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Fatwa CenterDividing wealth among heirs during lifetime
Question
Assalaamu alaykum Shaykh. My grandfather has distributed his properties to his descendants while he is still alive, and he is still alive at present, praise be to Allaah. Both my mom and my dad are still alive, I have only one sister from both my mom and my dad. However, my dad and mom have been separated since about four years (but they are not legally divorced), my dad is currently married to another women and has two boys from her. My father and grandfather had many disagreements in the past due to my dad's lack of responsibility, and my grandfather paid a lot of money towards my dad's debts. Last year, while my grandfather was distributing his wealth among the family, he gave my two brothers some portion of his properties with my father being responsible for it (because my brothers are still too young), he did not give my dad anything as he already gave him money for his debts. As for myself, my grandfather gave me our house (which my mom is currently living in), and he also gave me a peace of land, he wanted both properties registered in my name (he did not register anything in my sister's and mom's name). Nevertheless, he mentioned that he trusts that I would be fair towards my mom and sister. Can you please tell me your thoughts about how to distribute the shares of the house and the land among myself, my sister, and my mom according to the sharia. May Allaah reward you.
Answer
All perfect praise be to Allaah, The Lord of the worlds. I testify that there is none worthy of worship except Allaah and that Muhammad, sallallaahu ʻalayhi wa sallam, is His slave and Messenger.
When the person divides his wealth before his death, it is not considered a division of the estate according to the sharee'ah; rather, it is considered a gift (Hibah) provided that all the conditions of the validity of a gift set by the sharee'ah are met. Al-Haytami 
wrote:
“If the father divided his wealth among his children during his lifetime by granting each of them a share as a gift and all the conditions of the validity of the gift set by the sharee'ah are met, and each of them took possession of his share and his siblings do not share it with him, then this is a permissible division. However, if he divided the estate among them without them taking actual possession of their shares (allowing them to sell them or lease them out if they wish), then this division is invalid, and when the father passes away, the estate should be divided among the children according to the sharee'ah; the male gets double the share of the female...” [Briefly excerpted]
If the division was done as a gift during the lifetime of the person, then there is no need to divide it according to the sharee'ah; rather, it is divided according to the wish of the gift-giver. If your grandfather gave the house and the land to you alone, then they are yours alone. If he included your mother and sister in the gift, then each gets a share according to the way your grandfather wishes to divide it among you.
Scholars held different views regarding the ruling of giving equal gifts to one's children; some scholars held that it is not obligatory on the father to treat his children equally in terms of gift giving and that it is only recommended. The Hanbalis, on the other hand, maintained that it is obligatory because of the hadeeth that reads, “Fear Allaah and observe justice among your children.” They then differed regarding grandchildren on whether the ruling regarding children applies to them as well or not.
However, it should be noted that dividing one's estate during his lifetime as a gift requires certain conditions to be met for the gift to be valid. One of the most important of these conditions is that the beneficiary of the gift must take full possession and enjoy full ownership and complete authority over the gift, being able to freely dispose of it. If the gift-giver passes away before the beneficiary of the gift takes it into his full possession, then the gift is invalid and it becomes part of the deceased's estate that is to be divided among the heirs as per the sharee'ah. Ibn Qudaamah wrote, “If the gift-giver or the beneficiary of the gift dies before the latter takes the gift into his possession, then the gift becomes invalid.” [Al-Mughni]
It should be noted as well that taking an immovable property into one's possession is established by granting him full access and permission to it, and not merely by registering it under the name of the beneficiary of the gift. AL-Iqnaa' (a Shafi'i book) reads, “Taking an immovable property into possession such as land, trees and the like takes place by giving full access to the buyer and handing over the keys of the property to him.”
Allaah knows best.
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