Estates: Legislative History and Legal Development
An estate, or inheritance, is what a deceased person leaves behind of property, rights and debts. It is among the important legal subjects that legislation has ordered since antiquity, so as to distribute wealth and secure social justice. The ordering of estates has developed through history under religious, social and economic influences.
What an estate is
In language: an estate is everything a person leaves behind after death.
In law: an estate takes in all financial rights and all movable and immovable property, together with the debts owed to the deceased or by them.
The ordering of estates in the older systems
The ancient civilizations:
Babylonian law: the Code of Hammurabi (about 1750 BC) ordered inheritance plainly. The law gave weight to the family, wealth passing chiefly to male children, and the father held wide freedom to distribute his property during his life or by his will.
Roman law: the right of inheritance was at first confined to the lawful heirs within the family. Later the testators will appear, allowing wider freedom in distributing the estate, though the rights of children or of a wife could not be greatly overridden.
Jewish law: Jewish law ordered inheritance on a pattern close to the older codes, the firstborn son receiving a larger share — what is known as primogeniture.
Estates in Islam
The legislative foundation:
Islamic law is among the most notable systems to have ordered estates precisely. Its rules on estates are drawn from the Qur'an, from the Sunna, and from the consensus of the scholars.
The governing principles of inheritance in Islam:
- The shares are set out in detail: the Islamic legislation came in the verses of inheritance (Surat al-Nisa') to fix the shares of the heirs.
- Justice and equity: the estate is divided with regard to the common good of the family and of society.
- Islam forbade the disinheriting of lawful heirs, and set a limit against the misuse of bequests.
- The right of women to inherit: Islam gave women a fixed share in inheritance, a marked development by comparison with the systems that preceded it.
How estates are distributed in Islamic jurisprudence: the debts of the deceased are settled first, then bequests are carried out within the limit of one third, and then the estate is divided among the heirs according to the fixed lawful shares.
Estates in modern legislation
a. Arab and Islamic legislation:
— Saudi Arabia: the provisions of Islamic law are applied in matters of estates. Inheritance is distributed according to the lawful shares, bequests being carried out and debts settled first.
— Egypt: the Egyptian Law of Inheritance (Law No. 77 of 1943) orders estates according to Islamic law, with articles devoted to particular cases such as absentees and bequests.
— The United Arab Emirates: the Emirati Personal Status Law (Federal Law No. 28 of 2005) rests on Islamic law in matters of estates.
b. Western legislation:
The law of estates in Western states differs with the legal system. In most Western states:
- Individuals hold wide freedom to determine how their property is distributed after death, by will.
- The general law applies where the deceased has left no will (the civil code or the general law of inheritance).
- Estate taxation: in some Western systems, taxes are levied on estates above a certain value.
c. Estates in mixed jurisdictions:
In some states with mixed legal systems, such as India and Malaysia, the Islamic rules of inheritance apply to Muslims, while minorities are governed by their own laws.
- Recent tendencies in the ordering of estates
Technology in the administration of estates:
Electronic services have appeared for registering wills and identifying heirs.
The administration of a deceased person's assets is eased through digital systems.
The difficulties estates meet today
- Disputes between heirs: disagreement over the distribution of an estate often arises, particularly where there is no clear will.
- Assets across borders: where the deceased held assets in different states, legal complications may arise.
- The complexity of modern assets: digital currencies, for instance, which require new legal frameworks if their distribution is to be secured.
The law of estates is a vital part of any legal system, governing as it does the passage of wealth between generations in a way that secures social justice and economic stability. While the governing principles remain settled in most legal systems, recent developments seek to simplify the procedures and to answer the new difficulties.