FAMILY WAQF, LIVING TRUSTS & LAST WILLS

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1 FAMILY WAQF, LIVING TRUSTS & LAST WILLS MONZER KAHF (AUGUST 2002)

2 FAMILY WAQF, LIVING TRUSTS & LAST WILLS AWQAF EXISTED BEFORE ISLAM: MAINLY FOR RELIGIOUS PURPOSES, AND A FEW CHARITABLE, RARELY. THEY DID NOT KNOW ANY FAMILY TRUSTS.

3 MEANING AND KINDS OF AWQAF WAQF (P, AWQAF): is taking a property out of personal ownership and holding it for a good cause (righteousness = Birr). It also means properties made into Waqf THREE KINDS: RELIGIOUS CHARITABLE FAMILY OR POSTERITY

4 THE ISLAMIC AWQAF CREATED AT NO PRECEDING EXAMPLE: SAYINGS OF PROPHET WIDE SCOPE: CHARITY, RELIGIOUS ENVIRONMENTAL, PUBLIC UTILITY, ETC. INVENTED THE FAMILY WAQF

5 CHARACTERISTICS OF AWQAF Righteousness (Birr) Perpetuation/temporarity Protection

6 CHARACTERISTICS OF THE INHERITANCE SYSTEM IN ISLAM REFLECTS THE ISLAMIC CONCEPT OF OWNERSHIP DETAILED MANDATORY (OBLIGATORY)

7 CHARACTERISTICS OF THE INHERITANCE SYSTEM IN ISLAM-(CONTINUE) AIMS AT REDISTRIBUTION INTEGRATED WITH OTHER ASPECTS OF ISLAMIC SYSTEM, ESPECIALLY: MARRIAGE FAMILY FINANCIAL RESPONSIBILITY

8 WASSIYYAH - LAST WILL SHARI AH MEANING AND SCOPE A CHARITY FROM GOD ACT OF RIGHTEOUSNESS TO GAIN MORE REWARD PARTIAL: ONE THIRD ONLY RESTRICTED: NON-HEIRS

9 WASSIYYAH - LAST WILL LEGAL MEANING DISTRIBUTION AT WILL - PERSONAL OBJECTIVES - PERPERTUATION OF WEALTH

10 WHY DO MUSLIMS IN NORTH AMERICA NEED WASSIYYAH - LAST WILL? IT IS FORBIDDEN TO VIOLATE THE ISLAMIC INHERITANCE LAW. THE LAW OF THE LAND (STATE LAW) PERMITS IT

11 SHORTCOMING OF WASSIYYAH - LAST WILL IT NEEDS PROBATE COURT IT CAN BE CHALLENGED

12 SORRY! LIVING IN AMERICA, YOU HAVE TO PLAN FOR DYING IF YOU THINK YOU ARE GOING TO DIE? THEN: YOU HAVE THREE (3) OPTIONS....

13 1) DIE: NO WILL, NO TRUST ESTATE WILL BE DISTRIBUTED ACCORDING TO STATE LAW ISLAMIC INHERITANCE SYSTEM VIOLATED LOSS OF CHARITABLE OPPRTUNITY

14 1) DIE: NO WILL NO TRUST (CONTINUE) FEDERAL ESTATE TAXES PROBATE COURT PROCEDURE: TIME CONSUMING COST: FEES AND LAWYERS LOSS OF PRIVACY VULNERABILITY TO CLAIMS

15 2) DIE: WITH A LAST WILL, NO TRUST ESTATE WILL BE DISTRIBUTED ACCORDING TO ISLAMIC LAW OPPRTUNITY FOR CHARITABLE

16 2) DIE: WITH A LAST WILL, NO TRUST (CONTONUE) WILL CAN BE CHALLENGED FEDERAL ESTATE TAXES PROBATE COURT PROCEDURE: TIME CONSUMING COST: FEES AND LAWYERS LOSS OF PRIVACY VULNERABILITY TO CLAIMS

17 3) DIE: WITH A LIVING TRUST ESTATE WILL BE DISTRIBUTED ACCORDING TO ISLAMIC LAW OPPRTUNITY FOR CHARITABLE DELAY OF FED. ESTATE TAXES

18 3) DIE: WITH A LIVING TRUST (CONTINUE) IMMEDIATE EXECUTION BY TRUSTEE NO PROBATE COURT: NO TIME NO COST: FEES AND LAWYERS NO LOSS OF PRIVACY NO EXPOSURE TO CLAIMS

19 ADDITIONAL ADVANTAGES OF WILL/ LIVING TRUST ISLAMIC FUNERAL RITES SPECIAL CASES: e.g., guardianship of minors, grand children, handicapped heirs, etc.

20 WHAT IS A LIVING TRUST? A LEGAL ENTITY REVOCABLE KEEP CONTROL POUR OVER A/B TRUSTS

21 WHAT IS A LIVING TRUST? FOUR COMPONENTS: *FOUNDER, *BENEFICIARY, *TRUSTEE, and *TRUST S PROPERTIES

22 DOCUMENTS OF A LIVING TRUST REVOCABLE LIVING TRUST OF HUSBAND AND WIFE LAST WILL OF WIFE & LAST WILL OF HUSBAND (POUR 0VER CLAUSE) LIVING WILL OF WIFE & LIVING WILL OF HUSBAND POWER OF ATTORNEY OF WIFE & POWER OF ATTORNEY OF HUSBAND FUNDING DOCUMENTS TO TRANSFER PROPERTIES TO TRUST S NAME: E. G., WARRANTY DEED

23 A LIVING TRUST CAN BE FORMULATED AS AN ISLAMIC FAMILY WAQF

24 SAMPLE DOCUMENTS OF LAST WILL LIVING TRUST

25 COMMON MISTAKES IN WILLS AND TRUSTS * NAMING HEIRS & SHARES, * LIMITING AUTHORITY OF HEIRS, * GIVING SOME HEIRS MORE THAN THEIR SHARI AH GIVEN SHARES (HANDICAPED),

26 COMMON MISTAKES IN WILLS AND TRUSTS (CONTINUE) * LEAVING BROAD AUTHORITY TO THE JUDGE: ACCORDING TO ISLAMIC LAW, * GIVING MORE THAN 1/3 TO NON- HEIRS,

27 COMMON MISTAKES IN WILLS AND TRUSTS (CONTINUE) * BEQUEATHING TO NON-MUSLIM RELATIVES OUTSIDE THE 1/3, * FAILURE TO FUND A LIVING TRUST, * NON-MUSLIM GUARDIAN,

28 COMMON MISTAKES IN WILLS AND TRUSTS (CONTINUE) * NEGLECTING A FETUS, * A/B TRUST WITHOUT CONSENT OF OTHER HEIRS, * NEGLECTING SHARE OF PARENTS, ETC.