Making a Will Regarding the Pilgrimage
#73: If a person knows that their death is near, and if they have an outstanding obligatory pilgrimage and they can provide the required means, then they have to make sure that it will be performed on their behalf. They ought to write it in their will in the presence of witnesses.
If they do not have the required means but they believe someone would pay for their pilgrimage, they have to arrange that in their will.
When the person dies, the obligatory pilgrimage has to be undertaken by proxy paid for from their property, even if it is not referred to in their will. Similar conditions prevail, if only general instructions were given without mentioning whether the expenses should be covered from the bequeathable third of their estate. However, if they left the instructions that their pilgrimage by proxy should be paid from the one-third portion, and this third is sufficient, the costs have to be borne by this portion and they take priority over all other instructions of the will.
If the one-third is insufficient, the expenses have to be supplemented by the remaining property.
#74: If a person dies whose obligatory pilgrimage had been due but has not yet been performed and another person still keeps property entrusted to them by the deceased and fears that the heirs will not take charge of the deceased person's pilgrimage, they are allowed to or they rather have to dispose of the entrusted property to fund the pilgrimage for the deceased and carry it out themselves or assign another person to do so. Any remaining property is to be handed to the heirs after having paid all pilgrimage expenses. However, the correctness of this procedure is not free from doubt (ishkāl).
#75: Take the case of a deceased person who did not perform their obligatory pilgrimage and who had outstanding debts and payments of khums and/or zakāh that are due and whose estate is insufficient to meet all their liabilities. If the property for which khums and/or zakāh is due still exists, these outstanding debts have to be paid first. If the khums and/or zakāh debts are long standing and/or are due for a property that has already been spent or no longer exists, the funding of the pilgrimage takes precedence over these payments. However, it is obvious that debts owed to a third party have priority.
#76: If a person dies without having performed their obligatory pilgrimage, the heirs are not permitted to spend any of the inheritance without first deducting the costs for the pilgrimage, no matter whether these costs will consume the entire estate or only part of it. However, in the second case, there are no objections to distributing the inheritance once the funding of the pilgrimage has been assured.
#77: If a person dies without having performed the obligatory pilgrimage and their estate is insufficient to fund the journey of pilgrimage, the available assets have to be used to pay potential debts and dues of khums and zakāh. Thereafter, the heirs are entitled to receive their distributive share. The heirs are not obligated to supplement the lack of funds with a share of their personal property in order to pay the cost of the pilgrimage.
#78: If a person dies without having performed the obligatory pilgrimage, it is not necessary to base the calculation of the costs of their pilgrimage upon the country in which they died. It is sufficient to calculate the costs of the journey from the mīqāt (the place where the pilgrims enter into the state of ihrām) as its starting point. It is sufficient to appoint a representative who lives in the area of the mīqāt, near Mecca. However, if the deceased had a large fortune, it is ahwaṯ-ul-awlā to base the expenses upon the deceased's country. If the heirs resolve to do so, it is permitted.
However, the additional costs arising from starting the pilgrimage from the deceased's country ought to be born by the adult heirs.
#79: If a person dies who should have performed an obligatory pilgrimage but had not fulfilled it, it is an obligation to perform it on their behalf in the year of their death. If it is impossible to find a representative from a close-by mīqāt, someone from the country of the deceased has to be sent and all the expenses for this pilgrimage have to be paid from the entire estate. It is not permitted to delay the pilgrimage until the next year, even if it were known that it would then be possible to send a representative from the close-by mīqāt.
If the costs are higher when the calculation of the travel expenses is based on the deceased's home country instead of the nearby mīqāt, it is not allowed to pay the expenses from the portion of the young heirs.
#80: If a person who had not performed the pilgrimage, although they were obligated to do so, dies and no representative can be found other than someone who demands higher wages than usual and the deceased's estate is sufficient to meet these payments, it is an obligation to appoint the available representative. The difference is to be paid from the entire estate and, as a precaution (al-ahwaṯ), the heirs should not, in order to avoid the additional costs, postpone the pilgrimage until the following year. These extra expenses are to be borne by the account of the adult heirs.
#81: If some of the heirs say that the deceased still had an outstanding obligation to perform the pilgrimage but other heirs declare that this was not the case, then the former are not obligated to make an effort to perform the deceased's pilgrimage except to the extent of their portion of the inheritance. (If one heir e.g. inherits a quarter, they have to pay for a quarter of the Hajj expenses, Translator's note.) The heir is not obligated to pay more than this portion. If it is sufficiently augmented by additional donations, the heirs are obligated to appoint a representative to undertake the pilgrimage by proxy for the deceased.
#82: If a person dies without having fulfilled their obligatory pilgrimage and someone voluntarily performs their pilgrimage as a gift, in other words, at their own expense, it is not an obligation on the heirs to take charge of it. However, if a specific portion of the deceased's bequeathable third was disposed of by will for their pilgrimage, the money meant to fund the pilgrimage is not given to the heirs but is used instead for a good cause or given as a charitable donation in the name of the deceased, as they would have wanted.
#83: If a person dies without having fulfilled their obligatory pilgrimage but they directed in their will that a representative from their hometown should be appointed to perform it, it is an obligation to act on this instruction. The additional costs that derive from the representative starting from the deceased's hometown, rather than from the mīqāt, have to be paid from the bequeathable third of the entire estate. If the deceased made only general provisions for the pilgrimage in their will without giving specific instructions, it is sufficient to let it be performed by a representative from the nearest mīqāt. If it may be assumed that the deceased wished for the pilgrimage journey to start from their hometown, as evidenced by the fact e.g. that the sum that was fixed is consistent with the costs for a pilgrimage starting from their hometown, then this assumption must be acted upon.
#84: If a person provided by will that in case of their death the appointed representative for their pilgrimage should start the journey from the deceased's hometown but the executor or the heirs arrange for the mīqāt to be the starting point, the agreement is deemed invalid if the wages are paid from the deceased's estate. However, the pilgrimage for the deceased is deemed valid.
#85: If the deceased's will stipulates that the representative should start the pilgrimage journey from a certain place or country e.g. Najaf, it is an obligation to stick to this. The additional costs arising from the journey starting from a point other than the mīqāt have to be paid from the one-third of the entire estate that may be bequeathed.
#86: If the deceased ordained by will that a representative should be appointed to perform the obligatory pilgrimage on their behalf and at their expense, and if they determined the wages that ought to be paid, these instructions have to be followed. The payment has to come from the entire estate, as long as it does not exceed the usual costs. But if it does, the difference has to be paid from the bequeathable third
#87: If the deceased person made provisions in their will to fund their pilgrimage with a particular piece of property whose khums or zakāh is still due, then these payments must first be deducted from that property. The balance should be used for the expenses of the pilgrimage. If it is not sufficient, the difference has to be paid from the entire estate – if it is the case of an obligatory pilgrimage. Otherwise, the balance will be donated to a good cause, according to the deceased's wishes, provided that this kind of will allows for that, or it will be remitted to the legal heirs.
#88: If it was still the deceased's duty to perform the obligatory pilgrimage and the executor of the will or an heir knows about this fact but they neglect to arrange for it, and if the money meant for the pilgrimage gets lost, it is they who are liable and who are obligated to pay the costs of the pilgrimage from their own money.
#89: If those left behind know that the pilgrimage was an obligation for the deceased but they are not sure whether or not the deceased had had it performed, it is their duty to have it organized, and the expenses have to be paid from the entire estate.
#90: The deceased's obligation to perform the pilgrimage is not fulfilled by the mere engagement of a representative for this task. If it becomes known that the representative did not perform the pilgrimage, for whatever reason, it is an obligation to appoint another representative, and the costs are to be paid from the entire estate. If the originally appointed representative was paid from the estate, it is an obligation to get the money back from them, if possible.
#91: If there is the choice between several representatives, the one who is the most worthy to represent the deceased has to be appointed, even if the wages of another one are lower.
This applies even if the costs are not within the limits of the one-third and even though there are minors among the heirs or someone who does not agree with it. However, it would be a problem if these expenses affect other financial obligations such as debts or zakāh or other testamentary provisions.
#92: Whether a representative is appointed to start the pilgrimage from the town of the deceased or from the mīqāt is determined by the muğtahid whom the heirs follow or by their own iğtihād and not by the marğa´ whom the deceased followed. If the deceased believed that it is an obligation to assign an authorized representative to start the pilgrimage from the principal's town but the heirs are of the opinion that it is permitted to send a representative from the mīqāt, the heirs are not obligated to appoint someone from the town of the deceased.
#93: If the pilgrimage was an obligation for a deceased person who had no estate to leave behind, the legal heirs are not obligated to fund the pilgrimage from their own money, although it is recommended because of their family ties.
#94: If the will of a deceased stipulated that a pilgrimage should be performed on their account, and it turns out to be Hağğatu-l-Islām, the costs have to be paid from the entire estate unless the deceased expressly stated that the expenses are to be settled from the one-third. If it becomes known that it is a pilgrimage other than Hağğatu-l-Islām or there are doubts, the costs are met with funds from the one-third.
#95: If the deceased made provisions in their will to fund a pilgrimage to be performed by a particular representative whom they expressly appointed, it is an obligation to follow these instructions. If the authorized person will not accept the task unless they are paid more than usual, the extra costs have to be covered from the one-third portion of the estate if it is Hağğatu-l-Islām. In case the amount of money is insufficient, another person may be chosen.
#96: If the deceased stated in their will that a pilgrimage should be performed on their account and they directed that a specific amount was to be paid to the representative, but this amount is not acceptable to anybody because it is too low, the balance has to be paid from the entire estate if it is Hağğatu-l-Islām. If it is another kind of pilgrimage, the determined sum has to be donated to a good cause, according to the deceased's wishes, provided that the kind of will allows for it. Otherwise, it will be restored to the entire estate.
#97: If a person sells their house for a certain sum on the condition that the buyer does not pay the amount of the sale directly but that instead, after the seller's death, they will spend it on a pilgrimage, then the stipulated sum is part of the seller's estate when they die.
If that pilgrimage is Hağğatu-l-Islām, the arrangement is effective and it is the buyer's obligation to pay the amount for the remuneration of the pilgrimage as long as it does not exceed the usual wages. But if it does, the balance has to be paid from the one-third portion of the estate.
If a pilgrimage other than Hağğatu-l-Islām was meant, the condition is still effective in terms of arranging the pilgrimage but the total remuneration is paid from the one-third portion. If the one-third does not cover the wages, the condition of the deceased can no longer be met.
#98: If a person gives e.g. their house to another person as a gift on the condition that the recipient performs the pilgrimage on the donor's behalf after their death, this agreement is valid and effective. The house no longer belongs to the donor and is not part of the estate when they die and therefore is not subject to the rules of inheritance. Even if the pilgrimage in question is not an obligatory one.
The same applies for a transfer where the owner of the house passes the ownership to another person on the condition that the latter sells the house after the former's death and uses the proceeds to arrange the pilgrimage for the deceased. In this case the agreement is valid and effective, even though it may be a voluntary pilgrimage, and the heirs are not entitled to inherit the house.
If the condition is not fulfilled (meaning the recipient of the house fails to arrange the pilgrimage), the decision of whether the agreement is declared invalid, that is, the donation is to be withdrawn from the recipient, is taken by the executor of the will or the marğa´ of the deceased and not by the heirs. If either of them declares the agreement void, the property passes into the estate of the deceased.
#99: If an executor dies and nobody knows whether or not they had charged a representative with the deceased's pilgrimage before they died, it is an obligation to appoint someone. If it is an obligatory pilgrimage, the costs are paid from the entire estate of the deceased, and if it is another kind of pilgrimage (and it is so instructed in the deceased's will), the costs are met from the one-third portion.
#100: If the executor loses the funds for the pilgrimage without being guilty of neglect, they are not liable. If this happens, the representative performing the pilgrimage on the deceased's behalf is paid from the deceased's estate if it is Hağğatu-l-Islām. If not, the costs are covered from the one-third portion. If the estate has already been apportioned among the heirs, they have to meet the remuneration of the representative according to the relative size of their portion.
The same rule applies if the representative dies before having performed the pilgrimage and leaves nothing behind or if it is not possible to get the remuneration back from their property.
#101: If the executor held the funds that are meant to be spent on the pilgrimage and loses them and it cannot be proven whether or not the money was lost due to neglect of the executor, it is not permitted to demand damages, that is, they are not liable for the loss.
#102: If the deceased instructed in their will that a specific sum be spent on a pilgrimage other than the obligatory pilgrimage and it is suspected that the amount exceeds the bequeathable one-third, it is not permitted to supplement the amount from the portion of the heirs without their consent.