Settling Debts Takes Precedence over Bequests

Question: I had a sister who was married and had two children. After she contracted a severe illness, her husband divorced her, and she died in the last month of her waiting period. She left behind many debts to the doctors who treated her and to others, and her only asset is a plot of land whose value covers only about two-thirds of what she owes. Before her death she instructed that: (1) Ḥajj be performed on her behalf; (2) prayers be performed on her behalf for three years; (3) fasting be observed on her behalf for three months; and (4) an animal be slaughtered for her after her death and a condolence banquet be held. She is survived by four full brothers and two sisters. What is the ruling, first, regarding the repayment of her debts—who is responsible for settling them? What is the ruling on her bequests, and which of them are we required to carry out? Please advise us, and may Allah reward you with goodness.

Answer: With respect to the debts she owes, they must be paid from her estate. Established debts are to be settled out of her estate, and no bequest may be executed until after the debts have been cleared, because paying off debt takes priority over executing a bequest.

As for the instructions she left—among them holding a condolence gathering and slaughtering an animal—these are not permissible to fulfil, even if she had left sufficient wealth, because such practices are religious innovations (bid‘ah) and therefore prohibited. The deceased’s property passes to her heirs, and in the case of outstanding debts it passes first to the creditors; whatever remains goes to the heirs. The Lawgiver allows a bequest only up to one-third of the estate and only for matters sanctioned by the Sharīʿah.

Therefore, a bequest that calls for a funeral banquet or any similar innovation may not be carried out; such a bequest is invalid.