Hajj and Will – FAQ
Every year Hujjaj undertaking the greatest journey of their lives ask us questions about contingency planning regarding their minor children and assets while they are away performing Hajj. This FAQ attempts to address some of these questions and concerns. For more information or confidential consultation, please contact our office.
- What happens to my minor children (younger than 18 years) if something happens to me during Hajj?
- Will a judge decide the guardian of my minor children even if I have specified a guardian in my Will?
- Will my children / heirs get my assets that I leave behind for them?
- I have a Will, so why wouldn’t my assets instantly go to the intended recipients?
- What if I am unable to come back to the U.S., who can take care of my financial affairs?
- What if I am incapacitated and cannot leave Saudi Arabia?
- I have added my minor children as beneficiaries to my bank accounts, life insurance, 401k plan , etc., will they receive the proceeds upon my death?
- How can I ensure that my assets are distributed to the loved ones instantly, my minor children are given to the guardian of my choice, and that someone is able to carry on my affairs if I am incapacitated?
- I keep on hearing about an estate plan, what is it?
- I’ll like to distribute my assets according to Islamic injunctions, what should I do?
- Ok, I understand that I need a estate plan, but how much is it going to cost me?
- How long does the process take?
Q1: What happens to my minor children (younger than 18 years) if something happens to me during Hajj?
If one parent is deceased, then the children will remain with the surviving parent. However, if both parents are deceased, social services will find a temporary placement for the children, which usually is a close relative or a friend willing to house the children. After that, a judge will assign a permanent guardian as part of a court case which may take 6 months or so.
Q2: Will a judge decide the guardian of my minor children even if I have specified a guardian in my Will?
Yes. If you have nominated a guardian in your Will, judge will honor that request unless there is a challenge to that nomination. If there is a challenge, or if you do not have a Will, or failed to mention a guardian in your Will, then the judge will choose a guardian who is “in the best interest” of the children. If you are nominating someone who does not reside in the U.S., there are other considerations you must take in to account as well.
Q3: Will my children / heirs get my assets that I leave behind for them?
Yes, though depending on your estate plan, it could take a year of court proceedings and cost 5-7 percent of your total asset value. Until the proceedings are over, your children may or may not have access to the money you leave behind for them.
Q4: I have a Will, so why wouldn’t my assets instantly go to the intended recipients?
This is a complicated issue, but a Will will not avoid the year-long costly probate process. If the children are minor, process could be even more complicated. However, a properly constructed plan can avoid most pitfalls and completely avoid court proceedings. Additionally, if you have specified Islamic distribution in your Will, that may complicate matters as well.
Q5: What if I am unable to come back to the U.S., who can take care of my financial affairs?
In order to continue any legal or financial transactions, a person has to carry them out himself either in person or remotely. No other person may carry out a transaction on behalf of anyone else, unless authorized by a validly executed Power of Attorney that explicitly grants the Attorney in Fact the power to carry out such a transaction. Such a Power of Attorney expires and is automatically revoked at the death of the principal. That is, you cannot use Power of Attorney on behalf of a person who has died.
Q6: What if I am incapacitated and cannot leave Saudi Arabia?
This is particularly a difficult situation if you do not have a Power of Attorney already in place. If one of the spouses still has capacity, he or she may be able to transact certain transactions. However, if neither of the spouses have capacity and there is no Power of Attorney in place, this will get very complicated. An incapacitated person cannot execute a Power of Attorney, and since he has not died yet, a Will is not typically probated. It will require complicated and expensive legal proceedings to unfreeze all the assets. Until then, recipients or dependents may not be able to access any of the funds.
Q7: I have added my minor children as beneficiaries to my bank accounts, life insurance, 401k plan , etc., will they receive the proceeds upon my death?
Generally, a minor may not hold assets in his own name. The proceeds from the various accounts will be distributed to minor’s guardian, appointed by the court. If one of the biological or adopted parent survives who lives and takes care of the minor, even they may need to get guardianship of the estate from the court, which may take 6 months or more. Until the appointment of the guardian, the funds will remain with the party controlling the account. [Back]
Q8: How can I ensure that my assets are distributed to the loved ones instantly, my minor children are given to the guardian of my choice, and that someone is able to carry on my affairs if I am incapacitated?
A properly crafted estate plan typically consisting of a trust, appropriate beneficiaries to different accounts, a Will, different Power of Attorneys, done by a competent attorney will resolve most of these issues and provide you the most efficient way to plan for any contingencies during your trip. [Back]
Q9: I keep on hearing about an estate plan, what is it?
Like Hajj, an estate plan is something you typically need to do once in your lifetime and it seldom needs to be modified thereafter, depending on your situation. And you don’t have to have an “estate” (i.e. huge assets) to do an estate plan. In legalese, an estate just refers to all your tangible and intangible property you leave behind. Of course, if you don’t have an estate plan, then a probate process has to be initiated, and the property gets distributed according to California laws or if you have a Will then according to your Will.
An estate plan consists of the following major items (plus few others):
1. Trust: Allows for your property to be distributed according to your instructions to your beneficiaries through a Trustee appointed by you. Completely avoids the probate process (that is, court /govt. does not get involved, plus it remains private, unlike the probate process which is public).
2. Will (a.k.a pour-over-will): Puts anything not in a trust at your death in the Trust mentioned in #1. This typically goes through a simplified probate process.
3. Power of attorney: Gives legal powers to a person of your choosing to transact actions on your behalf if you are incapacitated or unable to take care of your affairs.
4. Health care directive: Provides healthcare service providers instructions on your care (e.g. use of life support system) in case you are not able to communicate to them.
5. Other documents may include Deeds, certification of trust, assignments, community property agreements, power of appointment, etc. [Back]
Q10: I’ll like to distribute my assets according to Islamic injunctions, what should I do?
Since you can define how you want your property to be distributed upon your death in a Trust or a Will, you can specify the Islamic distribution through these instruments which may be honored by the State. If you don’t have an estate plan (Trust or a Will), then California law determines how your property will be distributed, which is done pursuant to a court process (i.e. probate). However, there are several serious issues that you must understand before specifying Islamic terms in your Trust or Will. [Back]
Q11: Ok, I understand that I need a estate plan, but how much is it going to cost me?
It depends on the size of your estate and/or complexity of distribution. A typical estate plan may cost around a couple of thousand dollars (though our firm provides this services to Hujjaj at a very very discounted price), which many times includes free minor modifications for one year. Again, this is something you’ll typically have to do once in your lifetime and maintain the plan through modifications that usually don’t cost that much. [Back]
Q12: How long does the process take?
Process to create an estate plan can be as short as few days to a few weeks – it depends how quickly you provide the necessary information to your attorney. We’ve turned around some estate plans within 3-4 days after our initial meeting with the client. [Back]