Interest money in the estate — what must the heirs do?

Return it to whoever it came from; failing that, give it away — and whether the heir may touch it at all turns on whether the money is identifiable. The Kuwaiti Encyclopaedia states it expressly of this school: where a man dies and his gain was foul, the better course for his heirs is to return the money to its owners; if they do not know its owners they give it away in charity, because the road for unlawful gain is charity once return to its owner is impossible. Al-Bazzaziyya adds the distinction that decides most real cases: if the heir knows the unlawful property by its very identity — this account, this credited sum — it is not lawful for him to take it; if he cannot identify it, he takes it as a matter of law, but in point of religion he gives it away with the intention of the people who have a claim to it. A Canadian bank statement identifies it.

Sources: al-Mawsu’a al-Fiqhiyya, “Kasb” sec. 17 — the heir’s position: what is inherited from a source unknown is “halalun bi-ijma‘i al-‘ulama’”; “wa-sarraha al-Hanafiyyatu” that where a man dies and his gain was foul the better course for his heirs is to return the money to its owners, and failing that to give it away; al-Bazzaziyya, that an heir who knows the unlawful property by its very identity may not take it, while if he does not he takes it as a matter of law but in point of religion gives it away intending the claimants; and “wa-dhahaba al-Shafi‘iyyatu” that one who inherits property knowing it contains something unlawful but doubting the amount takes out the unlawful amount by his best judgment (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Kasb” sec. 17, al-kasb al-khabith wa-masiruhu — unlawful gain defined as taking another’s property otherwise than as the law permits, or what the law forbids even where the owner consents; and the duty: “wa’l-wajibu fi’l-kasbi al-khabithi tafrighu al-dhimmati wa’l-takhallusu minhu bi-raddihi ila arbabihi in ‘ulimu, wa-illa ila al-fuqara’” (Ministry of Awqaf and Islamic Affairs, Kuwait) — the Hanafi school named in terms (“wa-sarraha al-Hanafiyya”) at Kasb sec. 17, with al-Bazzaziyya cited there for the identifiable/unidentifiable split.

Take out the unlawful amount — and where you are not sure how much it is, estimate it and take that out. The Encyclopaedia states of this school that one who inherits property, knows there is something unlawful in it, and is unsure of the quantity, extracts the unlawful amount by his own best judgment. On where it then goes, al-Nawawi endorses al-Ghazali’s rule and says the rest of the school’s own authorities said the same: to the owner if he can be identified, to the owner’s heir if he has died, and if the owner is unknown and will stay unknown, to the general good of the Muslims — bridges, roads, mosques — or else to the poor. He gives the reason plainly: it is not permitted to destroy the money or throw it in the sea, so nothing remains but to spend it on the common good. What the poor receive is lawful and wholesome to them, and a holder who is himself poor may take what he needs.

Sources: al-Mawsu’a al-Fiqhiyya, “Kasb” sec. 17 — the heir’s position: what is inherited from a source unknown is “halalun bi-ijma‘i al-‘ulama’”; “wa-sarraha al-Hanafiyyatu” that where a man dies and his gain was foul the better course for his heirs is to return the money to its owners, and failing that to give it away; al-Bazzaziyya, that an heir who knows the unlawful property by its very identity may not take it, while if he does not he takes it as a matter of law but in point of religion gives it away intending the claimants; and “wa-dhahaba al-Shafi‘iyyatu” that one who inherits property knowing it contains something unlawful but doubting the amount takes out the unlawful amount by his best judgment (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Kasb” sec. 17 continued — al-Nawawi reporting al-Ghazali: unlawful money goes to its owner if identified, to his heir if he has died, and if the owner cannot be found to the general interests of the Muslims, failing that to a poor person; al-Nawawi adds “wa-hadha alladhi qalahu al-Ghazali… dhakarahu al-akharuna min al-ashab” (the rest of our school’s companions said it too) and that al-Ghazali reports it also from Mu‘awiya and from Ahmad ibn Hanbal and al-Harith al-Muhasibi; a poor recipient takes it lawfully, and a poor holder may keep what he needs (Ministry of Awqaf and Islamic Affairs, Kuwait) — “wa-dhahaba al-Shafi‘iyya” at Kasb sec. 17; and al-Nawawi at the same section stating that this is what “the others of our companions” hold, i.e. the school’s own men.

Spend it on the common good — and how much of the fund you must avoid depends on how big the fund is. Ahmad is reported, in the same passage that carries al-Ghazali’s and al-Nawawi’s rule, among those who held that money whose owner cannot be found is to be turned to the general interests of the Muslims. On the commoner case, where lawful and unlawful money are mixed in one fund, the Encyclopaedia quotes him directly: if the fund is large he takes out the amount of the unlawful and deals freely with the rest; if it is small he avoids all of it — the reasoning being that with a small fund you cannot realistically keep clear of the unlawful part, whereas with a large one you can.

Sources: al-Mawsu’a al-Fiqhiyya, “Kasb” sec. 17 continued — al-Nawawi reporting al-Ghazali: unlawful money goes to its owner if identified, to his heir if he has died, and if the owner cannot be found to the general interests of the Muslims, failing that to a poor person; al-Nawawi adds “wa-hadha alladhi qalahu al-Ghazali… dhakarahu al-akharuna min al-ashab” (the rest of our school’s companions said it too) and that al-Ghazali reports it also from Mu‘awiya and from Ahmad ibn Hanbal and al-Harith al-Muhasibi; a poor recipient takes it lawfully, and a poor holder may keep what he needs (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “Mal” sec. 13, al-takhallus min al-mal al-haram — “idha kana al-malu alladhi fi yadi al-muslimi haraman fa-innahu la yajuzu lahu imsakuhu wa-yajibu ‘alayhi al-takhallusu minhu”; where lawful and unlawful are mixed and cannot be told apart, the majority require the holder to take out the amount of the unlawful and pay it to whoever is entitled, the rest remaining lawful in his hand; and “qala Ahmadu fi’l-mali al-mushtabahi halaluhu bi-haramihi: in kana al-malu kathiran akhraja minhu qadra al-harami wa-tasarrafa fi’l-baqi, wa-in kana al-malu qalilan ijtanabahu kullahu” (Ministry of Awqaf and Islamic Affairs, Kuwait) — sourced by the school’s eponym rather than the school label — “Ahmad ibn Hanbal” named at Kasb sec. 17 and “qala Ahmad” at Mal sec. 13. This is the same convention the register uses in wasi-appointment; we did not find a passage attributing the rule to “al-Hanabila” as such.

Inheriting it does not clean it. The Maliki position is put by Ibn Rushd al-Jadd in a single sentence that the Islamweb Fatwa Centre quotes under his school name when answering exactly our question — a parent who died leaving money in a bank: “As for inheritance, unlawful money does not become wholesome; this is the correct view, and it is what sound reasoning requires.” Death does not launder it and the heir does not receive it clean. The practical consequence in the same fatwa: the interest is not the heirs’ to divide, and it is not to be left with the bank either — the bank was only a paid intermediary and never the wronged party.

Source: Islamweb Fatwa Centre, fatwa 106658, “al-Mirath idha kana wadi‘atan fi bankin ribawi”, 30 Rabi‘ al-Awwal 1429 / 6 April 2008 — a mother dies leaving money in a bank. Held: “man waritha fawa’ida ribawiyyatan yajibu ‘alayhi al-takhallusu minha bi-sarfiha fi masalihi al-muslimina al-‘amma aw infaqiha ‘ala al-fuqara’i wa’l-masakin”; the increment on a deposit in an interest bank “la tatibu li-sahibi al-wadi‘ati wa-la li-warithihi ba‘da mawtih”; quoting Ibn Rushd al-Jadd al-Maliki — “wa-amma al-mirathu fa-la yatibu al-malu al-haramu, hadha huwa al-sahihu alladhi yujibuhu al-nazar” — and al-Nawawi and Ibn Taymiyya; the interest is not to be left with the bank, which was only a paid intermediary; a needy heir may take from it to the extent of his need (Islamweb Fatwa Centre (Qatar)) — Ibn Rushd al-Jadd cited under the express label “al-Maliki”. We did NOT find a Maliki cell in the Kuwaiti Encyclopaedia’s Kasb or Mal entries, which name only the Hanafis, the Shafi’is and Ahmad; this cell rests on the Islamweb locus alone.