After the provision of burial expenses, the mayyit’s creditors have a prior right on the assets in his estate.
The Kinds of Qardh
- Such debt which is confirmed by a statement of a man, made before his maradhul maut (the last illness in which he died), or by the testimony of witnesses, or which is common knowledge.
- Such a debt which is confirmed by only a statement made by a man during his maradhul maut. There are neither witnesses nor is the debt common knowledge.
Payment of the Debt
a. If the debt is only of the first kind, it will be simply paid from the mayyit’s estate.
b. If the debt is only of the first kind and there is only one creditor, but the estates assets are insufficient to pay the debt, after deduction of burial expenses, the balance of the estate will be given to the creditor. He may either waive the balance of the unpaid debt or he may retain his claim for the hereafter. Payment of the debt is not incumbent on the heirs. Should they willingly pay the debt, it will be an act of merit.
c. If the debt is only of one kind and there are several creditors, but the estate’s assets are insufficient to satisfy the full amount of the debts, then the assets will be distributed among the creditors in proportion to their claims.
Example: The mayyit has four creditors, A, B, C, and D. The amount owing A is R6,000; B R3,000; C R2,000 and D R1,000. The value of the estate is R6,000 which will be distributed among the creditors as follows:
A will receive R3,000 because his claim is 50% of the total debt of R12,000.
B will receive R1,500 because his claim is 25% of the total debt of R12,000.
C will receive R1,000 because his claim is 16.66% of the total debt of R12,000.
D will receive R500 because his claim is 8.33% of the total debt of R12,000.
d. If the qardh (debt) is of both kinds (the first and second kind mentioned above) and the assets of the estate are insufficient to satisfy all the debts then the creditors of the first kind will firstly be paid. After this payment if there are still assets left, the creditors of the second kind will be paid proportionately.
e. If the assets of the estate are not sufficient for even the first kind of debt, all the assets will be divided among the creditors of the first kind proportionately. The creditors of the second kind will not receive anything in this case. These creditors may either forgive the mayyit and acquire reward (thawaab) or postpone their claims for the aakhirah. Payment cannot be demanded from the heirs. It is, however, meritorious for the heirs to liberate the mayyit from the burden of the debt. Rasulullah (sallallaahu `alayhi wasallam) said:
“The Shaheed (martyr) will be forgiven all his sins, but debt.”
f. The mahr of the wife is exactly like the debt owing to others. If the necessary conditions of the first kind of debt apply, it (the mahr) will be classified as qardh of the first category, otherwise of the second kind, i.e. the excess, more than the Mahr-e-Mithl will be a debt of the second class. (Mahr-e-Mithl is the stipulated or customary Mahr amount of the woman’s family/tribe).
Example: During his maradhul maut, the husband declared that he is indebted to his wife for the amount of R5,000 being her Mahr. If there is no sound evidence (witnesses, common knowledge) to confirm this declaration, only the Mahr-e-Mithl amount will be a debt of the first kind. If, for example, the Mahr-e-Mithl is R1,000, then R1,000 will be debt of the first kind and R4,000 will be assigned to the second category of debt.
The Third Category of Debt
The third kind of qardh is a debt which is owed to Allah Ta’ala. Such debts are:
- Outstanding Zakaat
- Outstanding Fitrah
- Unfulfilled Qurbaani.
- Fidyah for Salaat and Saum which could not be executed due to extreme old-age or illness.
Payment of the debts of this category is dependent on the wasiyyat (directive/bequest) of the mayyit. If the man had directed payment of these debts, it will be classified as wasiyyat. After payment of burial expenses and satisfying creditors, the wasiyyat will be discharged from one third the value of the remaining estate.
If a third of the remaining estate is insufficient to pay these debts, it is not incumbent on the heirs to pay from their shares. They are, however, permitted to pay the full debt from their shares or from any of their own wealth. They may not utilize any of the funds of minor heirs even if the minors consent. The consent of minors is not valid.