- You can create a will and testament that complies with Islamic and State law.
- Almost always, assets that circumvent probate have a beneficiary (such as your retirements and pension funds, etc.). The assets consequently pass directly to your surviving spouse.
- Your spouse must be aware (through a supplemental agreement, letter, or your wishes) that as executor of your will, they will divide your estate to your lawful heirs according to the terms of your will. Nonetheless, suppose your spouse is not devoted to upholding Islamic law. In that case, you must appoint a different pious and self-assured individual as the beneficiary of the relevant properties which will carry out your desires.
To avoid a judicial challenge by a Jewish or Christian woman, the spousal right to elective share must be surrendered through a pre-or post-nuptial agreement or a disclaimer that has been specifically formulated and includes specific formalities and prominent language. An experienced attorney must draft such a disclaimer agreement.
WHAT SHOULD BE CONTAINED IN ISLAMIC ESTATE PLANS?
The Qur'an stipulates that your money must be distributed in a particular manner upon death. A will is a legally binding document expressing your final intentions. You will be able to:
- Indicate your funeral and burial wishes following Islamic law.
- Appoint a primary and a backup executor (you should choose a trustworthy and responsible person for this important task).
- Provide instructions for funeral/burial expenses and debt/liabilities and obligations discharge.
- Appoint a trustee and guardian for your minor children.
- Specify bequests (gifts) of up to one-third of your net assets to organizations and individuals with no inheritance rights under Islamic law.
- Distribute the remaining two-thirds to eligible heirs following Islamic inheritance rules.
- Some states require three witnesses, so designate two witnesses. The witnesses should not be relatives or people who will inherit a portion of your estate.
- You and your witnesses should sign the will in each other's presence.
- It is not required to have your will notarized, although it is strongly advised.
- Check the will for accuracy and spelling mistakes.
- Include a self-proving affidavit (optional) if witnesses cannot be located or cannot be found at a later date.
WHAT REQUIREMENTS MUST A LEGAL WILL MEET FOLLOWING STATE AND ISLAMIC LAWS?
If you are married, in the military, or have been legally emancipated, state law may allow you to form a will at a younger age. It avoids potential estate-related issues and uncertainty. Parents with minor children are obligated to create a will because they can choose a guardian for their children and have input into how they are raised.
Unless the following elements are met, the court will not enforce your will:
- You must be of sound mind, which means you are aware that you are creating a will and comprehend what a will is.
- You comprehend your relationship with the beneficiaries of your will.
- You are aware of the kind and quantity of your property and the manner in which you intend to divide it.
- You must act of your own free will, unaffected by the coercion of others.
- Signatures and Witnesses: At least two witnesses are necessary to witness your signature on the will. They cannot be your relatives and cannot inherit anything from the will.
- They should be included in the will and guardians should be appointed.
- In addition to these requirements, the law stipulates that a will's appearance must be uniform: all significant sections must be typewritten or computer-generated. Although some states permit wholly handwritten wills, this option is not advised. Typically, you do not need to give notice before you are notarized. However, you must and can "self-prove" that you will (when allowed by your state law).
Additionally, the will must meet the following Islamic requirements:
- The Wasiyyah (bequest) should not exceed one-third of the estate once all expenses, debts, and responsibilities have been satisfied.
- Beneficiaries of legacies should not be heirs (i.e., do not receive any share)
- The remaining two-thirds of the wealth must be allocated following Islamic inheritance law.