Question:-
What are the duties/roles of executors and heirs in the winding up of an estate? Do executors have the final decision regarding disposing of assets?
Do heirs/beneficiaries have any authority to make decisions on the disposal or the use of assets?
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 are 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 responsibilities of the executor from a Shari’ee perspective.
At the same time, 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. 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. When a person passes away, then his ownership in his assets, properties, cash etc. ceases and passes over to his heirs. Each heir owns a share in the deceased’s estate as stipulated in Shariah. Since each heir owns a stipulated portion of the estate, he reserves the right to deal in his portion of the estate as he wishes. An executor cannot make any decisions (on behalf of an heir) in his/her portion of the estate, without their happiness and consent. Hence, an executor cannot force any heir to dispose of any of his assets if he is not willing to do so, nor can he force an heir to retain any of his assets if the heir intends disposing of it. The decision of keeping or disposing of one’s assets lies totally with the heirs, and not the executor. We hope that the above explanation clarifies the issue. If you require any further assistance, we will be more than happy to assist you Insha’Allah.
ALLAH TA’ALA KNOWS BEST!
ANSWERED BY:
Mufti Mohammed Desai
Date: 15 Rajab 1443 / 17 February 2022
