Inheritance and the will
Inheritance laws of the ACT are quite different from the Shariah law and in the absence of any will (according to Islamic law or otherwise), inheritance is settled under the laws of ACT.
The manner of distribution is described in the sixth schedule of Administrative and Probate Act 1929 as amended in August 1991. Estate means the remainder of inheritance after paying all the debts, duties and administration charges and refers to the property owned by the deceased or his share in jointly owned property or assets.
Case I: Survived with spouse and no children
ACT Law
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Spouse is entitled to the whole of his estate.
Shariah Law
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Spouse is entitled to 1/4, parents and brothers and sisters of the deceased are entitled to the rest distributed in a fixed ratio.
Case II: survived with spouse and children
ACT Law
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If his estate is less than $100 000, spouse gets the entire share.
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If the state is more than $100 000, spouse gets the first 100 000 plus an interest calculated at 8 % per annum until the spouse receives her share.
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If survived by one child, spouse gets half of the balance above $100 000.
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If more than 1 children, spouse gets at least a 1/3 of the balance above $ 100 000.
Shariah Law
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Spouse gets 1/8, sons gets twice the share as the daughters from the remainder of the estate regardless of the value.
Case III: survived with no spouse
ACT Law
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If children exist, then they are entitled to the entire estate.
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If no children, then parents are entitled to the estate.
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If no children and no parents then the next of kin (the nearest relative by birth) is entitled to the estate.
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If no children, no parents and no next of kin, the estate goes to the ACT government.
Shariah Law
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Parents each receive 1/6 if children exist, and sons are entitled to twice the share of the daughters from the remainder.
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If no children exist, mother is entitled to 1/3 and father of 2/3.
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If no children and no parents then estate is divided between the brothers and sisters and grand children ( if existing) according to a fixed ratio.
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If no living relations exist, then the estate goes to Baitulmall. Relations do not have to be living in the same country to be entitled to their share.
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Relations of unknown whereabout at the time of settlement, turning up later and proving their entitlement are given their share from the already distributed estate.
Distribution of estate according to the Shariah law will only take place if one leaves a proper will as recognised by the ACT Law.
If you make a will (under Shariah Law or otherwise) during your life time, you will be doing a great service to your survivors by avoiding the hassles and bitterness which sometimes accompany such distribution of estate and ensuring that those entitled receive their proper share.
You can decide on any of the following options:
1. ACT Public Trustee:
Contact the office of the Public Trustee for the ACT in Canberra. They charge $50 for preparing a will. They will also charge a minimum of $270 or no more than 4% of the gross value of the estate for administering the will. They will not administer the will without being appointed as executor. Family home is not regarded as part of the estate when determining their commission. Their charges are also reduced or waived for recipient of Social Security benefits or those in financial hardship. All charges are subject to change and it is always advisable to ask for charges upfront.
2. Do It Yourself:
You can write it yourself and get it witnessed. A Muslim solicitor, member of Canberra Islamic Centre, will help you write a will. This service is available at a very nominal charge.
3. Lawyers:
Their rates vary according to their clientele. They may charge you anywhere between $70 to $100 for a half an hour of consultation. Charges for drafting, witnessing, registering and administering the will vary enormously to give a general estimate.
The document of distribution of inheritance according to the Shariah is quite complicated for general use. This law ensures that those entitled to a share are not deprived of their rightful inheritance. As each inheritance case is unique, the above information should be treated as a guide only. A proper will can only be written when all the relevant information is available for that case. Inheritance share and entitlement varies slightly with different muslaks like Hanafi, Sha'afi etc.