ISLAMIC WILLS & PROBATE

At this time more than ever, making clear to your family members about your wishes, should anything happen to you, is all the more important.

This can include information about:

  1. How you want burial and funeral rites dealt with;

  2. Guardianship for your children;  

  3. Gifts you want to make;

  4. Dealing with any specific asset/s and especially any debts: Shariah debts are to be paid immediately and ideally you should make your family aware of your debts and keep a record of their assets and liabilities so your family are aware what needs to be dealt with;

  5. Any advice you may wish to give your family generally; and

  6. Any charitable gifts you may wish to make as a legacy or ongoing Sadaqah Jarriyah.

There are different approaches to dealing with the interaction of achieving Shariah compliance and managing the tax, legal and practical implications for living in the UK. If you are unclear, we would recommend speaking to one (or more) of the advisers so you can ask what the different approaches and implications mean for your situation so you can decide the best way forward.

 

Where there is no Will, the Rules of Intestacy apply, which would not be in line with the Shariah principles of inheritance and may not be in accordance with your wishes (https://www.gov.uk/inherits-someone-dies-without-will)


1. How can I calculate what my heirs should inherit under the Shariah fixed heirship provisions?

You can broadly calculate the specific Islamic distribution by using any of the following software online:

http://inheritance.ilmsummit.org/projects/inheritance/home.aspx

http://www.islamicsoftware.org/irth/irth.html 

 

2. How can I write a Will?

Firstly, before you prepare your Will , take stock and keep account: It is important to keep clear written records of what you own, your assets (property, bank account(s), car etc.)  and liabilities. The values of the assets you own will be important for working out the most suitable option for preparing your Will and any possible inheritance tax liabilities.  You should keep this updated and in a safe place or with a trusted person.

Preparing a Will: You have 3 options:

Option 1: Use a free Islamic template;

Option 2
: Instruct a Solicitor/Barrister, for less simple matters, with knowledge of Islamic inheritance laws, expertise in Islamic Wills and preferably experience in writing simple Wills, testamentary trust Wills, joint Wills and living Wills and the relevant tax and legal implications.

Option 3: Instruct a Muslim "Will-Writer" with expertise in Islamic inheritance laws for a basic Will;

There are some free Will templates available here as well as a list of law firms that you may wish to use. Please note: We recommend you carry out your own due diligence and assess/ ask questions to allow you to ascertain that you are satisfied of their suitability. 
 

Those who advise on such matters would usually advise you to seek proper tax advice. Whether this is necessary or not depends upon each individual’s circumstances. We would recommend that you speak to someone so that you can be sure that any Will you put in place is suitable for you and your family’s circumstances.

 


Option 1: Using a free Islamic Will template

Use a free Islamic Will template if your estate is fairly straightforward and worth under £325,000.

  • If your main asset is a family home owned in your name only and it is under the value of £325,000 then a template Wills may be suitable for you, without the need to seek further legal advice. 

  • Each individual is entitled to a ‘tax free’ allowance on death of £325,000, often referred to as the Nil Rate Band allowance.

  • Individuals who have the following are entitled to an additional ‘Residence Nil Rate Band’:

- a family home (worth at least £175,000)

direct descants who inherit the family home specifically.

  • Please note that the tax-free amount depends on who you leave the property to, when you pass away and the overall value of your estate. 

  • If your estate is fairly straightforward and you fall into this category, you may wish to use a free template. It is vital that you read the guidance offered with each template before using it.

  • If using a free Islamic Will, for to be valid under English law, it should be witnessed by 2 independent witnesses at the same time in your presence (testator), Executors appointed and copies should be stored.

The Template Will may not be suitable if:

  • You own your property jointly (which is usually the case, known as “Joint Tenants”) rather than as ”Tenants in Common” (you can usually perform a search on the Land Registry website, for a small fee, to check what form of ownership you have.


    We understand that currently this service may be suspended, in which case you can check your documents from when you purchased the property or contact a law firm who can assist. 

    You may need to sever you tenancy otherwise using the template Will may not work as intended or achieve your aims);

  • Where you are married and you wish to seek to ensure that your surviving spouse is able to continue to live in the property after you pass away, to secure a roof over their head, which is important under Shariah principles (you can include your wishes to your heirs regarding this in a non-binding letter or use a different form of planning to achieve what you wish);

  • You have elderly parents or children who may live in your main family home as their main home too. (If there is any existing or possible disharmony then careful thought may be needed to seek to avoid the terms of any Will leading to bigger issues. Often where extended families live in one home, disputes, legal and tax issues can arise it is sensible to discuss your wishes and seek advice where needed of any legal and tax implications).

You may want to use one of the following free templates:

  • Dr Abid Hussain, writer of "The Islamic Law of Wills and Inheritance" offers a template will at -. Practical instructions are available at https://bit.ly/MyIslamicWill


 

Option 2: Should I use a solicitor/barrister?

For less straightforward matters with a sizeable estate, we strongly advise you to seek legal advice. This includes but is not limited to, circumstances where you have assets abroad and assets other than just a family home.

Usually, specific advice should be sought by an experienced legal practitioner, where you have:

  1. Any assets abroad and assets other than just a family home, such as a family business or commercial property;

  2. Any pension assets (as pensions fall outside of the provisions of a Will and you should consult a specialist pension advisor in this regard );

  3. Assets above the tax free threshold of £325,000;

  4. Members of your family who are on means tested state benefits;

  5. Any vulnerable members of your family (ie disabled beneficiaries or those who has lost mental capacity;

  6. Member of your family who are minor children;

  7. Member of your family who may be suffering from some personal, tax, matrimonial or financial difficulties.  

Try to ensure, whoever you choose, you pay a fixed fee and not a % of the value of your assets (referred to as your “estate”). Check what the fee will be to make any amendments at any point in the future.

You may wish to instruct one of the following legal firms:

  • https://www.amansolicitors.com,
    Are offering a discounted Wills service from their usual price of £250 plus Vat to £200 plus VAT for one Will.  If a husband and wife wish to have their Wills prepared at the same time, this can be done for £300 plus VAT.

  • http://blakewells.co.uk
    Are offering a discounted service. Their usual fees are £250 plus VAT per Will. The discounted rate is £150 plus VAT.

  • https://www.jmw.co.uk
    Are offering mirror Islamic Wills (husband and wife) for £500 plus VAT and more complex Wills for a fixed fee.

  • https://private-wealth.bclplaw.com/reshmi-manekporia
    Reshmi Manekporia has experience where the assets involved are significant, including businesses, or where there are international dimensions.

     

  • https://saracenssolicitors.co.uk
    Offering a discounted Will writing service during Lock-Down. Basic Wills from £200 + VAT. Basic LPAs from £200 + VAT. Bespoke costs available on demand. Inheritance tax planning available through our tax partners.
     

Special Offers: Please note that in light of the current Covid-19 outbreak, some of these firms have kindly agreed to offer discounted rates. If you decide to use their services, please use the code: MLPG (Muslim Lawyers ProBono Group) to get your discount. The discounted prices are based on a basic Will. Prices may vary depending on complexity.

Option 3: Should I use a Will-Writer instead of a solicitor/ barrister?

If you do not want to use a lawyer (solicitor or barrister) , a "Will-writing service" is usually cheaper. Many companies offering Will writing are not regulated in the same way as lawyers, so you will not have the same protection if something goes wrong. Please ensure the following:

  • They must have training that is regularly updated: Not many Will-writers are legally qualified. They have should have been trained in Wills and estate planning. 

  • Check that they have the requisite Shariah expertise and offer advice when writing your Islamic Will. Without this, it is just the same as using a free Islamic Will template.

  • They must be insured to cover legal costs if your Will is challenged: Choose a service that has at least £2 million of professional indemnity cover - if things go wrong, this gives you a better chance of compensation.

  • Check on Companies House as to how long they have been trading because if they close down, you have no legal recourse if there are any issues later.

  • Check that they follow a code of practice approved by the Trading Standards Institute: Check if they are a member of a recognised trade body, eg The Society of Will Writers, Institute of Professional Will Writers.

  • Check their terms and conditions.

6. Do I need Witnesses?

  • In order to be valid, a Will requires the signatures of two independent witnesses. Both witnesses must see you (as the “Testator”) sign the Will and see each other sign. You as the testator also have to see both witnesses sign. Both witnesses must be physically present throughout the signing process.

  • The witnesses cannot be someone who benefits under the Will (a “beneficiary”), the spouse of a beneficiary, or an executor to the Will. If your Will leaves anything to a witness, the whole document could be invalid.

  • The current COVID-19 crisis and ‘social distancing’ measures may cause practical difficulties in having two independent witnesses sign the Will. There may be a relaxation of these requirements in the near future so it my be useful to check online if there are any updates on this.

  • Aman Solicitors have suggested some possible solutions to this in the meantime:

- If you have access to 2 independent witnesses living within your         household have them sign.

Ask your neighbours by signing your Will from more than 2 metres way in their presence and then have it safely passed to your neighbours for signing and safely returned to you.

  • Other advisers have suggested perhaps signing with your witnesses witnessing through a Window and/or using gloves and different pens to to protect those handling the Will.

  • If you cannot have your Will safely witnessed then please do not do so. All risks from the Corona Virus must be avoided.

  • Your witnesses may be called to confirm that they Witnessed your signing the Will.  It may be helpful, if appropriate, as contemporaneous proof, to email a scanned copy of  your Will to someone trusted and copy in your witnesses who can confirm by email that they have received copies and that they witnessed the Will.

  • Helpful resource for witnessing of documents in the current crisis: 

https://www.step.org/news/making-will-time-coronavirus

https://www.willwriters.com/blog/coronavirus-attestation-wills/

7. Who should you appoint as your Executor and/or Guardians?

Choosing your Executors and/or Guardians:

  • It is important to give some thought to who may be most suitable for these roles. They need to be someone you trust, to not only follow your wishes, but be able to appreciate what may be most suitable for your heirs and seek advice where they need to.  Many people delay making a Will as they are not clear on who to choose for these roles. The important thing is to prepare your Will and choose people that are most suitable for the roles, you can always change things while you are alive but it is not always so easy for you family to change matters where you do not have a Will in place.

  • Who you choose as a guardian for your children may seem a daunting task for some which may lead to delays finalising your Will. It is usually most sensible to choose someone that your children will feel safe and comfortable to be with as their guardian. There are Shariah principles about who should have certain custodial rights and you can advise your guardians who they should consult in key decisions for your children and to take any Shariah or practical advice from specific people into account for different purposes (for example, who to take advice on education from etc). 

  • It is usually sensible to advise your family of your wishes, however, if advising family members as to your choice of guardians may cause some possible issues, then it may be more sensible not to raise the topic if it means your concerns stop you finalising your Will. (You are preparing a Will in the unlikely event you pass away while your children need guardians, so though it is advisable to advise your family of your choice of guardian, it is not a necessity if this may make it more difficult to finalise your Will, or it may otherwise cause disharmony in the family.)

An executor needs to be a responsible adult capable of administering your estate on your death (https://www.gov.uk/applying-for-probate/if-youre-an-executor:
 

An Executors main functions will be:

  1. To ascertain the value of your estate and prepare a schedule of the assets;

  2. Unless the estate is very small, to obtain authority from the Probate Registry to administer the estate (a similar process in Scotland requires the executor to obtain "confirmation");

  3. To pay any debts due, including Inheritance Tax;

  4. To distribute the residue of the estate to those persons entitled, either in terms of a Will or by legal entitlement.


Solicitors or Barristers as Executors:

  • The benefits are continuity and expertise. 

  • Also, with a firm of solicitors, the firm becomes the executor and there will always be someone there to obtain Probate and wind up your estate as long as the firm is still around.

  • This can be an expensive option. Solicitors have fixed fees for winding up an estate and obtaining Probate and they are often high – as much as 2.5% of the value of the estate or more. However, the majority of solicitors apply an hourly charge, based on the work involved and who undertakes it.

  • Bear in mind that most solicitors charge on a time basis so every time they answer the phone, the clock starts ticking. There are firms that give fixed-price quotations for probate work, based on the size of the estate and you should always aim to obtain a fixed fee before accepting a quote for probate. 

  • Solicitors are generally sound executors, but they can be slow and come at a price but may be required for a wealthy estate.

Other Solutions:

  • One option is to make the beneficiaries executors. However, it is often thought sensible to appoint trustworthy adults who are non-beneficiaries which should ensure objectivity and neutrality.

  • Placing this possibly onerous task on your close family/friends can be stressful but need not be if you have taken the time to sort and keep your affairs organised. You should keep a detailed list of all of your assets, liabilities and details of all of your immediate family members alongside your original Will. This will ensure the Executor does not have too much trouble in valuing the estate for the purposes of getting probate and has a solution for any Inheritance Tax Payment that maybe due.

  • If you do make members of the family or friends as executors and one dies, you will have to appoint a replacement. Some Will templates suggest you do this in the Will or you can prepare a letter to accompany your Will indicating your preferences for such matters like this if it is not included in your Will.  

8. Where should you store your Will?

It is important that your Will is stored safely and you tell your executors where they will be able to find it after your death.

At Home:

You could keep your Will in a safe place at home with your other business papers. It is likely that you will want to re-visit your Will from time to time, so it is usually convenient if you have a copy handy for that purpose. However, there is then the risk it might be accidentally thrown away or damaged.  It is prudent to review your Will every 3-5 years or when family circumstances change, such as a marriage, divorce or establishment of a new business etc.

Legal firm:

If a legal firm helps you write your Will, they usually store it for free. Make sure you keep a copy.  It is usually sensible to give a copy to any executor(s) if possible too.

Will-writer:

If you use a Will-writing service, they can also store your Will, but there may be an extra charge. Also, you may be less protected than with a solicitor, for example, if they cease trading, so do ensure you keep a copy.

Probate Registry:

A very good place to keep your Will is with the Probate Registry. They do charge a fee, but it is only nominal. They give you a certificate of deposit. If you lose that, it may not be possible for your executors to obtain your Will. This may be a good solution if you are concerned that someone may tamper with your Will, or simply because you want to ensure confidentiality. Another benefit of using the Probate Registry is that they keep an index of Wills which is searched by them automatically every time any application for a grant of probate is made. So, if your Will is with them, there is no chance that a fraudulent Will can be proved.  On the other hand, it is important you remember to lodge any updates to your Will at the Probate Registry too.

For further information on Probate Registry, please visit the Probate Service in England and Wales, the Probate Northern Ireland Office, and Citizens Advice Scotland website.


9. What is the benefit in having a Lasting Power of Attorney (LPA)?

  • A Lasting Power of Attorney (LPA) is a legal document where someone (while they still have mental capacity) nominates a trusted friend or relative to look after their affairs if they lost capacity.

  • If you lose mental capacity, unless you have already filled in the Power of Attorney forms, your loved ones will need to apply through court to become 'deputy', a long and expensive process.

  • There are 2 types of Lasting Power of Attorney: 

(1) health and welfare;

(2) property and financial affairs.

  • Your LPA is only valid once registered so it is important to register it once it is made. It costs £82 to register each LPA unless you get a reduction or exemption. This means it costs £164 to register both a property and financial affairs LPA and a health and welfare LPA.

Suggested solicitors     

    

  • https://www.amansolicitors.com 
    Are offering a discounted Wills service from their usual price of £250 plus Vat to £200 plus VAT for one will.  If a husband and wife wish to have their wills prepared at the same time, this can be done for £300 plus VAT.

  • http://blakewells.co.uk
    Are offering a discounted service. Their usual fees are £250 plus VAT per will. The discounted rate is £150 plus VAT.

  • https://saracenssolicitors.co.uk 
    Offering a discounted Will writing service during Lock-Down. Basic Wills from £200 + VAT. Basic LPAs from £200 + VAT. Bespoke costs available on demand. Inheritance tax planning available through our tax partners.

www.mlpbg.com | Muslim Lawyers Pro Bono Group

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