Though he was a religious Muslim, Beg’s father had failed to leave behind a will — which is mandatory in Islam to avoid family disputes over inheritance.
“We had a lot of issues,” Beg said. “My dad had debts and other relatives, so it was quite a bit of work to make sure that everything was taken care of fairly and Islamically.”
After consulting with imams and receiving advice from friends and relatives, Beg finally found a way to properly distribute his father’s assets in compliance with both Islamic and Texas laws. But Beg’s experience is far from an anomaly.
Only 44 percent of Americans reported having a will in 2016, according to a Gallup poll. But professionals and imams estimate that number is far lower in the American Muslim community, who have extremely detailed religious directions on how to distribute assets to each family member. Immigrants, attorneys say, are even less likely to leave behind wills because they could usually count on the governments in their Muslim-majority home countries to automatically follow Islamic guidelines. But with the American Muslim community becoming more integrated through the children of immigrants, there has gradually been an uptick in the demand and supply of guidance for American Islamic will-writing, though not nearly as much as needed.
A well-known and often-repeated quote states, “It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it.” And Islamic jurisprudence (based on the Quran and Hadiths, or interactions with the Prophet Muhammad (PBUH) provides specific guidelines on how a Muslim should distribute their assets.
Before distributing inheritance, the decedents’ assets must be used to pay off any debts, money owed, and funeral and burial expenses. The assets that remain are then fractioned off.
First, one-third of the remainder is essentially a free card. Called the wassiyah, it can be spent however the decedent wishes, whether it’s going to friends and family who aren’t prescribed inheritors, or being donated to charities.
The other two-thirds is once again fractioned according to the family structure — most commonly, a married couple with children. In this scenario, a man with a deceased wife would get one-fourth of her remaining assets, and the rest would be distributed to their children. The widower would get one-eighth of her deceased husband’s assets. And among the children, the son inherits double what the daughter does.
Islam is not alone in providing distribution guidelines. Judaism has an “order of priority” of inheritants that would receive the decedent’s entire estate, depending on who is living: first sons (the oldest son receiving double the others), fathers, paternal brothers, and so on. Daughters only inherit from their fathers if there are no sons, and wives do not receive inheritance — although they can choose to receive either a certain amount from their pre-nuptial agreement, or receive living support from the estate until they remarry.
Despite — and sometimes because of — the detailed instructions, American Muslims often hit a roadblock when it comes to writing their wills. Furqan Mohammed, an attorney and co-founder of Islamic Wills, estimated that only 10 percent of American Muslims prepare their wills.
For some, the challenge is finding services to assure a religiously and legally sound will during a daunting, specific process — especially with more complicated family structures. For others, the challenge is theological: How to adapt and implement Islamic law, or sharia, in a way that agrees with American Muslims’ varying lifestyles today.
Ahmed Mattoo, born and raised in Houston, is a cancer survivor, a husband of over 15 years, and a father to a 15-year-old girl and a 10-year-old boy. But he didn’t think to write his will until he was preparing to take Hajj, or the Islamic pilgrimage to Mecca, a few years ago. (Writing a will is one of the prerequisites to take Hajj.)
“It’s crazy, I should’ve done it a long time ago,” he reflected.
Mattoo searched for options to prepare his will. That’s when he came across My Wassiyah — described by co-founder and Islamic scholar Joe Bradford as “like a Legal Zoom for Muslims.”
“My Wassiyah contained guidelines on state law and Islamic law, and it was easy to do,” said Mattoo, whose will took only a few hours to put together.
And at $125 for a basic will, the do-it-yourself type website is a more affordable option for American Muslims who want to avoid paying thousands of dollars to attorneys.
Founded five years ago, My Wassiyah is just one of multiple businesses that have popped up to work within the niche of Islamic wills. Houston-based Bradford and his business partner, who is a lawyer, saw the need to create My Wassiyah when they were constantly being approached by people for help with writing wills and having to turn them away — Bradford because he didn’t feel he had the legal expertise, and his partner because he didn’t feel he had the religious knowledge.
The demand has been there, admittedly to varying degrees.
Since starting My Wassiyah in 2013, the website has attracted around 150,000 users, Bradford said. Mohammed and his business partner, Amro Shamaileh, have worked with around 40 clients since their soft launch of Chicago-based Islamic Wills this year. Imani Jaafar, an attorney in Minneapolis, said writing Islamic wills quickly became a quarter of her practice. And yet Fatima Iqbal of Azzad Asset Management, an Islamic finance company, predominantly for high net worth clients, said their Virginia-based business has worked with under 10 clients so far this year.
“It should be more widespread, but I would blame both the supply and demand,” said Haider ala Hamoudi, vice dean at the University of Pittsburgh School of Law.
Mohammed brought up the same point, saying that educating the community on both the religious and secular benefits of preparing a will has been a challenge. The purpose of the obligatory will in Islam is to avoid conflict over material things after a death, and allow the family the ability to properly grieve. Secularly, of course, it’s avoiding probate court.
Many attorneys say the absence of a will is common among immigrants from Muslim-majority countries, where the courts would automatically distribute a decedent’s assets according to Islamic guidelines if they had not left a will.
“Second-generation kids are coming to us proactively for an estate plan, whereas the first generation comes to us when something bad happens,” Mohammed said. “All these people … have no idea what they should be doing, especially as they age or have children.”
Jaafar said some of her older clients who are recent immigrants were surprised they had to write a detailed will at all, assuming that a note stating they wanted everything distributed according to Islamic law would be enough.
“That can be dangerous because there’s definitely courts that will say, ‘We don’t interpret Islamic law, we’re a secular court,’” Hamoudi said.
The courts then end up calling in experts, who may have differing interpretations of sharia, “and the court gets nervous because it feels like it’s starting to engage in deciding whose interpretation of the Quran is more sound.”
Professionals said that nervousness heightens with anti-sharia dialogue and sentiment, which Hamoudi said “has permeated the legal field,” keeping attorneys on high alert. A 2013 Pew Research Center study found that 32 states had introduced bills to restrict foreign and religious laws’ influence on courts’ decisions. In a 2017 study, Pew found that Americans felt the least warm toward Muslims out of nine religious groups.
“We make sure the language (in our wills) is very clear and secular, especially with anti-sharia legislation being proposed,” Iqbal said.
However, with 15 religious groups having their own established religious courts in the United States, according to Pew, and many existing precedents establishing the relationship between religious and secular laws set by the Jewish community in New York courts, other attorneys are less concerned.
Interpreting the rules
At the Islamic Society of Greater Houston’s Maryam Islamic Center in Sugar Land, dozens of people attended a four-hour lecture that Bradford presented on estate planning on a recent Sunday afternoon. Hands shot up in the air as he described things like distribution fractions, joint tenancy and using trusts. And during a mid-conference break, Bradford was approached by audience members asking whether they could leave their daughters the same amount as their sons.
With the varying and evolving lifestyles of American Muslims, theological questions challenging set distributions have also been raised — particularly concerning adopted and non-Muslim children, who are not given inheritance rights, and the unequal distribution among women.
While the disparate distribution among men and women may seem unjust in the modern context, Islam was actually the first religion to give women the right to inherit.
Mohammed said he explains to his clients that while sons may receive more money, it comes with more strings attached.
“The way the money is given and what it’s allowed to be used for by sons and daughters is drastically different,” he said. “The daughter can use it for anything, the son’s obligations are toward the family first and foremost.”
Regardless, Mohammed said, he and Shamaileh follow a client’s wishes if they choose to equally distribute assets among their children, but put in writing that the will is not entirely Islamically sound. Jaafar follows a similar procedure with clients who express discomfort with unequal gifting.
But others have a different take, recognizing unique family situations and that many modern women are financially independent.
“People often fixate on rules, that this is what’s mandated,” Iqbal said. “But Islamic guidelines also offer a lot of flexibility in areas people don’t realize.”
For example, a popular workaround is using funds from the wassiyah portion to distribute as one wishes among their children, regardless of their gender, religion or biological relationship. Lifetime gifts or trusts are another option as well.
While different schools of Islamic thought may have contradicting interpretations regarding these loopholes, Bradford said as long as there’s a conversation explaining one’s decisions to inheritors in advance, it’s OK.
“If there is room within the same laws and rules God created, then what’s the problem? Is it our own dogmatic reading of these texts, or is it simply taking an allowance that He has given us? I opt for the latter,” Bradford reasoned. “It takes a sophisticated reading of the sources to say when you can and cannot give a religious stamp of approval — one that many people working in this area don’t have.”
While professional options for American Muslims to turn to throughout the estate planning process are slowly rising, those already in the field say there are not nearly enough for the size of the community.
“There has been a considerable lack of familiarity within the Bar on how to do a proper Islamic will,” Hamoudi said. “Ultimately it’s going to be a niche business, and we should have a broader set of Muslim and non-Muslim lawyers familiar with it.”
With the nation’s 3.45 million Muslims making up just over 1 percent of the US population and that segment growing by about 100,000 people a year, the market for that niche business is there. That holds particularly true for Houston, which is estimated to have the largest Muslim population — over 1 percent of the city’s population — in Texas.
“We want Islamic estate planning because we want Muslims to integrate,” Bradford said. “To feel that they have the ability to live out the values of their faith under the umbrella of the American legal system.”
Source: The Houston Chronicle