Subject : The Creditor has the Option to Recover the Debt from the Guarantor or the Heirs
Fatwa Number : 3862
Date : 28-03-2024
Classified :
Fatwa Type : Search Fatawaa

Question :

My father borrowed a sum of money from my mother, and I told her: If my father does not repay you, I will pay on his behalf. After years, my father passed away, and now my mother demands repayment of the amount. Should I pay off the debt on behalf of my father, or are the heirs responsible for repaying it, knowing that the estate has been divided among all the heirs?

The Answer :

All perfect praise be to Allah the Lord of the Worlds. May His peace and blessings be upon our Prophet Mohammad and upon all his family and companions.

When a person dies and they owe debts to others, such as loans, those debts should be settled from their estate if they have wealth. The Prophet Mohammad (peace be upon him) said: "A believer soul remains suspended according to his debt until it is settled or paid off on his behalf." [Related and graded by At-Tirmithi as a sound one]. 

Paying off debts is among the rights related to the estate and takes precedence over inheritance. If a person passes away leaving behind wealth and debts, the debts should be settled first and whatever remains afterward belongs to the heirs. In this regard, Allah, in explaining the entitlement to inheritance for the heirs, Says (What means): "After any bequest he [the deceased] may have made or any debt." [An-Nisa`/11]. Therefore, it is not permissible for the heirs to take anything from the estate before settling the debts and implementing any bequests for one-third of what remains after the debts, if the deceased had made a will. 

Sheikh Al-Islam Imam Al-Nawawi, (may Allah have mercy on him), said: "The distribution of the deceased estate begins with covering the expenses related to their preparation and burial, then their debts are settled, followed by executing any bequests from one-third of what remains, and finally, the remainder is divided among the heirs." [Minhaj Al-Talibin, pp.180].

In case after the distribution of the inheritance, it was found out that there is a debt owed by the deceased, then it should be deducted from the shares of the heirs on equal footing. This ensures that at settling father's debt, is to be deducted among the heirs so none will bear settling it alone.

Since you have guaranteed your father's debt, your mother has the right to demand repayment from you or from the other heirs. If you pay off your father's debt, you have the right to seek reimbursement from all the heirs according to their shares. As Imam Ash-Shirbini, a Shafi scholar, mentioned: "The rightful claimant, even if they are an heir, can demand payment from whoever they wish among the guarantors, even if they are donors. The guarantor is obligated to pay because of the hadith: (The guarantor is liable).The reason for the guarantor obligation is that the debt is still due." [Al-Ikna` fi Alfaz Abi Shoja`, Vol.2, P.314]. 

It is the right of the mother to seek repayment of the debt from the guarantor or from the heirs. If she seeks repayment from the guarantor, then the guarantor has the right to seek reimbursement from the estate for the amount paid. Since the estate has already been distributed, the guarantor can seek reimbursement from all the heirs collectively. Each heir, including the wife, is responsible for paying their share of the debt from their portion of the estate. Therefore, the wife should pay one-eighth of the debt from her portion of the estate. And Allah The Almighty Knows Best.




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