WILLS & PROBATE FOR MUSLIM

 Faraid: When it will be applicable?

 What constitutes as “harta pusaka”
 Eligible Heirs
 Apportionment
 Authority/Laws
o Small Estate (Distribution) Act 1955
o Respective State’s Enactment/Ordinance
o Islamic Family Law (Federal Territories) Act 1984
 Administration of Estate of Deceased
o Jurisdiction
 Testate or intestate
 Hierarchy of deceased’s estate distribution
 What to do? Steps & procedures

Faraid?
Commonly known to the public as the Islamic Law of Succession which comprises of: -
- Eligible heirs
- Apportionment
- Type of estate/property (movable/immovable)
The Muslim society misconceptions is that, this ‘Faraid’ is a must in distributing the estate of the
deceased. In contrary to the current misconception, ‘Faraid’ is the last in the hierarchy of deceased’s
estate distribution. There are several matters that are crucial and needed to be settled first being: -
1) Deceased’s funeral expenses
2) Debts (MUST BE SETTLED NO MATTER WHAT)
a. To Allah (Zakat, Nazar, Kifarah, Haji & FIdyah)
b. To people
3) Matrimonial property (Harta Sepencarian) – must be claimed!
4) Testate (died leaving any form of will, be it written or orally) i.e.,
- Execution of Will (Testate) – no more than 1/3 of the “harta pusaka”
- Execution of Hibah (Testate) – no more than 1/3 of the “harta pusaka”
5) Intestate (died without leaving any proper will)
- Agreement of all heirs in distributing the deceased estate
- Faraid
Therefore, one might say that ‘Faraid’, might be optional in the distribution of deceased
estate/property, and it is also more on a guideline, which has been laid out by Islam. The purpose is to
ease the conflict that may occur between the heirs of the deceased when it comes to the distribution.
But, once all the heirs have opted for ‘Faraid’ as the manner of distributing the deceased estate, it will
bind all the heirs on the apportionment.
What constitutes as “harta pusaka”?
It is commonly known to the society as any property/estate left by the deceased. But, not all
property/estate left by the deceased constitutes as “harta pusaka”.

Pillars of Islamic Inheritance (Rukun Pusaka)

1) The Deceased (Si Mati)
2) The Heirs/Inheritors/Beneficiaries (Waris)
3) Estate/Asset of the deceased (Harta)

Harta Pusaka
- Semua harta yang ditinggalkan si mati, yang diperolehi melalui cara yang halal seperti perolehan
melalui jual beli, mendapat pusaka, hibah, hadiah, sedekah dan wasiat;
- Sewaan yang belum dijelaskan kepada si mati;
- Hutang kepada si mati, yang dijelaskan selepas kematian;
- Dividen/faedah (ASB) terbit daripada harta si mati;
- KWSP milik si mati;
- Barang yang terbit selepas mati seseorang daripada hasil usaha si mati

Bukan Harta Pusaka

- Harta yang telah diberi, dijual, diwakafkan dan dipegang amanah oleh si mati kepada seseorang
semasa hayatnya;
- Khairat kematian;
- Pemberian ziarah sewaktu kematian si mati;
- Faedah kematian/amaun tambahan KWSP;
- Imbuhan, pampasan dan sagu hati;
- Pencen;
- Bayaran2 di bawah SOCSO 1696 (PERKESO);
- Harta yang dipinjam
*Heirs & Apportionment according to ‘Faraid’
This can be quite confusing in ascertaining the remaining heirs and their portion of the deceased estate.
According to Islam, there are 3 types of eligible heirs namely: -
1) Ashab al-Furudh (Quranic Heirs)
2) Asabah (Residuary Heirs)
3) Zawl Arham (Distant Kindred)
#the next part will be in Bahasa to ease the understanding of the terms
#read more on ‘tebus bahagian si mati’
*refer to Probate Notes during Final Year Law School for the charts & apportionment

QURANIC HEIRS
1) Primary Heirs (Waris Fardhu)
- Husband [1/4]
- Wife [1/8]
- Father [1/6]
- Mother [1/6]
- Daughter [1:2 of the Son’s apportionment]
- Son (Asabah) [will be discussed below]

“In the appearance of all of them (excluding the H/W), the other remaining heirs will be excluded from
the distribution”.

2) Residuary Heirs (Waris Asobah)

a. Bi al-Nafsi
 All Male heirs except Husband & siblings from Mother’s side (Saudara SeIbu)
 Heir nearest to the deceased will be entitled
 Deceased’s Son will exclude the remaining Asobah

b. Bi al-Ghairi
c. Ma al-Ghairi
d.
What to Do?
1) List down all the deceased’s estate/property & separate between movable & immovable
property
o After the event of death, police report has been made & reported to the JPN, all
deceased deposit (money) in all banking account will be frozen (common practice is that
to withdraw all prior to issuance of death certificate: which the proceeds will be utilized
for the deceased funeral expenses)
o The proceeds from “Khairat Kematian”, is not part of “harta pusaka”, thus it is usually
given to the deceased family (or utilized for tahlil etc.)
2) Check thoroughly whether the deceased has left any will, hibah/gift etc. (testate) or not
(intestate), as the direction of distribution will be different.
3) Contact all family members (eligible heirs) & the next sensible move should no one has the basic
knowledge on deceased estate distribution, is to consult a lawyer (preferably Syarie’ one).
4) Amass (kumpul) all the deceased estate and assume the initial total of all the estate value as
different amount must be referred to different jurisdiction.
a. High Court
i. Total estate valued at >RM 2 million
ii. For acquiring Letter of Administration (intestate)/Grant of Probate (testate)
iii. Died testate (leaving will or any other instrument as such)
iv. Estates comprising/combining movable & immovable property valued more or
less than RM 2 million (testate only)
v. The application of the above letter/grant may amount to contentious/non-
contentious probate proceeding.
b. Syariah High Court
i. For obtaining Fara’id certificate
ii. When the deceased died intestate (leaving no will)
iii. For claim of Matrimonial Property (Harta Sepencarian)
c. Estate Distribution Division (JKPTG) – Pejabat Pusaka Kecil
i. Total estate valued at >RM 600k, but <RM 2 million
ii. Immovable property – usually pertains to land matter
iii. Also, may include movable property such as vehicles, cash, shares,
KWSP/Insurance proceeds (no beneficiary), ASB/ASN
iv. It is highly recommended to obtain Fara’id certificate from the Shariah High
Court to smooth the process as the application may take some time.
d. Amanah Raya Berhad (ARB)
i. Total estate valued at <RM 600k
ii. Movable property
iii. May also act as the trustee for underaged heirs (beneficiary)
5) After the above steps has been ascertained, then the path will diverge accordingly to each
respective jurisdiction.
Procedures for Small Estate Distribution (Pusaka Kecil)
This remains the main issue circulating among the societies on the how & what, concerning on the
procedures.
- A thing that needs to be note is that, for such claim must be involving immovable property
(land), and the value of the estate must be less than RM 2 million, but above RM 600k.
- The process can be done at any respective states JKPTG via the “Unit Pembahagian Pusaka
Kecil” according to the locality of the deceased property/estate.
- Application can be made via Borang A & also include: -
o Proof of death (Death Certificate);
o Documentation of the Immovable property: land title, official land search indicating the
deceased ownership on the said land, copy of assessment & quit rent;
o Documentation on the movable property: share certificate, bank account
statement/book, KWSP statements & etc.
- Should any of the heirs revoked/abstains their claim on the deceased‘s estate, they may fill up
the Borang DDA – a declaration by the eligible heirs abstaining their claim.
#all of these forms can be obtained from respective JKPTG or their websites.

CASE STUDY
“A husband & wife with joint ownership of property (house with no encumbrances/cleared loan). The
wife perishes intestate, leaving the husband, a son, a daughter and three siblings (2 m & 1 f) . The father
wanted to give the wife’s part to his children. Discuss the distribution of the deceased estate via Islamic
Law of Succession.”

Heirs & their apportionment: -

Husband (1/4)
Son (1/2)
Daughter (1/4)

Because of the existing of the heirs (being the children of the deceased), the siblings are exempted.