exhaust every effort to appoint only individuals that one’sdependents are permitted to socialize with in an un-chaperonedmanner. Lastly, the need for financial or legal expertise maylead 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 matterspertaining to a conservatorship proceeding for a minor to notethat due to a recent South Carolina policy change, the Court inquestion will appoint a Guardian Ad Litem for all incomingcases. In addition, a Summons, Petition for Appointment ofConservator (Form 540PC), a $150.00 filing fee, a ProposedGuardian ad Litem/Counsel Order [minors 14 and older mustconsent to the proposed counsel] (Form 532PC), a certified copyof the birth certificate for the minor, a SLED report, a creditreport for the proposed Petitioner, a copy of the proposedconservators drivers license, and a copy of the proposedconservators social security card are required by the Courts forconservatorship proceeding for a minor. Furthermore, to begin aConservatorship proceeding for an adult, the Court requires aSummons; Petition for Appointment of Conservator (Form 540PC);$150.00 filing fee; Petition to Appoint Two Designated Examinersand Proposed Order (Form 533PC); Proposed Guardian adLitem/Counsel Order (Form 532PC); SLED report and Credit reportfor the proposed Petitioner, a copy of the proposed conservatorsdriver’s license, and a copy of the proposed conservators socialsecurity card.
It should also be noted that in order to obtain a SledReport for either of the above mentioned situations, one mustmake a written request for the criminal report from SLED at P.O.Box 21398 Columbia, SC 29221-1398. One is also required toprovide SLED with the Proposed Guardian’s full name includingmaiden and alias names; date of birth, sex, race, and socialsecurity number. Moreover, a $25.00 business check, certifiedcheck, money order, or cashiers check, and a self addressedenvelope must be included for each search. One also has theoption to pay for each search with their credit card and make aninternet request at www.sled.state.sc.us. A credit report on the other hand can be obtained byfilling out the credit history report written request atEquifax, P.O. Box 105252 Atlanta, GA 30348-5252, or by calling1-800-685-1111. Equifax’s emergency fax request line can also beaccessed by dialing (770) 375-3150. Equifax also offers theoption 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 1000Chester, PA 19022, or by calling them direct at 1-800-888-4213.TransUnion can also be contacted via the internet atwww.transunion.com. TransUnion requires one to provide their
agency with the proposed conservator’s drivers license number,social security number and date of birth. Once a conservator is appointed, within thirty days theyare 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, approveddisbursements, account statements, and receipts of expenditures.The Court in question is required to approve expenditures fromthe restricted accounts once the conservator has filed theappropriate Petitions for Expenditures along with supportingdocumentation. The conservator in question should also informthe Court as to the whereabouts of the incapacitatedadult/minor, and the Court has the authority to appoint visitorsand guardian ad litems to check on the incapacitated adult orminor. These actions are methods the Court exercises to makecertain that the conservator in question is performance in thebest interest of the protected person. Lastly, Letters ofconservatorship and orders terminating conservatorship, must befiled and recorded in the office where conveyance of real estateare recorded for the county in which the protected personresides and or owns real estate.
In view of these facts, an individual with an interest topetition to be a conservator should seek the assistance of alawyer; because, due to the legal complexities of the Summonsand Petition, the requirements of proper legal service on allinterested parties including proper service on the allegedincapacitated adult, and the need for proper notice of thehearing to all interested parties, the Court in questionrecommends that the proposed Petitioner have an attorney. TheState law specifies the venue; i.e., where the proceedings areto take place. The venue for conservatorship proceedings will bein the county where the incapacitated person resides. Even ifthe person is or is not a South Carolina resident the venue canbe in any county where the person in question owns property. Whatis more, an attorney is needed because they are appointed as theGuardian Ad Litem and is involved in the intricate details ofthe proceeding. Moreover, due to a recent policy change, theCourt in question now selects the Guardian ad Litem for allincoming cases from a rotating list of attorneys in goodstanding with the South Carolina Bar that are willing to servein this capacity. Also, due to the intricate nature of theproceedings and the allegations that the adult in question isincapacitated and cannot handle their financial affairs, theProbate Court deems it necessary to appoint an attorney for thealleged incapacitated adult. It is also important to note that
an attorney is always needed to represent the interest of aminor; serving a dual role as both Guardian ad Litem and Counselfor the incapacitated adult and minor. The attorney in questionis also required to investigate the need for the conservatorshipas well as the proposed conservators ability to adequatelyserve the best interest of the incapacitated person. A surety bond, which is similar to an insurance policy forthe minor or incapacitated person in question, conditioned onthe conservator carrying out their duties faithfully andappropriately, is required for the appointment of a conservator.A surety bond is almost always required for adults with ongoingmonthly expenditures. Thus, to alleviate the annual expense ofthe surety bond, a South Carolina Probate Court often allows theconservator to open a restricted brokerage account. As a result,the financial institution that accepts the conservatorship fundsin a restricted account is required to execute a RestrictedAccount Agreement with the Court in question. The RestrictedAccount Agreement states that funds will not be disbursed andassets will not be sold without an Order from the Court inquestion. Both the Conservator and the financial institution areobligated to agree to the terms set forth in the RestrictedAccount Agreement.
In any event, one’s guardianship automatically terminateswhen a child reaches the age of majority - sometimes 18,sometimes 21; marries, or enters into a civil union or de factorelationship. Whereas one’s conservatorship status terminatesonce the minor in question reaches majority, when the capacityof the adult in question changes, or upon the death of theincapacitated person. In any of these cases the conservator isexpected to file a final accounting and Petition for Discharge(Form 571PC). Also, when death is the reason for terminatingone’s conservatorship status, then a death certificate should beprovided along with proof that a Personal Representative hasbeen appointed. The Court will then issue an Order for thetransfer of assets to either the minor that has reachedmajority, to the individual that is no longer incapacitated, orto the Personal Representative of the decedents estate.Moreover, a Receipt and Release shall be filed within ten (10)days of the release of assets. Also, a hearing may be heldbefore the assets of the estate are distributed. Lastly, lettersof conservatorship, and orders terminating conservatorshipsshall be filed and recorded in the office where conveyances ofreal estate are recorded for the county in which the protectedperson resides and in the other counties where the protectedperson owns real estate. Nevertheless, from then on, any propertyleft to a child is exclusively owned and controlled by the child
in question. Therefore, leaving a significant amount of assetsin the form of cash to a child can be an unwise choice. Withthis being said one should consult an attorney and determine ifit would be advantageous to appoint a guardian over theirchilds property or would creating a trust be in the child’sbest interest.
CREATING A TRUST: A trust is a fiduciary relationship with respect toproperty where by a trustee holds legal title for the benefit ofanother. The Islamic waqf system in many ways resembles a trustin that it is based on the idea of someone gifting to a thirdparty specific property to be held for the benefit of others. Atrust is ideal if one does not want to have a conservatorshipproceeding wherein one’s family will have to go to court if theydisagree. A South Carolina Last Will and Testament can enable one tocreate a trust and designate a trustee to handle their estate(property left after death) on behalf of their children or otherbeneficiaries. A trust, particularly a discretionary trust,enables one to collect, arrange, and manage their assets duringtheir lifetime. The assets then pass to one’s beneficiaries upontheir death. A trust achieves many of the same ends as a LastWill and Testament; however, a trust serves as a tax-savingdevice which enables one to avoid excessive estate expenses. Ifone’s Last Will and Testament is used to transfer property aftertheir death, there will be a probate. However, trusts are notrequired to go through probate, which can save one a smallpercentage 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 inthe name of one or more parties as trustee for one or morebeneficiaries where the relationship is established by the formof the account and the deposit agreement with the financialinstitution and there is no subject of the trust other than thesums on deposit in the account; it is not essential that paymentto the beneficiary be mentioned in the deposit agreement. Atrust account does not include a regular trust account under atestamentary trust or a trust agreement which has significanceapart from the account, or a fiduciary account arising from afiduciary relationship such as attorney-client. It is therefore important to highlight that a trustaccount does not include a regular trust account under atestamentary trust (will trust) or a trust agreement. Atestamentary trust is a trust that is not created until after atestators death, and is therefore irrevocable; because, sincethe testator has died, it will be physically impossible for themto have the ability to amend or revoke the testamentary trust. Atestamentary trust can be established under ones Last Will andTestament, Revocable Living Trust, or Irrevocable Life InsuranceTrust. 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 testators 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 itselfSTRUCTURING A TRUST: It is imperative that a Muslim living in South Carolinaconsider the practical Islamic guidelines with regard to how thetrust is actually structured. In theory, there are various waysone can structure a trust to achieve the underlying objectivewhile 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 whileacting as the protector of the trust. This individual shouldessentially ensure that all activities of the trust are in
compliance with Islamic law. Furthermore, in order to ensurethat the Trustees observe the requirements of both Islamic andstate law while administering the trust, the settlor shouldprepare a letter of wishes. However, it is important to notethat as a matter of practicality, where the trust isadministered from an abroad jurisdiction this option may beinconvenient in practice.
Type of Trust - Discretionary A Discretionary Trust (Family Trust) is established by aDeed between the settlor who sets up the trust and a Trustee. Ina discretionary trust, the Trustee has the power use theirjudgment when deciding whether any sum is to be paid tobeneficiaries, and if so, how much. The heads of a family aregenerally appointed as a trustee companys directors; and inthis way they are able to control the exercise of the trusteesdiscretionary powers.Revocable/Irrevocable Trust structure An important consideration is the issue of whether thetrust should in essense be revocable or irrevocable. Whenelecting a revocable trust, careful thought must be given to theinterests of the beneficiaries under the trusts; because, theparties involved could actually deviate from the rules ofestablished heirs outlined in the Quran, resulting in anunsupported couse of action. In summary, there are a variety ofways in which the framework of the trust can be adapted flexiblyto ensure that ones wishes are carried-out; however, carefullplanning will be required. Regarding Revocable Living Trust, some Trust advocatespreach against wills, declaring that Trusts are a better
instrument. Nevertheless, even if one has a Revocable LivingTrust, they are required to create a will. However, in manyinstances, a will is all that is required. Regardless of the sizeof one’s estate, a will should form the foundation of theirestate plan. In instances where one has a Revocable LivingTrust, it is ok if their will is very simple. Nevertheless, awill is still an important part of one’s estate plan, and itshould not be considered as being unimportant simply because aRevocable Living Trust has been created. In all fairness,something is wrong if one has a Revocable Living Trust and doesnot posses a will. When one has a Revocable Living Trust, theycreate what is referred to as a "Pour-Over Will." A Pour-OverWill acts as a safety net for one’s Trust. One’s Last Will andTestament will actually "tie" together the Revocable LivingTrust, tax plan, and other facets of their estate plan. In instances where one has minor children or anincompetent family member, the will in question should at leastname a guardian/conservator. The purpose of a Revocable LivingTrust is to allow property to be transferred through the Trustrather than through the will, thus avoiding probate. It is alsoimportant to note that some attorneys will flat out say thatRevocable Living Trusts do not work and should not be used inthe vast majority of the cases. The reason being, drafting a
will in the manner employed by most lawyers does not make a lotof money for them up front, but once a will is written, thetestator and their heirs are psychologically "locked" into thelawyer in question. As a result, a lawyer can benefitfinancially because the party in question will probably do otherlegal work with them. Unfortunately, there are even instances inwhich a lawyer will take advantage of one’s family during theprobate process. Lawyers will also draft a great deal of willsat inexpensive prices in order to get the probate business;because, their financial success is guaranteed by the probateprocess. Fundamentally a trust is formed by a token donation; suchas 10,000 USD, and thereafter transferring properties etc., intothe name of said trust. The donor then specifies specificbeneficiaries who will become the eventual owners of the trustonce it is dissolved. In this context, the donor neither intendson immediately donating their property, nor do they really wishto make the specified beneficiaries their immediate owners. Fromthe standpoint of Islamic law, there is no problem with regardto what clauses may be written into the trust deed, providedthat it does not constitute a violation of any aspect of Islamiclaw; 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 partof the donor’s estate upon their death; despite the fact thatthe trust deed is a valid legal document according to SouthCarolina law. The trust in question is non-existent because the intendedrecipients will not take actual possession until after the donorhas died. The same would apply even if the donor issued theitems in question as he was dying (maradul-maut); because inthis instance, the transaction would be regarded as a will. Inorder for the transaction to be valid under Islamic law, thedonor would have to issue a particular item and witness theintended recipient take actual possession prior to their demise.Thus, if a house was to be part of an Islamic trust, the ownerwould have to donate the house to the intended recipient, moveout, hand over the keys, and sign over the title to the newowner. The new owner could then allow the former owner to remainin the house until the time of their demise. However, eventhough the former owner will remain in the house, it isimportant to note that every detail pertaining to the house willbe at the new owner’s discretion. If the donor dies with the situation remaining unchanged,the donated property will transfer upon their heirs according tothe laws of inheritance. The evidence for this view is a hadith
collected by Bukhari, narrated by Abida, who reports: "If hedies and the gift has been set aside while the one who was givenit 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, Nomatter which one dies before, it is for the heirs of the one towhom it was given if it has been given to the messenger." Withthis being said, all the donor’s eventual heirs, as well asthose specified as beneficiaries to the trust in question mustbe informed of the true reality of the trust. Therefore, it isbest if the true position of the trust be documented and all theheirs and beneficiaries be required to sign the document inquestion, stating that they have been informed about the factthat the trust is non-existent in terms of Islamic law, and thatthe donor is the sole owner. Consequently, if one intends toform a trust that is valid according to Islamic law, it isimperative that they seek guidance from a scholar/expert who isexperienced in this field before any trust deed is finalized.Nonetheless, whatever the situation may be, the reality of thetrust must be clearly known and recorded in order to enable theexecutors to wind-up the estate correctly. Below is a listing of important questions one might haveregarding South Carolinaa new Trust code; taken from Answers to95 Questions You Should Have About the New South Carolina Trust
Code, By Evans, Carter, Kunes & Bennett. According to theauthors, "The new South Carolina Trust Code (SCTC) was passed bythe South Carolina General Assembly and signed into law in 2005.It takes effect on January 1, 2006, and applies retroactively toall trusts. Modeled on the Uniform Trust Code (UTC), which waspromulgated by the National Conference of Commissioners onUniform State Laws, the SCTC was the result of the efforts ofthe SCTC Study Committee of the Probate, Estate Planning andTrust Section of the South Carolina Bar. For the most part, theSCTC is a default statute. The absence of case law and theabsence of statutes left practitioners dealing with uncertaintyin many areas of the common law. The SCTC introduces newconcepts and makes significant changes to our laws on trusts.The SCTC is codified in Article 7 of Title 62 of the SouthCarolina Code. There are eleven sections to the Act, and itincludes the official UTC comments as well as South Carolinacomments. Attorneys, judges, corporate and individual trustees,and trust beneficiaries and their duties and rights will soon beguided and governed by the SCTC. Herewith are answers to 95questions we should all have about the new law." The questions I have included are the following based ontheir relevency to the objective of this book:
INSURANCE AND PENSION: If one’s insurance or pension policy is written in a trustof nominated beneficiaries, upon one’s death, these items willpass outside of one’s Islamic will directly to one’s designatedbeneficiaries. All insurance/pension policies will pass outsideof one’s Islamic will; because, these items are not regarded asone’s wealth due to the fact that they will not be in one’spossession at the time of their death. However, in the case of apension, since this item is accrued from years of service, inprinciple, the retirement pension scheme constitutes Mudaraba(The first party, the rabb al-mal, contributes the capital tothe mudaraba and does not get involved in its management, whilethe second party, the mudarib, brings no funds but only hisexpertise and entrepreneurial skills to manage the mudaraba.),
so the proceeds from said transaction will become the right ofall the legal heirs. Furthermore, even if one dies beforeobtaining their pension, the value of said item must be includedin their estate. According to a June 30, 2003 article in Arab News Islam,"Pension plans are generally acceptable. They work onpractically the same basis as life insurance, with somedifferences. Pension plans are operated by most, if not all,Muslim countries. They are also applicable to Al-Azhar and otherIslamic universities. Normally pension plans provide support toa retired employee, his wife, and children below a certain age.The idea is that after that age, which is normally 21, childrenshould be able to support themselves. Pension is a benefit givento those who are at a stage of life when they cannot supportthemselves. This is why it is paid to a retired employee and hiswife, or spouse. It is not part of a person’s savings, unlessthe plan specifies that. As such, it is not treated as part ofone’s estate, which is divided according to the law ofinheritance." It should also be noted that any insurance policy that is"required" for a South Carolina resident or employee is lawfulaccording to Islamic law. On the contrary, Life insurancepolicies are unlawful if not required by State law or a
workplace agreement. However, for those Muslims who engage insuch policies, upon their death, the funds from said policiespass directly to the beneficiary named within the document. Onecannot inherit funds from their own Life insurance policy; as aresult, one’s spouse is generally the primary beneficiary of thepolicy. One can also utilize a Letter of Wishes to change the waythat an asset is held so that it pays directly into theirestate; such as, changing one’s pension fund from directlypaying their beneficiaries to paying into their estate.Basically, one can include a Letter of Wishes for each assetthat passes outside of their will. This Letter will be addressedto the beneficiary of that asset. It must be signed and dated bythe Testator and can be either written or type. It does notrequire witness signatures. Unlike the will, the Letter ofWishes does not become a publicly available document upon deathand therefore should be kept with ones Last Will and Testament. The Letter of Wishes can also request that a particularbeneficiary include their share of the asset as part of thetestator’s estate. This ensures that the asset to be distributedwill be done so according to Islamic law. This fact is evidentfrom SECTION 62-2-512 of South Carolina Code of Laws pertainingto: Separate writing identifying bequest of tangible property,
which maintains: "A will may refer to a written statement orlist to dispose of items of tangible personal property nototherwise specifically disposed of by the will, other thanmoney, evidences of indebtedness, documents of title (as definedin Section 36-1-201(15); i.e., Document of title" includes billof lading, dock warrant, dock receipt, warehouse receipt ororder for the delivery of goods, and also any other documentwhich in the regular course of business or financing is treatedas adequately evidencing that the person in possession of it isentitled to receive, hold and dispose of the document and thegoods it covers. To be a document of title, a document mustpurport to be issued by or addressed to a bailee and purport tocover goods in the bailees possession which are eitheridentified or are fungible portions of an identified mass.),securities (as defined in Section 36-8-102(1)(A)), and propertyused in trade or business. To be admissible under this sectionas evidence of the intended disposition, the writing must eitherbe in the handwriting of the testator or be signed by him andmust describe the items and the devisees with reasonablecertainty. The writing may be referred to as one to be inexistence at the time of the testators death; it may beprepared before or after the execution of the will; it may bealtered by the testator after its preparation; and it may be awriting which has no significance apart from its effect upon the
dispositions made by the will." However, it is important to notethat a Letter of Wishes is not legally binding on one’sbeneficiaries; i.e., after one’s demise, there is no way toguarantee that their heirs will comply with the agreement.Nevertheless, as a backup plan, a testator can have theirexecutor reiterate to the beneficiaries in question theimportance of fearing Allah and honoring the testator’s finalwishes. With this being said, as detailed on theISLAMTOMORROW.com document: Last Will and Testament - ImportantNotes - Point #6 - Case of more than one wife, every Muslim malewriting a will should reflect upon the following point of thedocument which reads: "Although I believe that the legal ban inAmerica and other Western countries on marrying more than onewife is wrong and instead, I call for regulating pluralmarriage, in a way that is consistent with Shari’ah, I do notcondone any violation of the law of the land. But since thereare a few Muslim men who have more than one wife withoutregistering the second marriage or both marriages, I feel a needto protect the rights of unregistered wives in the estate. Insuch a case I suggest personalizing the Last Will and mentioningthe names of the wives, registered or not, along with astatement that requires the distribution of any share of a wifein the Schedule of Mawarith equally between the survivingwives."
APPOINTING AN EXECUTOR: A South Carolina will may also be used to name an executor(al-wasi) to handle a testators property and affairs from thetime of their death until an estate is settled. Ideally, atestator should select an executor who is a young practicingMuslim; preferably, their adult son or daughter. An executoralso may feel inclined to appoint their spouse or their bestfriend. However, at least one of the selected people should beoutside of the family circle. This is so that if there is afamily tragedy where members of the same family die together, atleast someone else would be at hand to execute the will. Atestator should also produce a letter to their executor thatgenerally explains what the job entails. What is more, atestator’s will should leave detailed instructions for theexecutor, such as directives to pay all debts owed; especially,those debts owed to Allah; such as paying Zakat, feeding thepoor to compensate for one’s inability to fast, paying whatremains of an unpaid Mahr (dowry), etc. The proof for thisdirective is the hadith of Bukhari, narrated by Aishah, whereinshe quoted Allahs Messenger (P.B.U.H.) as saying, "Whoever diedowing fasts, his guardian should fast on his behalf." Explicitdetails should also be applied to one’s final illness, funeral,and burial expenses; i.e., that the expenses for the necessaryfuneral requirements, from the time of death until the
completion of the burial, be drawn as a first charge from theestate in question. It is also advantageous to select an Appropriate Executorand an Alternate Executor. For convenience purposes, theseindividuals should reside in the same state; because, it couldbecome quite expensive for one’s executor to travel back-and-forth to manage the estate in question. Moreover, some statesrequire that out-of-state executors post a cash bond, even ifthis requirement has been waived in the will in question. Theexecutor of a will is therefore, the manager of the estateappointed by a testator. The executor has to carry out the wishes of a testatoraccording to Islamic law regarding the interests of theirchildren and estate. The authority of the executor should alsobe specified; i.e., it should be stated that the executor maynot deviate from Islamic law by modifying the inheritanceguidelines outlined in the Quran, sunnah, and shariah. It shouldalso be specified that despite living in a non-Muslim country,the executor shall carry out their duties as closely to Islamiclaw 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 statesthat one’s executor is authorized to distribute the assets of atestator’s estate in accordance with their Last Will andTestament. Once the will is probated, the document isauthenticated with the probate court in the county wherein thedeceased resided at the time of their death, and is held asvalid in the eyes of the court. The executor then receivesLetters Testamentary, a document that grants an executor accessto the assets of the testator’s estate and the authority tohandle their affairs. What is more, if the executor wishes to getthe Letters Testamentary issued without going to see anattorney, a copy of the valid Last Will and Testament and thetestator’s death certificate must be presented to the CourtClerks office. The Clerk will then open a probate file for theestate of the deceased and the Letters Testamentary will beissued by the Court office. Once the Letters Testamentary hasbeen issued, the executor should take it to the testator’s bankor other financial institution so that the funds held in a bankor investment account may be released. These documents, with theappropriate death certificate are often the only license anexecutor needs to marshal and dispose of the testators estatein the name of the estate itself. It is also a good idea to makeseveral copies of the documents and have them certified so thatthey can be presented to each institution.
The executor of a will is also responsible for locatingand securing all the assets forming part of the testator’sestate. The testator’s beneficiaries must also be contacted.However, before any of the named beneficiaries can receive theirinheritance, the executor must clear the testator’s debts.Therefore, the executor must notify the testator’s creditors andinform them that the testator has died; in addition to allowingthem to make a claim for payment. With this being said, legalnotices to creditors may need to be published, and any creditorswishing to make a claim against the estate shall be given aspecific period of time to do so. The executor also pays anyestate taxes by authority of the Letters Testamentary. A finalincome tax return must also be prepared on behalf of thetestator. The executor then arranges for the funds to bedistributed to the estates beneficiaries according to theinstructions set out in the will. Lastly, it is advantageousthat the executor acquire assistance from an attorney acting forthe estate to efficiently perform their executor duties. In instances wherein a deceased Muslim did not leave aLast Will and Testament, a qualified candidate would have toapply for a Letter of Probate to control the assets of theestate. But, in this case, it is a little more complicated. Inthe event this happens, one’s family members will need to reach
an agreement and appoint an Administrator who must apply for thegrant of Letters of Administration which is an instrument inwriting, granted by the judge or officer having jurisdiction andpower to granting such letters. Thus, Letters of Administrationactually names an Administrator; thereby granting the individualin question full power to administer the goods, chattels,rights, and credits of the deceased in the county or districtwherein said judge or officer has jurisdiction. Moreover,Letters of Administration also grants a newly appointedAdministrator the authority to ask, collect, levy, recover, andreceive the credits of any kind that the deceased either owed orwas entitled. As a result, the Administrator would be requiredto pay the debts in which the deceased stood indebted,pertaining to goods, chattels, rights, and credits according tothe rate and order of law. It is also important to note that one can also have a LastWill and Testament with Letters of Administration if none of thepersons named as executor in the Last Will and Testament is ableor willing to serve. In which case, the Court appoints anunnamed-in-the-Will Personal Representative and issues Lettersof Administration with the Last Will and Testament Annexed. Inview of these facts, every Muslim living in a non-Muslim landshould 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 roleand responsibilities. Lastly, the executor should contact the Islamic scholar atthe time of the testator’s death in order to consult with him inorder to ensure that the estate in question is accuratelydivided. It is also important to note that if a Muslim testatorfails to name an executor, the Probate Court will appointsomeone to take on the job of winding up their estate. As aresult, the Probate appointed representative probably mightdeviate from one’s directives of complying with Islamic law. Hanafi and Maliki fiqh state that the executor should betrustworthy and truthful; the Shafii fiqh state that theexecutor must be just. The Hanafi fiqh considers the appointmentof a non-Muslim executor to be valid. The testator may appointmore than one executor, male or female. The testator should alsostate wheter each executor can act independently of the otherexecutor regarding the affairs of the Last Will and Testament inquestion. A copy of an Overview of Estate Settlement in SouthCarolina by Albert C. Todd is listed below to provide the readerwith further information pertaining to the subject at hand.
INSTRUCTIONS FOR AN EXECUTOR: For those Muslims living in non-Muslim lands, in order toavoid having ones body desecrated by un-Islamic funeralpractices such as cremation, embalming, etc., one must specifyhow their body is to be handled; such as: Who is to and whocannot prepare a Muslim’s body for janaza. One must ensure thatthe rights of their descendents/ascendants are not violated byconducting an extravagant funeral. (the deceased should beburied in the most inexpensive manner possible; i.e., notborrowing money for funeral expenses in order to purchaseextravagant fabrics for shrouding the body, or even a casket,unless the use of a casket is required by the state - countywhere the deceased resided/will be buried.Emphasis should also be placed on locating an Islamic cemeteryor green cemeteries if one does not have access to a masjid(mosque-Islamic center). Instructions should be left as to wherethe body is to be buried; especially, if one is a recent convertand is not a member of a community, or lives in an area whereMuslim cemeteries are not available. Therefore, in instanceswhere Muslim cemeteries are not available one should purchase aparcel of land for the purpose of burial or pursue the next bestoption within their means (Allah puts no more on a soul thanwhat it can bear).
An executor must also ensure that a basic grave marker ispositioned over the testator’s preferred choice of grave (Notombstones or erected shrines, etc.). It is also recommendedthat a testator leave instructions for their executor to invitethose non-Muslims present at the Janaza to Islam and reiterate:"The shahadah (declaration of faith to become a Muslim orpersonal testimony that there is no God but Allah, who is one -totally unique from his creation, and that Mohammed the son ofAbdullah and Aminah, born in Mecca Saudi Arabia in the 6thcentury, is the last of Allah’s prophets and messengers, whobrought the universal message of tawheed - oneness of Allah –and to only worship Allah); then procede with the next item onone’s list of Islamic obligations; namely, to learning how tomake salat (ritualistic worship/prayer), to pay zakat (almsgiving to poor Muslims once one has acquired the neesab bysolely possessing wealth equivalent to the value of 85 grams ofgold for one whole Islamic lunar year); fasting during theIslamic month of Ramadan from sunrise to sunset (breaking one’sfast with a sip of water or a date; and paying zakatul fitra atthe conclusion of the month of Ramadan prior to the Eid-ul-fitraprayer to purify one’s fast); and lastly, making hajj (thepilgrimage to Mecca once in one’s life for those who can affordit).
In order to eliminate confusion, especially for one livingin a non-Muslim land, it might be beneficial to make a video toaccompany the written will in order to reiterate theinstructions specified within the will; i.e., video record one’sfinal will and testament (say what is written while being videorecorded in the company of the required witnesses). Utilizingmodern technology, some Muslims prefer to read their will infront of a video camera. Basically, this course of actionsupplements the written copy of the will. Therefore, it isadvised that one read their entire will in front of the videocamera. Fundamentally, the video simply documents the willsigning ceremony so that a doubting party can witness thetestator signing the will in the presence of their witnesses; inaddition to watching the testator’s selected witnesses signingthe will. One should also utilize the video to provideexplanations about how various provisions of the will should beinterpreted, to explain the meaning of certain words andphrases, to explain one’s reasoning for issuing specific giftsto certain beneficiaries, etc. In the event of a dispute among family members, the videoin question makes it extremely difficult for an opposing partyto contest the written will; for the video proves that thetestator was mentally competent, the will was properly signed,