Division of inheritance if the deceased's father has been missing for years
Fatwa No: 291037

Question

Assalaamu alaykum. Please calculate the inheritance according to the following information -Does the deceased have male relatives who are entitled to inherit: (A son) Number 2 (A grandson [from the son]) Number 1 (A full brother) Number 1 (A nephew from a full brother) Number 1 -Does the deceased have female relatives who are entitled to inherit : (A daughter) Number 4 (A granddaughter [from the son]) Number 1 (A wife) Number 1 (A full sister) Number 2 - The Information about the missing relatives of the deceased are : Relationship - Father He was suffering from mental problem and tended to forget things and was on medication. One day, he left the house for the masjid and never returned. We registered a case with the police, but the police cannot trace him either. He has been missing for six-and-a-half years now - Information about the deceased’s debts: (Debts to people)

Answer

All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

As long as the deceased has debts, then these should be paid off before dividing the estate among the heirs because the repayment of the debts is given precedence over the right of the heirs in the estate. Allaah, The Exalted, says (what means): {…after any bequest he [may have] made or debt…} [Quran 4:11] The Kuwaiti Encyclopedia of Islamic Jurisprudence reads:

"It is incumbent on the heirs to pay off the debts to which the deceased is liable before dividing the deceased’s estate; this is because their prescribed shares cannot be clearly designated except after the repayment of the debt and all liabilities. Allaah, The Exalted, says (what means): {…after any bequest he [may have] made or debt…}[Quran 4:11] This is according to the scholarly consensus so as to clear the deceased’s liability or so that his skin cools down as the noble hadeeth advised."

As for the missing father, Muslim scholars held different opinions regarding the period that a person should be considered as missing before being officially declared dead. The view adopted in Islamweb is that this period differs according to the different circumstances and countries; it is left to the decision of the Islamic Judge. However, the basic principle is that the share of the missing person in the estate should be preserved until it is no longer hoped that he would come back or be found or until he is officially declared dead.

Hence, if the deceased passed away while his father is missing and his death is not verified nor has he been officially declared dead in a court of law, then he is considered one of the heirs whom are entitled to inherit. In this case, the father gets one sixth of the estate as a fixed share because the deceased has children; Allaah, The Exalted, says (what means): {…And for one's parents, to each one of them is a sixth of his estate if he left children…} [Quran 4:11] The deceased’s wife gets one eighth as a fixed share because the deceased has children; Allaah, The Exalted, says (what means): {…But if you leave a child, then for them is an eighth of what you leave, after any bequest you [may have] made or debt…} [Quran 4:12] The deceased’s two sons and four daughters get the remainder of the estate by virtue of taʻseeb (i.e. by virtue of having a paternal relation with the deceased and not having an allotted share, so they get what is left after the allotted shares have been distributed); the male gets double the share of the female as Allaah, The Exalted, says (what means): {Allaah instructs you concerning your children: for the male, what is equal to the share of two females...} [Quran 4:11]

The grandsons and granddaughters get no share from the estate because the deceased has a son. The Kuwaiti Encyclopedia of Islamic Jurisprudence reads, "Muslim jurists unanimously agreed that the son’s son is among the asabah (i.e. the deceased's relatives who are entitled to inherit by  virtue of taʻseeb). They also unamiously agreed that he is excluded from inheritance by the existence of the deceased’s direct son and that he excludes the lower ʻasabah."

The deceased’s full brother, full sisters, and nephew (full brother’s son) are not entitled to any share of the estate; they are excluded by the existence of the deceased’s son and father. Ibn Al-Munthir  may  Allaah  have  mercy  upon  him wrote, "Muslim jurists unanimously agreed that full-brothers and full-sisters and half-brothers and half-sisters from the father's side do not inherit if the deceased has a son or a grandson (son of a son) down to all levels; and they do not inherit as well if the deceased’s father is alive." [Al-Ijmaaʻ]

Hence, the estate should be divided into 192 shares; the father gets one-sixth (32 shares), the wife gets one-eighth (24 shares), each son gets 34 shares, and each daughter gets 17 shares.

Allaah Knows best.

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