Q&A: Winding up the Estate

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Q: My father passed away approximately seven years ago. My brother is the sole executor of the estate. However he refuses to wind up the estate. Over the years since my father’s demise, my brother has continued to run the business and deal in the assets of the estate at his own discretion. Every few months we receive some money which we are told is “the inheritance”, but there is no detail, nor have we seen any financials to date. Everyone is keeping quiet to avoid any problems. Is it permissible for the executor to sell off any asset at his discretion and is it correct for him to refuse to wind up the estate?

A: A When a person passes away, the priority will be to settle his funeral expenses and all debts. It is reported in a hadeeth that the deceased’s entry to Jannah is restricted until his debts are discharged. If he had made any bequest, it will then be discharged from a maximum of one third of the estate. The remainder belongs to all the heirs in proportion to their shares of inheritance. They are also entitled to receive it without delay, except in the case of a minor, etc., or if there is any mutual agreement to not immediately distribute the inheritance.

The executors are trustees and administrators only. If any heir is an executor, he owns only his own share of the estate, not the shares of others. Hence, it is totally impermissible for him to dispose any asset of the estate without the mutual agreement of the shareholders. Doing so will be a misappropriation of amaanah. 

Trustee

The executor, being a trustee, has a very weighty responsibility, which he will have to account for on the day of Qiyaamah. It is his duty to ensure that all the heirs receive their shar‘ee right as speedily as possible. To delay the winding up of the estate is wrong and sinful – unless due to circumstances beyond one’s control. In fact, upon the demise of a person, the executors (and if there is no executor then some senior family person) should gather all the heirs as soon as possible – even the next morning. He should fully explain all the details of what the estate comprises of, how it is going to be wound up, the options the heirs can consider, etc. Just as salaah or fasting will not be delayed for a few days because one is grieving, likewise the command of Allah Ta‘ala with regard to distributing the inheritance and discharging this weighty amaanah should not be delayed. It is not unethical to discuss estate matters “so soon” after someone has passed away. The reality is that it is totally unethical — and sinful— to unnecessarily delay the winding up process. While the actual distribution in larger estates can happen as soon as is practically possible, which may require the assistance of experienced ‘Ulama and others, the process of discussion and consultation should commence without delay. If all the heirs mutually agree to keep the estate in a partnership, a clear partnership agreement should be drawn up and all the parties should be given a signed copy for their records. In such a mutual agreement the heirs are not obliged to keep the executors as managers as the partnership. They may mutually appoint whoever they wish.

Transparency

Throughout the winding up process there should be complete transparency in all matters. Though the executors may have no ill intent, a lack of transparency gives rise to suspicions, which lead to unnecessary quarrels and disputes. This often results in the terrible calamity of broken family relationships. Losing billions is not as disastrous to one’s Deen and dunya as the breaking of family ties is. Therefore, every effort should be made to manage the process in such a manner that while all parties receive their full shar‘ee right, the family bonds are also strengthened in the process. Such an outcome is only possible if everyone’s concern is to do that which Deen requires of one and to earn the pleasure of Allah Ta‘ala.

May Allah Ta‘ala guide us to always act in accordance to the Quraan Majeed and noble sunnah and make the attainment of His pleasure our main concern in every aspect of life, aameen.

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