Question:-
What are the responsibilities of executors of an estate? Do they need permission of the heirs for any transaction, or do they have unilateral power in the execution of their duties? Can they sell property without the consent of the heirs?
Answer:-
1. An executor is basically required to ensure that the estate is dissolved in accordance to the Shari’ee law of succession, and all the heirs ultimately receive their dues as prescribed in Shariah.
The executor will ensure that the burial expenses are paid, outstanding debts of the deceased are settled, any bequests made by the deceased fulfilled with the proviso that it does not exceed 1/3 of the nett estate, and the remaining funds and assets distributed amongst the heirs according to the Shari’ee law of succession. Our Darul Ifta will be able to provide a share certificate indicating the shares of each heir. These are the basic responsibilities of the executor from a Shari’ee perspective.
At the same, he will be required to attend to the winding up of the estate legally. Hence, he will be required to attain a letter of executorship and open an estate account wherein all the deceased person’s funds will be transferred until the final distribution is carried out. However, if the deceased left behind any cash funds at home, then it is not necessary that such funds are deposited into the estate account. These amounts may be distributed (by the executor) amongst the heirs in accordance to the Shari’ee law of succession. He will also have to liaise with the attorneys appointed, to wind up the estate until the estate is dissolved.
2. The duty of executorship is no ordinary duty. Rather, it is an Amaanat upon a person which should be fulfilled in a satisfactory manner. It is, therefore, imperative and necessary, that every transaction is recorded and all funds, to the last cent, are accounted for, or else, one will be held accountable in the court of Allah Ta’ala. One should therefore request receipts for all expenditure from the deceased’s estate (whether for burial expenses or monies spent on some virtuous cause due to fulfilling a bequest of the deceased etc.) which should be placed on record. There should be total transparency in all matters, and records should be made available in the case of a dispute arising at any stage. The executor should keep records of all transactions when distributing funds to the heirs as well, and each heir, on receiving his/her share, should sign a letter of acknowledgement of the amount/s received.
3. Guests attending the funeral cannot be fed from the deceased’s estate. If any particular heir wishes to feed guests, then he/she may do so from his/her personal funds. If funds were used from the deceased’s estate for feeding guests, then the executor should ensure that these funds are returned to the estate, unless all the heirs are in agreement with the arrangement, and there aren’t any minors involved.
4. The executors cannot transact in the shares of the heirs. In other words, they are not permitted to utilize estate funds to purchase any further assets without the consent of the heirs, nor are they permitted to sell any of the assets belonging to the deceased’s estate without their consent, particularly when the heirs are all Baaligh. The heirs own their respective shares in the estate and are entitled to transact in their respective shares as they wish and desire. However, if the executors have any suggestions, then they may propose their suggestions to the heirs, but it is again not binding on the heirs to accept and comply to their proposal, if they are not willing to do so.
5. The following pertains to an executor controlling the estate of orphans. If an executor has been appointed by the Muslim judge (or a reliable Muslim institute or Darul Ifta in our times), to attend to the needs of the estate (where the deceased passed away without appointing an executor), and the appointed executor intends purchasing any goods or assets belonging to the orphans from the deceased’s estate, then it will not be permissible for him to do so. However, if the executor was appointed by the orphan children’s father (testator), then he will be permitted to purchase from the deceased’s estate if there is apparent benefit for the orphans in the sale.
The jurists have defined “apparent benefit” as follows: The executor must purchase a commodity worth R10, for R15 (at 50% higher than the market value), from the orphan as far as movable items (such as furniture or household contents etc.) are concerned. On the other hand, if the executor intends selling an item to the orphans, then an item worth R15, must be sold to the orphans at R10.
Immovable items, such as properties, should be purchased from the orphans at twice the value (of the property) according to some jurists, whilst other jurists state that the executor cannot purchase assets belonging to an orphan even though it may be at twice the market value. Yes, it may be sold to a third party at twice the market value, but not to the executor. And, if the executor sells any assets to the orphans, then it should be at half the market value of the asset/property.
6. Purchasing a property from an orphan in instalments is permissible, on condition that, the total installment period is specified. However, the jurists have written that the property should only be sold in installments to a wealthy person (who will be in a position to meet the installments). The installment period should not be so lengthy that the orphan has to undergo difficulty waiting for his funds. However, the property of orphans should not be sold on terms in this day and age, since honesty and trustworthiness are rare qualities.
7. If the estate consists of both adults and minors (orphans), then the executor must consult the adult heirs and seek their permission before proceeding with the sale of their respective portions of assets. The permission and consent of minors is not required by the executors.
وان باع الوصى او اشترى مال اليتيم من نفسه فان كان وصى القاضى لا يجوز ذلك مطلقا لانه وكيله وان كان وصى الاب جاز بشرط منفعة ظاهرة للصغير
تفسير المنفعة الظاهرة ان يبيع ما يساوى خمسة عشربعشرة من الصغير او يشترى ما يساوى عشرة بخمسة عشر لنفسه من مال الصغير——–وهى فى العقارعند البعض ان يشترى بضعف القيمة ويبيع لنصفها شامي ص709 ج6
وجاز بيعه عقار صغير من اجنبى لا من نفسه بضعيف قيمته ——الخ
وصح بيعه وشراءه اطلقهما فشمل النقد والنسيئة الى اجل متعارف لكن من ملئ—-قال فى الخانية واذا باع شيئا من تركة الميت بنسيئة فان كان يتضرر به اليتيم بان كان الاجل فاحشا لا يجوز شامى ص708 ج6
وان كلهم صغارا يبيع العروض والعقار وان البعض صغارا والبعض كبارا فكذلك عنده وعندهما يبيع نصيب الصغار ولو من العقار دون الكبار الا كانوا غيبا فيبيع العروض وقولهما القياس وبه ناخذ شامى ص710 ج6
ALLAH TA’ALA KNOWS BEST!
ANSWERED BY:
Mufti Mohammed Desai
Date: 20 Rajab 1443 / 22 February 2022
