Some heirs wish to sell inherited property while others do not
29-12-2012 | IslamWeb
Question:
Assalaamu ‘Alaykum; Please calculate the inheritance according to the following information -Does the deceased have male relatives who are entitled to inherit: (A son) Number 6 (A half brother (from his father)) Number 1 -Does the deceased have female relatives who are entitled to inherit : (A daughter) Number 4 - Information about the deceased’s debts : (Debts to people) - Additional information : Father died and mother died. father died before mother. he left 4 properties which is not benefiting his children. 6 children want all properties to be sold and claim their heritence. 4 do not want this. what is the solution. I believe even if one of the children claim his or her heritence the others calculate the 4 properties and pay the one who claims. if they cannot afford then the properties have to be sold. In our case the 4 cannot raise the total shares of the 6 claimants. Please advise. Jazakum Allah kheir
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 ‘alayhi wa sallam, is His Slave and Messenger.
Before dividing the inheritance, it is an obligation to pay back the debt that the deceased owes to people from his inheritance because the debt takes precedence over the right of the heirs in the inheritance. After paying back the debt, the remainder of the inheritance should be divided according to the Sharee’ah.
If the deceased [your father] did not leave any other heirs except his wife, six sons and four daughters, and did not leave any other heir, like a father, a mother, a grandfather or grandmother, then his wife gets one-eighth of the inheritance as her legal share due to the existence of the children of the deceased; Allaah Says (what means): {But if you leave a child, then for them [i.e. the wives] is an eighth of what you leave, after any bequest you [may have] made or debt.} [Quran 4:12]
The remainder should be divided amongst the sons and the daughters by Ta’seeb (by virtue of having a paternal relation with the deceased and not having an allotted share, so they get what is left after the allotted shares have been distributed); the male twice the share of the female as Allaah Says (what means): {Allaah instructs you concerning your children [i.e. their portions of inheritance]: for the male, what is equal to the share of two females.}[Quran 4:11]
Therefore, the inheritance should be divided into 128 shares, the wife gets one-eighth, which is 16 shares, each son gets 14 shares and each daughter gets 7 shares.
The deceased's half brother does not get anything from the inheritance because he is prevented by the existence of the sons. Ibn Al-Munthir 
said in Al-Ijmaa': “The scholars agreed in a consensus that the full-brothers and full-sisters and the half-brothers and half-sisters from the father’s side do not inherit if there is a son or a grandson or even a great grandson.”
On the other hand, the share of the wife should be divided amongst her heirs, and if she did not leave any heir except her six sons and four daughters, then her share should be divided into 16 shares, each son gets 2 shares and each daughter gets 1 share.
As regards the properties (estate) and the fact that some heirs are willing to sell them, then these properties are one of the two following cases:
1- That it is practically possible to divide the properties between the heirs in a way that each heir takes his legitimate share without causing any harm to other heirs. In this case, the properties should be divided amongst the heirs and then if any heir wants to sell his share of it, he may do so.
2- That it is not possible to divide the properties between the heirs according to the their legitimate shares, or that this is possible but while causing some harm to others, like if the value of their shares decrease by the division of the properties, then in this case, the properties should not be divided except with the consent of all the heirs. In case they do not all agree, and one of the heirs asks to sell the estate, then he has the right to do so and it becomes an obligation to sell the estate and then its price will be divided among all the heirs. If the other heirs refuse to sell, then the Muslim ruler (or whoever acts on his behalf) should oblige them to do so. Shaykh Ibn Taymiyyah said: “Something whose material cannot be divided and one of the heirs asks to sell it and divide its price, then it should be sold and its price should be divided (among the heirs).”
Also, Ar-Rawdh Al-Murbi’ (a Hanbali book) reads: “If a partner in something whose material cannot be divided asks his partner to sell it, then the latter would be obliged to sell it, and if he refuses, then the Muslim ruler should sell it for them and its price is divided amongst them according to their legitimate shares…and the harm that prevents from the obligatory division (of the material) is that its value decreases by dividing it [so it is better to sell it and divide its price].”
Allaah Knows best.