Can heirs be paid before probate?

Vests at death, and an early division stands. The Shafi’is hold that the property of the estate passes into the heirs’ ownership by the mere death of the deceased, whether or not the debt exhausts the estate. On that footing dividing the estate is nothing more than marking off and separating out what each heir already owns, so there is no ground on which to undo a division that turns out to have been made before a debt appeared — though if division is characterised as a sale there are two views. Their one restriction is on dealings: a sale or gift of an estate wholly swallowed by debt does not take effect, out of regard for the deceased’s right, whether or not the creditor consents, unless the dealing is itself to discharge the debt. On compelled division the school reports two positions from al-Shafi’i himself, and its later authorities rely on the one that allows a co-owner to be compelled where the shares are equal in value. A debt cannot be divided at all.

Sources: al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Tarikah", §13 continued -- "no disagreement among the jurists" that a debt-free estate passes from the moment of death, and the three positions where a debt attaches (vol. 11 p. 212) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Tarikah", §33 continued -- the Hanafi istihsan, the Majalla article, and the Shafi'i position that division is mere separation of shares (vol. 11 p. 224) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Tarikah", §§35-36 -- the Shafi'i position (and the second Hanafi report) that a dealing with a wholly debt-encumbered estate does not take effect, and the liquidation of an estate with minor heirs (vol. 11 p. 226) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Qisma", §15 continued -- the two Shafi'i positions on compelled equalisation, and that permitting it "is the Hanbali school, on which they do not differ" (vol. 33 p. 218) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Qisma", §40 -- what may and may not be divided: debts, and the requirement that the asset admit division without harm (vol. 33 p. 234) (Ministry of Awqaf and Islamic Affairs, Kuwait) — every point taken from a passage naming the Shafi’i position as such.

Vests at death on the better-known report, and an early division stands. The more widely reported of two narrations from Ahmad puts the Hanbalis with the Shafi’is: the estate passes at death with the debt attached to it. A completed division is not annulled when a debt of the deceased later comes to light, because the debt attached to the estate without the heirs’ agreement and so does not invalidate their dealing with it. On the other narration — the one that withholds ownership until the debt is paid — they join the Hanafis and Malikis in barring the heirs from dealing with the estate at all except where the deceased is discharged of the debt, the creditors consent, or the judge authorises it. Where an unborn heir survives, the Hanbalis reserve the share of two sons or two daughters, whichever is greater, on the reasoning that twins are common and more than two is rare. For a missing heir they alone fix a period: four years where the circumstances of the disappearance make death likely, after which his property is divided; where they do not, one report leaves it to the judge and another waits until he would be ninety. Compelled division is accepted across the board in the school, and unlike the Hanafis and Shafi’is they allow a debt itself to be divided.

Sources: al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Tarikah", §13 continued -- "no disagreement among the jurists" that a debt-free estate passes from the moment of death, and the three positions where a debt attaches (vol. 11 p. 212) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Tarikah", §33 end and §34 "Naqd qismat al-tarikah" -- the Hanbali position, and the five grounds on which a completed division is undone (vol. 11 p. 225) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Tarikah", §35 "al-Tasarruf fi'l-tarikah" -- when the heirs may deal with a debt-encumbered estate (vol. 11 p. 225) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Irth", §114 end and §115 -- Abu Yusuf's one share (the fatwa position), Ahmad's two, and the Samarqand fatwa on suspending the division only where the birth is near (vol. 3 p. 67) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Irth", §§119-120 -- the two Hanbali categories of missing person, the four-year rule, and the reservation of his share (vol. 3 p. 69) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Qisma", §15 continued -- the two Shafi'i positions on compelled equalisation, and that permitting it "is the Hanbali school, on which they do not differ" (vol. 33 p. 218) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Qisma", §40 -- what may and may not be divided: debts, and the requirement that the asset admit division without harm (vol. 33 p. 234) (Ministry of Awqaf and Islamic Affairs, Kuwait) — every point taken from a passage naming the Hanbali position as such.

Nothing vests until the debts are paid, and an early division is undone. The Malikis hold that the property of the estate stays in the ownership of the deceased after his death until the debt is discharged — whether or not the debt exhausts the estate — resting on the Qur’anic “after any bequest he may have made, or debt”. It follows that the heirs may not divide the estate while a debt sits on it, and a division they make is annulled to protect the creditors, because they have divided what they do not own. Where an unborn heir survives, the Maliki school reserves the share of four sons or four daughters, whichever is greater, with Abu Hanifa. For a missing heir they deliberately fix no period at all: “the heirs of a missing man do not divide his property until such time has passed over him as a man like him would not live to.” They also read compelled division more narrowly than the other schools — it requires not only that the assets be of one kind but that they be equal in value, equal in the co-owners’ wishes, and close together.

Sources: al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Tarikah", §13 continued -- "no disagreement among the jurists" that a debt-free estate passes from the moment of death, and the three positions where a debt attaches (vol. 11 p. 212) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Tarikah", §33 "Rabi'an: qismat al-tarikah bayn al-warathah" -- no disagreement that division follows payment of the attached rights; the Hanafi and Maliki rule voiding an early division (vol. 11 p. 224) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Tarikah", §35 "al-Tasarruf fi'l-tarikah" -- when the heirs may deal with a debt-encumbered estate (vol. 11 p. 225) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Irth", §114 -- how much is reserved for an unborn heir: Abu Hanifa and the Malikis (four), Muhammad (three) (vol. 3 p. 67) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Irth", §118 continued -- the Maliki refusal to fix a period and the Shafi'i rule that the judge exercises judgement (vol. 3 p. 68) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Qisma", §21 -- the Maliki limits on compelled division (vol. 33 p. 222) (Ministry of Awqaf and Islamic Affairs, Kuwait) — every point taken from a passage naming the Maliki position as such.

It depends on whether the debt swallows the estate. The Hanafis divide the case: if the debt exhausts the estate the property stays in the deceased’s ownership and does not pass to the heirs; if it does not, the preferred view is that it passes at death with the debt attached. Al-Sarakhsi gives the reason — God made the time of inheritance what comes after the debt is discharged, and a ruling does not run before its time. So they too bar a division while the debt sits on the estate and undo one that was made, although some Hanafis permit it by istihsan where the debt does not exhaust the estate, “since an estate is seldom free of some small debt”; and even on the strict view the heirs may take the estate for themselves and pay the debt and the bequest out of their own money, and a creditor must accept payment from them. The Ottoman Majalla codified the same rule. Where an unborn heir survives, Abu Hanifa reserves the share of four sons or four daughters, Muhammad three, and Abu Yusuf one — and it is Abu Yusuf’s that is the position given for fatwa, with the judge taking a guarantor from the heirs against a multiple birth. The Samarqand jurists added the rule our question really turns on: suspend the division if the birth is near, do not suspend it if it is far off, because waiting harms the remaining heirs — and they refused to fix that period, referring it to custom. For a missing heir the school reports fixed spans of 70, 90, 100, 110 and 120 years, and the position given for fatwa is that Abu Hanifa fixed nothing and left the period to the judge of each age.

Sources: al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Tarikah", §13 continued -- "no disagreement among the jurists" that a debt-free estate passes from the moment of death, and the three positions where a debt attaches (vol. 11 p. 212) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Tarikah” — the Hanafi reasoning, quoting al-Sarakhsi’s al-Mabsut 29/137: “al-daynu idha kana muhitan bi’l-tarikati yamna‘u milka al-warithi fi’l-tarika”, because God “ja‘ala awana al-mirathi ma ba‘da qada’i al-dayn”, so the deceased’s ownership survives in law (hukman) for as long as his need does; and Ibn Qadi Samawna, that the heirs may take the estate for themselves and pay the debt and the bequests out of their own money (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Tarikah", §33 "Rabi'an: qismat al-tarikah bayn al-warathah" -- no disagreement that division follows payment of the attached rights; the Hanafi and Maliki rule voiding an early division (vol. 11 p. 224) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Tarikah", §33 continued -- the Hanafi istihsan, the Majalla article, and the Shafi'i position that division is mere separation of shares (vol. 11 p. 224) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Irth", §114 -- how much is reserved for an unborn heir: Abu Hanifa and the Malikis (four), Muhammad (three) (vol. 3 p. 67) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Irth", §114 end and §115 -- Abu Yusuf's one share (the fatwa position), Ahmad's two, and the Samarqand fatwa on suspending the division only where the birth is near (vol. 3 p. 67) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Irth", §§116-118 "Mirath al-mafqud" -- the missing person is treated as alive as to his own property, and the Hanafi periods (vol. 3 p. 68) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Irth", §118 continued -- the Maliki refusal to fix a period and the Shafi'i rule that the judge exercises judgement (vol. 3 p. 68) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu'a al-Fiqhiyya al-Kuwaytiyya, entry "Qisma", §§12-13 continued -- the judge may imprison the co-owner who refuses division and set him a reasonable period, and the Hanafi rule that compelling the refuser is what is obligatory on the judge (vol. 33 p. 215) (Ministry of Awqaf and Islamic Affairs, Kuwait) — every point taken from a passage naming the Hanafi position as such.