Know Your Rights - Muslim Inheritance Law (Faraid)
Tina* and Din* have been married for 5 years and they have a son and 2 daughters. Tina is a full-time homemaker while Din holds a clerical position in a private company. Din's mother lives with them in their apartment in Petaling Jaya. During one of his day off, he was running some errands on his motorbike and was involved in an accident. He was in a coma for 2 weeks and due to the severity of the injuries, he passed away.
Now that Tina is a single parent, she is concerned whether she is able to bring up the children on her own as she does not have any other close relatives to assist her, physically, emotionally and financially, whether on her side or on Din's side. Aside from that, Din's mother is under her care now. She knows that Din has put away some savings for the family's future and the deed of the apartment they are staying in now is under Din's name. However, she is aware that under Syariah Law, estates left by the deceased has to be distributed according to Faraid.
All Muslims are obligated to the distribution of inheritance under Faraid according to the verses of authorities on the distribution of estate, with reference to verse 11,12 and 176 of Surah an-Nisaa of the Holy Quran.
To obtain the distribution accordingly, first of all Tina has to gather all the documentation related to the husband's estate which covers his savings in the bank, Tabung Haji, insurance, EPF, "simpanan koperasi" and so on. She also needs to get the documentation of the deed of the house and any other property under Din's name. Tina can submit the book price and if available, a rough estimate of the current market price related to the property.
Next, Tina has to total up the amount of savings and property. If the total amount is less than RM 100,000.00, she then has to proceed with her application at the Mahkamah Rendah Syariah (Syariah Lower Courts) near her place of residence. If the amount is more that RM 100,000.00, she has to go to the Mahkamah Tinggi Syariah (Syariah High Court), also near her place of residence.
At the relevant district Mahkamah Syariah she has to fill in an application form - "Permohonan Sijil Faraid Bagi Harta Pusaka" (Faraid Certificate of Application for Inheritence). With the form, she has to submit the copies of the following documents:
1) Applicant's IC
2) Death Certificate
3) Nikah Certificate
4) The heirs Birth Certificate and/or ICs
5) Statement of accounts (savings, bank, Tabung Haji, Korperasi etc.)
6) Registration fee of`RM 20.00 (please check at your nearest Mahkamah Syariah)
7) Other relevant documents
On the form, Tina will also have to declare the name of the relevant institution and the amount where the savings/Tabung Haji/Koperasi etc. is deposited in. In the same form, Tina will then have to declare all the heirs that are entitled to the estate.
After submitting the form, the Mahkamah Syariah will then process the application and the distribution of the estate according to division under Faraid. This process will take about a month. After that, Tina will have to go back to the Mahkamah Syariah, who will issue to her a "Sijil Faraid" (Faraid Certificate) which lists down the distribution according to the heirs' entitlement and the amount. Tina can then take the "Sijil Faraid" to the institutions that she has declared and apply for withdrawal of the amount that is allocated to her.
However, Tina has to ensure that the Mahkamah Syariah takes into account the following deductions from the estate of the deceased before distributing the estate according to Faraid:
1) the funeral expenses for the burial of the deceased is paid for by the estate of the deceased;
2) if the deceased leaves behind debts upon his death, those debts must be settled as a priority. This includes payment of zakat (tithe) which is not yet fulfilled;
3) that Tina gets her share of Harta Sepencarian (Property Acquired Out of Joint Effort) from the estate of the deceased;
4) if Din has left a will, then the will must be executed after all the above matters have been settled. However, the execution of the will is subjected to the following:
a) the will was not made for inheritors/heirs. Wills made for inheritors are void;
b) wills are valid only to the extent of one-third of the total net estate.
Tina and her children as well as Din's mother are all entitled to inherit from Din's estate. As for the division of the estate and the relationship of other person(s) qualified to inherit from the estate of the deceased, consult the Pegawai Sulh (Sulh Officer) at the Mahkamah Syariah. Since Syariah Law differs from state to state, ask for the relevant forms, documentation and procedures that have to be fulfilled from the Mahkamah Syariah near your place of residence.
*Names changed to protect WAO's client's confidentiality.
Prepared by Rozana Isa
Women's Aid Organisation - 20 Years of Service to Women and Children
Fortnightly Column by WAO on Sunday Mail (Reprinted with permission from Sunday Mail)