Tarika (the estate of a deceased person)

The estate is what a deceased person leaves of property and rights, and it passes to the heirs at his death. The rights attached to it are paid in order: burial, debts, bequest, and then the division among heirs. ^{1 4}

For the Malikis, Shafi'is and Hanbalis the estate is all property and rights a deceased person leaves, including benefits; for the Hanafis it is property alone, free of a third party's claim on its specific thing. ^{1 2} Inheritance (irth) is a right that can be divided and passes to its holder when the person from whom it comes dies, by kinship or similar cause. ²

The majority rely on the hadith that whoever leaves property or a right, it belongs to his heirs. Some rights are personal and do not pass: custody, guardianship over property, and the donor's right to take back a gift. Some rights attached to the owner's own person, such as the right to a limited use of another's house, do not pass. Some rights attached to the owner's will, such as pre-emption and options of sale, pass according to the majority and not according to the Hanafis. Rights attached to property, such as a pledge or easements, pass by agreement. ^{2 8} Al-Qarafi said that only the penalty for slander, retaliation for limbs and wounds, and the benefit of limbs pass among rights to property; retaliation for killing does not pass. ⁹

The causes of inheritance are marriage, patronage and kinship, by agreement; the Malikis and Shafi'is add the public treasury. The bars are slavery, killing, and difference of religion, by agreement, with disputes over apostasy, difference of territory and a legal death. Death may be actual, legal by a ruling, or presumed, as for a foetus that dies through an injury, which the majority do not count as inheriting. ^{10 11 3} The heir need not accept the inheritance; it passes to him by the law. ³

If the estate has no debt attached to it, it passes from the moment of death. If a debt is attached, the Shafi'is and the more common Hanbali view hold that it passes at death; the Malikis hold it stays in the owner's ownership until the debt is paid; the Hanafis hold that if the debt takes the whole estate it stays in the owner's ownership, and otherwise it passes. ^{3 12} The increase of the estate after death goes to the heirs for those who hold it passes, and is added to the estate to pay debts for those who do not. ^{12 13}

If a man dies suddenly, without a visible illness, the heirs succeed at death by agreement. The sickness unto death is an illness in which death is feared and the sufferer cannot attend to his affairs, and he dies in it before a year has passed. Most jurists hold that the estate passes at death; some early Hanafis held that two-thirds of the estate passes from the start of the sickness. The sick man is restrained from gifts above a third of his estate to protect the heirs. The Malikis allow the gift to stand from the third only if the remaining property is safe, such as land; otherwise it is held back. ^{13 14 15}

The burial and shroud come first, the Hanafis (in the less known view) and Hanbalis holding this even when a debt is attached; the Malikis, Shafi'is and the well-known Hanafi view put a debt tied to a specific item before the burial. Then come the debts, then the bequest, then the heirs' shares. ^{4 5} Debts to God, such as zakat, expiations and the obligatory pilgrimage, fall at death for the Hanafis unless bequeathed from a third; the Malikis, Shafi'is and Hanbalis require them from the estate. The Malikis put the rights of people before the rights of God; the Shafi'is the rights of God first; the Hanbalis put debts tied to items first. ^{16 17 18} Debts incurred in health and in sickness: the majority treat them alike in payment, while the Hanafis put the debt of health before a debt acknowledged in sickness. ^{19 20}

The bequest is carried out after the debts and before the heirs' shares, and it comes from the third, not from the principal. It is a share, not a precedence, and if part of the estate is lost, the loss falls on the bequest and the heirs alike. ⁵ The estate is divided among the heirs after the rights are paid. If it was divided before debts were paid, the Hanafis and Malikis undo the division when a debt appears; the Shafi'is treat division as separation that is not undone; the Hanbalis do not undo it for a debt. ^{6 21} A division is undone by mutual agreement, by a debt appearing, by an heir or legatee appearing, by a gross loss, or by an error in what was divided. ²¹

The Hanafis, Malikis and one Hanbali view do not allow the heirs to deal with an estate fully taken by debt, except when the debt is paid, the creditors agree, or the judge permits it. The Shafi'is and one Hanafi view hold that such a dealing is not valid unless it pays the debt. ⁷ If some heirs are minors, the dealing is for the guardian or the judge. ⁷

If there is no heir, or heirs do not take all of it, the schools differ. Those who hold return (radd) say the estate does not pass to the public treasury while an heir exists; those who do not hold return say the treasury takes what is left. The Hanafis and Hanbalis treat that as spoils (fay'), the Malikis and Shafi'is as inheritance by kinship. ⁷