Estate Planning for Muslim Homeowners: How Is It Different?

·9-min read

Muslims in Singapore are subjected to a different set of laws when it comes to inheritance as compared to non-Muslims. In this guide, produced in partnership with legacy planning marketplace Immortalize, we explore the key differences, issues, and tips for property inheritance for Muslim homeowners in Singapore.

Default Distribution

When you pass away, how your property will be distributed depends on:

  1. The manner in which you hold the property;

  2. Whether you have a will;

  3. Whether you are a Muslim.

As mentioned in our estate planning 101 guide, if you hold the property as a joint tenant, the surviving tenant will take over your share of the property. This applies to both Muslims and non-Muslims.

If you are the sole owner or hold the property as a tenant-in-common, the following applies:

Without a will, a non-Muslim’s property will be distributed based on intestacy law while a Muslim’s property will be divided based on Faraid distribution (more on that later).

With a will, a non-Muslim’s property will be distributed based on the will while a Muslim’s property will be divided two-third based on Faraid distribution and one-third based on the will. Note that for a Muslim will, the beneficiaries can only be people that are not entitled to receive under Faraid distribution, such as friends or charity.

Here’s an example by Mohammed Shakirin, partner at IRB Law LLP to illustrate the difference:

“Let's say we have a father and has two children, one good son and one naughty son. A non-Muslim father says, ‘I want to give 100% of my property to my good son’. He writes a will and then passes away. In a non-Muslim scenario, 100% of the property will go to the good son. Put it in the context of a Muslim family, the will will not be valid, and the naughty son will still be entitled to 50% of the property.”

Related article: Muslim Inheritance and Faraid Distribution in Singapore

Who is Considered A Muslim?

“When it comes to a Muslim will, people can ask the most basic of questions. Does Muslim law apply to me? Can I make a will that does not comply with Muslim law?”, says Ahmad Nizam Abbas, senior partner and head of family law practice at Emerald Law.

“Under the Administration of Muslim Law Act (“AMLA”), if you are a Muslim domiciled in Singapore, you can’t get out of it. The Muslim law applies to you,” Nizam said. “Even if you have done things which are prohibited as a Muslim, it doesn’t make you a non-Muslim. There must be clear evidence that you have expressly renounced the faith.”

What is Faraid Distribution?

Faraid is the Muslim law on inheritance. Who the beneficiaries are will depend on the family matrix. You can find an Online Trial Inheritance calculator on Singapore’s Syariah Court website.

For example, a son will get twice the share of a daughter and in the absence of what’s considered a male heir (eg. son or uncle), a portion of the estate will be given to the community called Baitulmal.

“The idea is that in Muslim law, there must be a male person, called Wali, to be responsible for the younger women in the family,” according to Mohammed Shakirin at IRB Law LLP. “If you have a son, then your uncles won’t get. But if you only have daughters, then uncles can get.”

Adopted Children

Unlike non-Muslims, adopted children in Muslim families are not considered beneficiaries under Faraid and has to be provided for in the will.

Children Born Out of Wedlock

A child born out of lawful Islamic marriage can inherit from his/her mother but not the father.

Non-Muslims Are Not Beneficiaries

“The general rule is that non-Muslims are not beneficiaries of a Muslim who passes away without a will,” according to Ahmad Nizam Abbas from Emerald Law.

Here’s an example from Nizam to explain:

“In a case I handled some years ago, there was a will which stated that ‘I give everything to my wife, in accordance with Muslim law’. The couple were married under civil law as the wife was a non-Muslim. Of course, the will was invalid. Under Muslim law, the marriage was not recognised. This resulted in the wife receiving nothing under the Inheritance Certificate issued by the Syariah Court of Singapore. Fortunately for the wife, all the deceased’s siblings agreed to donate back their respective shares to the wife and this was recorded in a Deed of Family Arrangement.”

Additional Estate Planning Tools for Muslims

A point to note is that for Muslims, Faraid only applies after a person’s death. During one’s lifetime, a Muslim can give to whoever he/she wants. If you plan in advance, there are tools available that can help you better protect the interest of your family and loved ones.

In the following section, we look at some tools that lawyers use to help Muslims plan for their property.

Joint Tenancy

If you hold a joint tenancy with your spouse/loved ones, your share of the property will go to the surviving joint tenants after you pass away.

Hibah

A Hibah is a gift made when you are alive. You can gift to anyone when you are alive.

Trust

Similar to non-Muslims, trust for Muslims can potentially be used as a tool for transfer, tax optimization and to achieve other goals.

Read more about trust for estate planning and other related topics:

“Trust is my prediction as the next big thing,” according to Ahmad Nizam Abbas from Emerald Law. “The Islamic trust is a bit more complicated because it is very strict on certain things.”

Nizam explains below:

“There needs to be certainty on when the distribution actually takes place, and that the settlor must have no control over the trust. You cannot pretend to create a trust for your child, but still remain the trustee and control the monies in and out of it because the giving is very important under Islamic trust. The investment of the funds under an Islamic trust must also not involve activities that are prohibited under the religion (e.g. gambling, alcohol).”

Deed of Family Arrangement

Deed of family arrangement is a legal document that can allow beneficiaries of an estate to alter the distribution made under the will or intestacy laws.

Here’s an illustration by Nizam on the deed of family arrangement in a Muslim context:

“You cannot put Faraid beneficiaries as beneficiaries of the will as this would be regarded as an attempt to circumvent the Muslim law of inheritance. For example, if you give your daughter in the will so that it brings up her share to equalize with her brother, that will will be invalid. The brother may, if he wishes, announce his intention to redistribute his share so that he and his sister have equal shares. This can be made in a Deed of Family Arrangement. However, it is necessary that after the father passes away, there is a confirmation that he still agrees to the redistribution.”

Grey Areas

Other instruments that can potentially be used are Nuzriah and Hibah Ruqbah.

Nuzriah

Nuzriah is a vow made to perform certain actions if certain conditions are met.

Here’s an illustration from Nizam:

“A person can enter into a Nuzriah that says, ‘Three days before I pass away, my property will pass to X, Y, Z’. This is practiced in some parts of the Middle East and the Islamic Religious Council of Singapore (“MUIS”), on its website, has approved of its use in Singapore. However, in 2004, there was a High Court case that ruled that a particular Nuzriah was invalid as it did not fulfil a condition in AMLA whereby a Nuzriah can only be made for up to 1/3 of the estate of the settlor. This caused many, including lawyers, to hesitate on making a Nuzriah.”

Hibah Ruqbah

Here’s an explanation from Nizam:

“Hibah Ruqbah is a form of contract. It says something like this, ‘I am giving you this property, but it’s only yours after I pass away. If you pass away before me, it comes back to me’. There is no equivalent of this under civil law. It is an instrument which MUIS has been promoting on their website and anecdotally, we hear of a number of Hibah Ruqbahs being done.

There was a High Court case in 2017 where a mother did a Hibah Ruqbah, giving her HDB flat to her daughter. Her two sons objected and in the High Court, the judge said that that gift of Hibah Ruqbah was not valid because under the HDB Act, when you want to give away or dispose of any HDB property, you need to obtain the prior approval of the HDB first. The judge did not state any opinion on private properties but what it means for practitioners is that we have another grey area. If one does a Hibah Ruqbah for a private property, it is important that you must ensure that not only does it comply with Muslim law, but with the other laws of the land. All the factors must be harmonized.”

Muslim inheritance issues are complicated. We recommend consulting a lawyer for advice. You can find lawyers who can advise on Muslim law on Immortalize legacy planning marketplace.

More FAQs on Muslim Inheritance

How Is Estate Planning Different for Muslims in Singapore?

For Muslims, you will need to do your estate planning taking Faraid, or Muslim inheritance law, into consideration. Even with a valid will, only up to 1/3 of your estate can be distributed to non-Faraid beneficiaries.

What Are the Rules of Inheritance in Muslim Law?

Under Muslim inheritance law, how your assets are distributed will depend on your family matrix.

Is Faraid Compulsory?

Yes, if you are a Muslim domiciled in Singapore.

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This guide was written in collaboration with Immortalize, a legacy planning marketplace where you can find out more and compare lawyers and their rates and services.

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