Category: Inheritance
Fatwa#: 38914
Asked Country: Marshall Islands

Answered Date: Aug 09,2017

Title: Rights of heirs

Question

Herewith a few questions I need advise and Sariah guidance :  

Our father passed away and was a director / shareholder  in  companies and businesses (which are currently running concerns )with his two  other brothers and a deceased brothers children(which makes it four partners of 25% each )our fathers share is 25% in all the companies and businesses and farms

One of our uncles has accepted to be an executor

My questions are follows :

From death until the estate is wound up and ready for distribution .(will refer to this as the window period)

1 : What rights do the heirs have during the window period ?(do they have the same rights as the other partners)

2: Are the heirs entitled to profits / losses during the window period ?(like the other partners)

3:Are the heirs entitled to the privilege's and benefits of the companies and businesses during the window period .(the other partners do benefit and enjoy the privilege's)

4 :Do the heirs have the same rights as the remaining brothers and their children until the estate is wound up

5 :Do the heirs have the right to know and question  all businesses and companies information as and when required 

 Jazaakallah for your time in reading my mail and awaiting your advise and guidance 

 

Sulayman

Answer

In principle, when a partner in a joint enterprise passes away, his partnership terminates. His heirs will be entitled to a payment of their shares of the business. The heirs may also discuss the option of continuing with the partnership with the terms and conditions of the deceased or with different terms and conditions.

In brief, there will be a termination of the partnership due to death or a new partnership. In the case of termination, the heirs are entitled only to a pay out. They are not entitled to profits from the business. If the heirs decide on a new partnership, then the rules and regulations of the new partnership will apply.

The heirs are entitled to have full information of all the businesses and companies.

Terminating a partnership in a joint enterprise could face many intricacies. It is advisable to consult Ulama/Muftis and professional people to make appropriate decisions.[i]

 

And Allah Ta`ala Knows Best.

Hussein Muhammad.

Student Darul Iftaa

Tanzania

Checked and Approved by:

Mufti Ebrahim Desai.

 



وَتَبْطُلُ الشِّرْكَةُ بِمَوْتِ أَحَدِهِمَا

[i]تبيين الحقائق شرح كنز الدقائق  Vol 3 Pg 323. Maktaba Imdaadiyya.

 

وتبطل الشركةأي شركة العقد (بموت أحدهما) علم الآخر أو لا لأنه عزل حكمي

 

فلو كانوا ثلاثة فمات أحدهم حتى انفسخت في حقه لا تنفسخ في حق الباقيين

 

 

الدر المختار وحاشية ابن عابدين (رد المحتار)) Vol 4 ,Pg 327.

 

وأما بيان ما يبطل به عقد الشركة.

فما يبطل به نوعان: (أحدهما) : يعم الشركات كلها (والثاني) : يخص البعض دون البعض، أما الذي يعم الكل فأنواع: (منها) الفسخ من أحد الشريكين؛ لأنه عقد جائز غير لازم، فكان محتملا للفسخ، فإذا فسخه أحدهما عند وجود شرط الفسخ ينفسخ، (ومنها) موت أحدهما أيهما مات انفسخت الشركة

بدائع الصنائع في ترتيب الشرائع Vol 7, Pg 541. DKI.

 

 

وإذا مات أحد الشريكين أو ارتد ولحق بدار الحرب بطلت الشركة

العناية شرح الهداية Vol 3, Pg 430.

 

Mahmood ul Fataawa, Vol 2, Pg 349, Maktaba Anwar.

 

Fataawa Haqaaniyyya, Vol 6, Pg 324.

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