Estate Planning for Bahá’í Clients[i]
The Bahá’í Faith.
The Bahá’í Faith is a monotheistic religion founded during the mid-19th century in
While the Bahá’í Faith has its historical roots in Shi’a Islam (as Christianity has its historical roots in Judaism, and Buddhism has its historical roots in Hinduism), it is an independent faith with its own distinct history, philosophy and holy writings. To understand how estate planning and drafting of wills and other documents should be tailored to reflect the needs of a Bahá’í client, some background will prove helpful.
Historical Overview of the Bahá’í Faith and its Implications to Estate Planning.
A quick historical overview of the Bahá’í Faith can be organized into five key time periods:
· The Bahá’í faith began as early as May 23, 1844, when a young Persain merchant, Siyyid Ali-Muhammad (1819-1850), declared himself a messenger from God. He claimed his mission was to prepare the people for the coming of an even greater emissary from God. Siyyid Ali-Muhammad called himself the “Báb,”which translates as “the gate.” The Báb’s followers were referred to as “Bábis.” Because the Báb’s religious ideas strayed from mainstream Islam, the widely practiced religion in
· One of the Báb’s disciples was Mirza Husayn Ali (1817-1892), a Persian nobleman who took the title Bahá’u’lláh, which means “the glory of God” in Arabic. He emerged as a leader among the growing number of the Báb’s followers. Although born into a noble family, Bahá’u’lláh rejected the wealth of his ancestors and instead chose to focus on the needs of humanity. This action became part of the core Bahá’í value system that affects wealth accumulation and transmission, essential to the estate planning process (discussed below). While imprisoned in an underground dungeon in 1853, Bahá’u’lláh received a revelation that he was the messenger of which the Báb had spoken. As a result of this vision, he announced that he was the messenger, and he began to spread word of his religious experience. Bahá’u’lláh revealed volumes of sacred scriptures and established the laws and institutions of the Bahá’í Faith. The scriptures that Bahá’u’lláh wrote provide detailed laws and stipulations for the Bahá’í Faith, as well as theological teachings. These scriptures include the Kitab-i-Aqdas (The Most Holy Book), considered the central book of Bahá’í law, and the Kitáb-i-Íqán (The Book of Certitude), the chief doctrinal work. Bahá’u’lláh prescribed the creation of elected religious councils, which administer the affairs of the faith in place of a clergy. These scriptures are the source for much of the guidance on how to conform estate plans and documents to the Bahá’í Faith. Bahá’u’lláh’s teachings eventually lead to his exile from
· Bahá’u’lláh designated his eldest son, ‘Abdu’l-Bahá (which means “servant of Baha”) in his will as his successor. This use of a will to accomplish such a profoundly important transition of leadership creates a special importance and solemnity for Bahá’í to write wills. Under ‘Abdu’l-Bahá’s leadership, the Bahá’í Faith continued its global expansion and spread to the
· As did his father before him, ‘Abdu’l-Bahá designated his successor in his will, naming his eldest grandson, Shoghi Effendi, as his successor, following his death in 1921. Again, this act underscores the perhaps unique importance of a will to the Bahá’ís. Under Shoghi Effendi’s leadership the National Spiritual Assembly of the Bahá’ís of the United States was incorporated, creating the legal model for the subsequent incorporation of dozens of other national spiritual assemblies around the world. This body today overseas the administrative affairs of the Bahá’ís in the
· Since Shoghi Effendi’s death in 1957, Bahá’í religious authority resides not in a formal clergy, but rather in elected governing councils at the local, national and international levels, with the highest of these being the Universal House of Justice located in Haifa, Israel. There are 182 national spiritual assemblies around the world and more than 1100 local spiritual assemblies in the
Overview of Bahá’í Beliefs.
Bahá’ís believe in one God who is all powerful, omniscient, omnipresent and eternal. God is considered to be ultimately unknowable to human beings, but He progressively reveals His nature to humanity through His messengers, including Adam, Buddha, Krishna, Moses, Abraham, Zoroaster, Christ, Muhammad, the Báb and Bahá’u’lláh, who are known to Bahá'ís as Manifestations of God. One grows closer to God through prayer, spiritual practice, and service to humanity. ‘Abdu’l-Bahá encapsulated the Faith as follows: "To be a Bahá’í simply means to love all the world; to love humanity and try to serve it; to work for universal peace and universal brotherhood." These concepts may be embodied in letters of instruction, and perhaps to directions to fiduciaries with respect to the manner in which children should be reared and trust expenditures for children handled.
The belief in the unity of all religions is a central underlying principle within Bahá’í religious philosophy. The founders of all major religions are recognized as Manifestations of God who have progressively revealed what is essentially a single religion, “the changeless Faith of God, eternal in the past, eternal in the future.” Each Manifestation taught according to the societal needs of their time, and thus many of their social laws and teachings have differed. All the Manifestations, however, have restated and confirmed the core spiritual teachings common to all religions—that we are spiritual beings created in God’s image who are destined to acquire and reflect divine virtues such as compassion, kindness, love, mercy, and knowledge. The unity of humanity is another central teaching of the Bahá’í faith. Discrimination and prejudice are strongly frowned upon, as all humans are part of one race. Men and woman are considered equals. According to Bahá’í scripture, “Until the reality of equality between men and women is fully established and attained, the highest social development of mankind is not possible.” The goal is for women to participate fully as equals in all areas of human endeavor, including professional life, government, sciences and arts. In cases where the families can only afford education for one of their children, girls are given priority over their boys. Natural differences between the sexes are acknowledged, and women are expected to fulfill their obligations to bear and be the first educators of their children, but the men are also expected to share in household responsibilities and child care. The Bahá’í Faith sets this example by allowing women to participate fully in Bahá’í governing bodies up to the national level. An exception to this is the Universal House of Justice, which is restricted to men in accordance with Bahá’u’lláh instruction. Thus, in contrast with both Islamic and Jewish law, Bahá’ís should treat women as equal heirs to men, and with respect to education, perhaps more so.
Other universal spiritual principles taught by the Bahá'í Faith include the elimination of extremes of wealth and poverty, a spiritual solution to economic problems, and the harmony of science and religion. Extremes of wealth and poverty are considered harmful to society, and Bahá'ís believe these extremes will gradually be reduced as society matures. This doctrine can be an important factor to how some Bahá’ís structure their charitable and other bequests. While specified mandatory charitable giving is a key concept in the Bahá’í Faith (discussed below), wealthy Bahá’ís may be encouraged by this concept to focus on charitable giving and even limitations on the amount of wealth bequeathed to heirs, rather than the common focus of many clients primarily on the minimization of estate tax to maximize net bequests to heirs. For the Bahá’í client, maximizing wealth to the next generation may not be the primary goal, and may even be contrary to some clients’ interpretations.
The Bahá’ís are also strong supporters of the United Nations, based on the belief that the nations of the world will gradually create a world federal system of government as the basis for a just and lasting peace. Science and religion are considered complementary systems of knowledge that together can guide humanity to greater knowledge, understanding and advancement. Science gives humanity mastery over the physical side of the universe, but without the moral guidance of religion, it can be misused for evil. Science and religion are “different yet harmonious approaches to the comprehension of reality…these two paths are essentially compatible and mutually reinforcing.”
The world administrative center of the Bahá’í faith, and its holiest shrines, are located in the twin cities of Akka and
The Bahá’í Faith has no clergy, and the independent investigation of truth is a key Bahá'í principle. All Bahá'ís are responsible for reading, studying and applying the scriptures in their own lives. Only the writings of the Founders of the Faith—the Báb and Bahá'u'lláh—and the interpretations of their designated successors—‘Abdu’l-Bahá and Shoghi Effendi—are considered authoritative and binding on the believers. The Universal House of Justice is authorized to legislate on matters not specifically addressed in the scriptures, but issues that are not covered in the scriptures or in the rulings of the Universal House of Justice are left to the conscience of each individual. Each individual Bahá’í may apply the teachings to their own situation and arrive at personal understanding of the teachings of the faith. Thus, there may be significant variability in decision-making among Bahá'ís. This is vital for practitioners working with Bahá’í clients, and is different from many other faiths. Although many faiths provide strict interpretations on how various estate planning, health care and other decisions have to be made, practitioners need to be more careful with a Bahá’í client to solicit personal interpretations of general issues, rather than relying on previously used forms or standard language.
Bahá’ís pray individually or in groups in Bahá’í centers or their private homes. To date, only seven Bahá'í Houses of Worship have been built, one on each continent. The basic gathering for worship and fellowship is known as the Nineteen Day Feast. On the first day of each of the nineteen months in the Bahá’í calendar, local Bahá’í communities gather together for spiritual devotions, administrative consultation and fellowship. Devotions include the reading of texts from the Bahá’í Faith as well as texts from other faiths. Following devotions, the community usually has a period of open consultation to allow all members of the community to voice their opinions on community affairs.
General Bahá’í Concepts Relevant to Estate Planning.
There are a number of fundamental principles and beliefs that might affect estate planning. The following is a brief summary of some of these. This summary is not intended to be a listing of the most important principles:
- Individual Discretion
There is a distinction between principles and laws. A principle is a guiding value Bahá'ís apply to help determine the answer to a question. Laws are mandatory. Mandatory charitable contributions (“Huququ’llah”) and the writing of a will are laws. Similarly, refraining from gossip and backbiting is mandated by law. Laws are found in the original sacred writings, including the Book of Laws (Kitab-i-Aqdas). As noted above, if the scriptures and the rulings of the Universal House of Justice are silent on a particular point, Bahá’ís may make their own personal decisions, so long as they conform to the general guiding principles of the Faith.
Bahá’ís avoid rituals, or any elaborate actions performed in a prescribed, automatic manner. Bahá'u'lláh reduced rituals or formulaic observances to an absolute minimum, and prescribed only a few simple observances, such as the marriage and burial ceremonies and the daily obligatory prayers. This orientation will undoubtedly result in considerable variability in application of the principles contained in this article to each client. Many points raised in this article are really suggestions for the Bahá’í client to consider, not recitations of law that must be followed.
- Marriage and Divorce
Marriage is an integral part of the Bahá’í Faith, “a fortress for well-being and salvation,” according to Bahá’u’lláh. Monogamous marriage is considered to be the core building block human society. Within a marriage, men and women are considered entirely equal. Interracial marriage is encouraged because it demonstrates the religious value of humanity’s “oneness.” Marriages are not pre-arranged, but once a partner is chosen, both sets of parents are required to grant consent to the marriage. The parents are expected to guide their children through the decision to wed, as it is considered extremely important. Couples wed in front of two witnesses who are designated by the Local Spiritual Assembly. They must pledge to “abide by the will of God.” Bahá’ís believe that this vow represents and implies all marriage commitments. Couples are expected to remain faithful throughout their entire marriage. Aside from these requirements, the wedding may adapt to any societal or cultural norms.
Divorce is strongly discouraged, yet permitted in extenuating circumstances. Before a couple may officially divorce, they must separate for a “year of patience.” After the conclusion of the year, if they still can not reconcile, they may finalize the divorce.
- Conflict Resolution
Bahá'ís use “consultation,” a distinctive method of collective decision-making, to arrive at decisions that preserve unity and harmony. The method is used to make decisions within Bahá'í administrative bodies, and Bahá'ís are also encouraged to use consultation in making personal or family decisions. Consultation combines the freedom and obligation to fully and frankly share one’s views with the detachment to let go of ones ideas for the sake of the benefit of the whole. When facing a difficult decision, such as removing a family member from life support, consultation can help address each person’s concerns and fears. The goal is to reach a unanimous decision, but if this is not possible, the majority opinion carries. Consultation is based on the idea that each person brings a piece of truth to the table and that if all share their views peacefully, they can find a fuller understanding that also preserves harmony. The use of an in-terrorem clause to force submission or agreement would not be the preferred method of addressing family disharmony.
- Principles of Wealth
Extremes of wealth and poverty, as noted above, are viewed as a negative that should be addressed. The relative values of what constitutes “extreme” has to be interpreted by each individual Bahá’í, but the implications to planning are clear. Extremes of wealth and poverty lead to disunity and injustice. When seeking to apply this principle to estate planning, the mandatory charitable contributions discussed below should also be considered.
- Charitable giving
Giving to the Bahá'í Funds is considered a sacred obligation. The International Bahá'í Fund, administered by the Universal House of Justice, supports the growth and development of the faith internationally, as well as the maintenance of the faith’s sacred shrines and other endowments at the Bahá'í
Giving to the Bahá'í Funds is considered a bounty restricted to the believers; no funds or contributions are accepted from anyone who is not a member of the faith.
The amount given to the funds is not important, what is important is the regularity and spirit of sacrifice of the contributions. As Shoghi Effendi stated, “Contributing to the Fund is a service every believer can render, be he poor or wealthy; for this is a spiritual responsibility in which the amount given is not important. It is the degree of sacrifice of the giver, and the love with which he makes his gift, and the unity of the friends in this service which brings spiritual confirmations…”
It must be stressed that while giving to the funds is considered a spiritual obligation, contributing to the fund is an entirely private, voluntary act. Any form of solicitation or assessment of donations is not permitted.
The importance of charitable giving to support the Bahá’í Faith and institutions is substantial. “…our contributions to the Faith are the surest way of lifting once and for all time the burden of hunger and misery from mankind, for it is only through the System of Bahá’u’lláh – Divine in origin – that the world can be gotten on its feet and want, fear; hunger, war, etc. be eliminated.”
The Universal House of Justice wrote in a letter to a Local Spiritual Assembly the following guidelines concerning the direction of charitable giving: “There are mighty agencies in this world, governments, foundations, institutions of many kinds with tremendous financial resources which are working to improve the material lot of human beings. Anything we Bahá’ís could add to such resources in the way of special funds or contributions would be a negligible drop in the ocean. However, alone among men we have the Divinely-given remedy for the real ills of mankind; no one else is doing or can do this most important work, and if we divert our energy and our funds into fields in which others are already doing more than we can hope to do, we shall be delaying the diffusion of the Divine Message which is the most important task of all.” While much of Bahá’í charitable giving will be directed to Bahá’í institutions, the principles above will often result in contributions to other causes consistent with general Bahá’í philosophy.
- Huququ’llah (The Right of God)
In addition to making regular, voluntary contributions to the Bahá'í Fund, Bahá’ís are expected to make a different class of monetary payment known as Huququ’llah, or “The Right of God.” The essential principle of Huququ’llah is that nineteen percent of one’s “excess wealth” actually belongs to God, as opposed to regular contributions to the fund, which are made by the individual from his own resources. Huququ’llah payments are made to the Universal House of Justice as the Head of the Faith. This fund is used for the promotion of the Faith and its interests as well as for various philanthropic purposes. The offering of the Huqúqu'lláh is a spiritual obligation, the fulfilment of which is left to the conscience of each Bahá'í. As with the general Bahá'í Funds, no one can be pressured or solicited to make payments.
“Huququ’llah” (The Right of God) is mandated to “purify one’s riches and earthly possessions.” Huququ’llah is more than merely a means of raising charitable dollars to fund essential Bahá’í institutions and infrastructure. Consistent with the concept of avoiding extremes of wealth or poverty, Huququ’llah is a means of redistributing wealth within and without the Bahá’í community. Huququ’llah also embodies the concept of each Bahá’í taking responsibility for the world Bahá'í community. Since the humanity is all really one family, Huququ’llah is used to share profits, to reallocate wealth.
Certain assets are deemed exempt from Huququ’llah payment. These include the client’s residence and needful furnishings as well as needful business and agricultural equipment used to produce subsistence. The term “needful” is intentionally used as it requires an element of personal determination by the adherent. After discounting the exempt classes of wealth, if the remaining excess wealth exceeds a prescribed amount, 19% falls due as a Huququ’llah payment. The payment is due only once. Only if an individual accrues additional excess wealth up to the prescribed amount, Huququ’llah again falls due on the increased wealth. The prescribed amount on which Huqúqu'lláh is payable is nineteen mithqáls of gold. A mithqáls is a measure of weight traditionally used in the
General living expenses, costs of selling possessions, and taxes, are all excluded from the base on which Huququ’llah is paid.
The donee or heir adds the value of assets received by gift or inheritance to the base upon which Huququ’llah is calculated.
The obligation to make this charitable payment is upon each individual Bahá’í. One Bahá’í cannot discharge another’s obligation to make this payment. Thus, if a parent does not have a taxable estate, the estate would still appear to have to pay the amount of contribution calculated even though no contribution deduction would be available to the estate. However, if the heirs could pay the amount due as agents on behalf of the estate and for the decedent, an income tax contribution may be realized. A husband and wife may choose to address their obligations jointly. This permits the deferral of the contribution until the second death when an estate tax is more likely to be due.
The number “19” has special significance to the Bahá’í faith. There are 19 “Letters of the Living, a title given to the Báb and his first 18 followers, and 19 months in the Bahá’í calendar.
The mandatory Huququ’llah payment can be made in any format so that current estate planning techniques such as charitable remainder trusts, charitable lead trusts, and so forth, can all be used. Each technique, however, raises issues that need to be addressed to assure that the Bahá’í client is meeting his or her religious obligation to tithe. In contrast, the concept of a donor advised fund, private foundation or reservation of a testamentary power to appoint CRT assets will have less applicability given the substantial mandatory payment to the specified Huququ’llah charity.
A will should provide for the pro-rated or unpaid Huququ’llah. Some leave it to calculate and pay on death. Some estimate this by using 19% of the estate, after funeral and burial costs have been discounted and any outstanding debts settled
Although not mandatory it is common for Bahá’í faithful to leave additional funds to charity in their wills. This includes the local spiritual assembly which is a group of 9 people elected democratically on a local level. Some cities have more than one, smaller cities have only one. Structurally, the local assemblies are all part of the National Spiritual Assembly of the Bahá’ís of the
For purposes of Huququ’llah each Bahá’í must make their own payments. However, consistent with typical estate tax planning, a husband and wife are viewed as one economic unit for the application of Huququ’llah in that either can pay the mandatory donations of the other. Thus, traditional use of a marital deduction bequest or trust on the first death would be acceptable, and the contribution deferred to the second death. If there is no estate tax because of the estate tax exclusion on the first death it may be advantageous to have the surviving spouse make the Huququ’llah payment if the estate is likely to be taxable on the second death. On the second death, Huququ’llah would be mandatory for both the amounts due on the first and second spouse’s death. This deferral approach is valid under Bahá’í law if the decedent’s manifested intention was that the contribution would be made on the death of the surviving spouse. This intent should be memorialized in a letter of instruction in the case of an outright marital deduction, or be incorporated into the terms of a marital or bypass trust to assure its payment. If a Bahá’í’s spouse is not a Bahá’í, or is for whatever reason believed unreliable to make the Huququ’llah payment, then the payment should be made on the first death. It is not clear in such instances whether deferring the payment, even with a mandatory trust provision to assure payment, would be appropriate.
The Bahá’í faith teaches that every person has a body and a soul. Death is viewed as only corporal, as it is the soul being freed from its physical confines into the spiritual afterlife. The spiritual worlds which exist after death are believed to be timeless and placeless and thus the soul which resides there is everlasting. According to the teachings of Bahá’u’lláh, “the world beyond is as different from this world as this world is different from that of the child while still in the womb of its mother.” Bahá’í view life as preparation for the next life, just as the womb prepares the child for life in this world.
- Funeral and Burial.
The religious community encourages members to keep a will outlining their wishes for their funeral services. Given some of the differences in Bahá’í traditions and those more common in Western culture it may be advisable to memorialize the details of funeral and burial customs in some detail in a living will. Bahá'í law requires the burial to take place within one hour’s travel time from the place of death. Burial is to take place as soon as possible after death, usually within days. During the funeral, Bahá’í texts and prayers are read, including the prayer for the deceased. This prayer is only used at a funeral. The service differs based on societal and cultural norms. It is simply required to be a dignified service for the deceased. The casket should be a durable material made of hard resistant stone, hardwood, or crystal, which is believed to be a means of honoring the body and caring for it.
Sample Clause: I direct that all burial and funeral arrangements conform with Bahá’í law and tradition, and shall include: No cremation or embalming (unless required by applicable law). My body should be buried in a [five] white cotton or silk sheets in accordance with Bahá’í custom. My body should be buried in a durable casket made, if feasible, from crystal, hard resistant stone, or hard wood. My body should be buried, to the extent feasible, within one hour’s traveling distance from the place of my death. I should have a special engraved Bahá’í burial ring placed on my finger bearing the inscription: “I came forth form God and return unto Him, detached from all save Him, holding fast to His name, the Merciful and the Compassionate.” The Bahá’í Prayers for the Dead should be recited at my funeral.
- Organ Donations.
Organ donation and donation for medical research is permitted because it is viewed as a form of charity, an admirable value in the Bahá’í Faith. Organ donations are viewed as an “honorable choice”. However, organ donations are viewed as an individual decision. If a Bahá’í does donate any of their organs, it is crucial that the rest of their body is properly and respectfully interned in accordance with Bahá’í tradition.
- Investment Standards.
Bahá’í are to remain abstinent from all alcoholic beverages, narcotics, and hallucinogenic drugs. While it is not clear that Bahá’í doctrine would mandate that investment policies of Bahá’í avoid securities of companies specializing in these industries, restricting investments to avoid these may be a modification which an individual Bahá’í client might prefer. The approach to achieve this objective would be for the investment provisions of a will or trust to include a specific modification to the prudent investor standard to preclude such investments. These provisions could be quite similar to restrictions used for Muslim clients.
Given the philosophical foundations of the Bahá’í Faith of world peace, unity, and other concepts discussed above, some Bahá’í clients might wish to add additional investment restrictions to preclude investment in defense contractors and the like. Since a socially oriented investment strategy is not clearly permitted under the Prudent Investor Act, specific modifications should be made to the governing documents.
Sample Clause: The [Executor] Trustee is authorized, but not directed, to structure any investments and assets, to the extent feasible, to be in accordance with Bahá’í religious principles. Such standards may include by way of example, avoiding stocks of companies that engage in businesses involving alcohol, gambling, pornography, or armament manufacture. In the event of any uncertainty as to the application of Bahá’í investment philosophy to this [Estate] Trust, the Trustee’s decision shall govern. The Trustee may consult with the Local Spiritual Assembly of the Bahá’í of [City, State] for guidance and for further clarification.
Modifications of Estate Planning Documents to Conform to Bahá’í Religious Principles.
- Living Will and Health Care Proxy.
The official policy is that it’s within each Bahá’í’s personal discretion to determine if they want to draft a living will or health proxy. There are no objections from the Faith to removal of life support. However, in light of the many specific laws and customs it is vital that the Bahá’í client have a health care proxy appointing agents familiar with the issues involved, and a living will or letter of instruction setting forth the religious and personal decisions as guidance for the agent.
Death is viewed as a joyous occasion. It is believed that one of the reasons the Faithful are not told more about the next world, the “World of Splendor”, the “Abha” Kingdom, is because if people knew the splendor awaiting in the next life, they might accelerate the process of reaching there.
While there is no specific law governing euthanasia, so that each Bahá’í must make their own decisions, Bahá’í beliefs would seem to suggest against it. Bahá’í are to honor life and honor their bodies. We are in this world for spiritual evolution. The soul, it is believed, is not affected by a person being in a vegetative state. There is much more going on then just a body. Whether the soul needs to stay in this world, even if the body in which the soul resides is in a coma or vegetative state, is a matter to evaluate. People cannot determine what evolution that soul may be experiencing. There could yet be important spiritual implications for the soul remaining in the body, and releasing the soul to the next world by terminating what might be perceived as heroic measures could disrupt this. The decisions for a Bahá’í planning a living will require him or her to weigh this risk and several other potentially inconsistent principals: unity of the family, honoring the body, honoring and giving the opportunity for the soul to evolve. It is a personal decision to be weighed and evaluated.
Health care decisions should preferably be made by the family. This approach raises problems in the context of a health proxy if state law provides that only one agent can be named at a time. The approach might be to request, but not require, that the agent consult with the family and endeavor to consider the input from each person before making a decision as to how to act.
The provisions outlining Bahá’í funeral and burial practices, discussed below in the context of the will, should also be incorporated into the living will.
- Power of Attorney.
While there are no specific laws which affect a power of attorney there are a number of points unique to a Bahá’í client which could be incorporated. These might include: an authorization for the agent to give charity, but in particular to adhere to the mandatory tithing requirements of Huququ’llah. The provisions governing investments could recommend, or if the particular Bahá’í prefers, mandate, that investment strategies exclude investments in liquor manufacturers, armament makers, etc. The agent could expressly be authorized to make payments for education. The gift provisions could be modified to reflect that should gifts towards education be made that if funds are limited that female heirs should be favored. While mandatory gift equalization would not necessarily be required, application of the gift powers in a manner that does not create family disunity could be included as suggestive language for the agent. The typical boilerplate language authorizing an agent to sue on behalf of the principle could be modified to reflect the Bahá’í philosophy of striving to reach a consensus or understanding.
According to Bahá’í law a will must be written. As stated by Bahá’u’lláh, “A person hath full jurisdiction over his property. If he is able to discharge the Huququ’llah, and is free of debt, then all that is recorded in his will, and any declaration or avowal it containeth, shall be acceptable. God, verily, hath permitted him to deal with that which He hath bestowed upon him in whatever manner he may desire.” (See, Questions and Answers, Kitab-i-Aqdas, no. 69). Further, as discussed above, the mantle of leadership of the Bahá’í faith was passed twice to successive generations through designations in a predecessor leader’s last will and testament. This unique and important historical context makes the writing of a will an especially meaningful task for Bahá’í. Finally, the Bahá’í Faith advocates that wills include, in addition to provisions governing the transmission of wealth, statements of a spiritual nature (see below).
There are no specific religious dictates as to what must be provided for disposition of assets after a Bahá’í has met his or her charitable responsibility to the community, and any debts. However, the general themes and principals of the Faith should be embodied in the will and its provisions. So for example, perhaps equality amongst heirs is preferable from the standpoint of maintaining family harmony and unity, but it may not be practical for other reasons. If wealth is being transmitted, the greater social function of eliminating extremes of wealth and poverty should be born in mind.
Given the philosophical concept of striving for consensus and harmony, an In Terrorem clause should not be favored, nor would it seem that disinheritance would be generally an appropriate method of dealing with an issue with an heir. Rather, some type of mandatory mediation consistent with Bahá’í principles, perhaps supervised by a local or regional counsel, would be preferable. That being said, the latitude (responsibility) given to each Bahá’í suggests that these decisions are in the hands of the individual. However, consistent with Bahá’í traditions and philosophies, the will should encourage the fiduciaries, family, beneficiaries or others involved to discuss the circumstances and considerations of any decision and endeavor to understand and reconcile any differing views without litigation.
Sample Clause: With respect to the resolution of any disputes that arise under my will or under any trust formed hereunder, I recommend and encourage any persons involved in any dispute to endeavor to resolve any such dispute in a manner consistent with the Bahá’í values of honesty, trustworthiness, compassion and justice, and in a non-adversarial manner. The objective of this dispute resolution provision is for those participating in any dispute or other disagreement to endeavor to emphasize the common good of all involved, and to carry out my wishes as set forth in this Will, rather than to emphasize or strive for the benefit for a specific individual. To facilitate such an approach, and to minimize the disunity litigation could create, any dispute under this Will or any trust formed hereunder shall be resolved in accordance with the following mechanism. If any beneficiary under my Will in any manner, directly or indirectly, contests this will or any of its provisions, or brings suit or other action against any other beneficiary with respect to any matter hereunder, or with respect to any asset received hereunder, then such contest or dispute shall be submitted to binding, non-appealable arbitration in [City Name, State Name], in accordance with the decisions or recommendations to be designated by the Local Spiritual Assembly, or its successors. It is my specific intent that the holding of any such Local Spiritual Assembly be non-appealable, even in instances of claimed fraud, bias or if the Local Spiritual Assembly is claimed to have exceeded its powers. Each beneficiary hereunder shall execute an agreement, as part of any receipt or release prior to receiving any distribution of assets hereunder, consenting to this provision. If any beneficiary fails to execute and agree to such a provision, or to adhere to such provision, or if any beneficiary brings any contest, suit or action against any beneficiary hereunder before any court, arbitrator, mediator or other person or body other than as provided for in this provision, then any share or interest in my estate given to such contesting beneficiary under my Will is revoked and such assets shall be disposed of in the same manner provided herein as if the contesting beneficiary and his or her issue had predeceased me. Each clause in this provision is intended to be severable. If any term or provision of this clause is held to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this clause. This provision shall be construed in all respects as if such invalid or unenforceable clause or portion thereof were omitted, or if feasible reformed in a manner that were enforceable with alternative terms or provisions to effectuate as closely as possible my original intention to the extent lawful and practical. This clause shall be governed by and construed in accordance with the laws of the State of [State Name] and each beneficiary hereunder agrees to personal jurisdiction in the State of [State Name] and before the Local Spiritual Assembly hereinabove specified.
Burial and Funeral
It is important that members of the Bahá’í faith stipulate in their will that they want a Bahá’í funeral and burial to assure that these wishes will be carried out, and that the executor has the authority to pay for the costs of adhering to Bahá’í traditions and laws.
Sample Clause: I am a member of the Bahá’í Faith and wish that all my funeral and burial arrangements (including the recitation of the Bahá’í prayer for the dead) be carried out in conformity with Bahá’í laws and customs. In the event of any uncertainty as to what this constitutes I direct my executor to consult with and be bound by the decisions of the Bahá’í Local Spiritual Assembly located in [City Name, State Name] (“Local Spiritual Assembly”). I further direct my Executor to pay from my estate any costs associated with implementing these directives. By way of example and not limitation Bahá’í funeral and burial customs shall include the following: I expressly direct that my body not be cremated, but rather buried in the Bahá’í tradition. To the extent feasible and not violative of any applicable law, I request that my burial take place within a one-hour journey of the place of my death. I recognize that there may be some uncertainty as to the location of my death, and the method of measuring what constitutes a one-hour journey from that location. Unless required by applicable law, it is my express wish that my body not be embalmed. Prior to burial my body should be wrapped in a [five] silk [cotton] cloths [or another variation that the client wishes] in accordance with the Bahá’í custom. To the extent feasible my body should be buried in a casket made from permanent materials, such as crystal, hard durable stone, hard durable wood, or another suitable material.
To avoid any issues in this regard with the determinations required to implement the above wishes, I direct that all such decisions shall be made in the absolute discretion of my Executor. If my Executor is unable or unwilling to make this decision then the Local Spiritual Assembly shall make the determination. Any such decisions shall be binding on anyone with any interest in these matters. However, consistent with Bahá’í traditions and philosophies, I encourage my Executor, or the Local Spiritual Assembly as the case may be, to discuss the circumstances and considerations of any decision with my family and endeavor to understand and reconcile any differing views. To avoid any legal issues whatsoever in this regard, all decisions shall be finally determined by my Executor or the Local Spiritual Assembly.
Tangible Personal Property
While a Bahá’í has testamentary freedom to distribute assets however he or she wishes, many may choose to leave religious objects, such as prayer books, other religious books and papers, etc. to the Local Spiritual Assembly. If so, then the general clause for disposition of tangibles should be amended to first provide for this bequest.
Charitable Bequests and Charitable Tithing – Huququ’llah
Charitable giving is universal among Bahá’í clients. Bequests will typically take one of two forms. The first, discussed above, is the mandatory 19% “tithing” known as “Huququ’llah”. Every Bahá’í will must include a make up provision to assure that the decedent’s mandated charitable obligations have been met. Under Bahá’í law, no Bahá’í may distribute assets unless first all debts, including Huququ’llah, are paid.
In addition to the mandatory bequests of Huququ’llah, many Bahá’í will make additional bequests to fund Bahá’í charitable endeavors. These optional bequests will be made to either a local, national or international organization. For clients that prefer to benefit the local Bahá’í institutions, the bequest should be made payable to “The Spiritual Assembly of the Bahá’ís of [City Name, State Name].” For clients wishing to benefit a national or international organization, bequests should be made payable to the National Spiritual Assembly of the Bahá’ís of the
Because of the substantial charitable obligation met under many wills, a copy of the will should be given to the Local Spiritual Assembly or to the National Spiritual Assembly.
The simplest approach for a Bahá’í to address the requirement for Huququ’llah would be to make a determination as to what amount is payable and to provide in his or her will a specific bequest of the dollar amount necessary. Practically speaking, this would likely be impossible given the nature of the calculation. A Bahá’í could, however, greatly simplify the calculations by assuring that each year his or her Huququ’llah payments are made so that only the final year and estate payments would be due. In the case of disability or illness the periodic payments would have to be kept current through payments by an agent under the client’s durable power of attorney, so that document too would have to include a mandate for the agent to make the appropriate payments.
Sample Clause: I give, devise and bequeath, the pecuniary sum necessary to discharge my personal obligation, and the obligation of my estate, of making a charitable donation to the Bahá’í Faith as mandated by Bahá’í law. This sum shall be calculated based on Bahá’í law governing the payment of 19% of my “profits”, as defined and adjusted as mandated under Bahá’í law, for any year or partial year prior to the date of my death which remains unpaid, and 19% of the “profits” earned by my estate to “Huququ’llah”. This bequest should be made payable to “The Bahá’í Huququ’llah Trust”,
I recognize and understand that the terms used in making this calculation necessarily differ from the manner in which such terms are defined under Generally Accepted Accounting Principals,
The Executor may consult, in the Executor’s discretion, the Local Spiritual Assembly of the Bahá’í in [City, State] for guidance, but in all events the final determination of the Executor shall control and be binding on any person with an interest herein.
Assuring Children are Reared as Bahá’ís
If there are minor children and trusts are established, those trusts should provide for rearing in accordance with Bahá’í law and tradition. This should include an emphasis on educational funding, especially for female descendants. Any trust should address the Huququ’llah obligation of the beneficiary by permitting the trustee to make a determination to what extent the beneficiary would have an obligation to pay Huququ’llah on trust earnings and accretion and to either make those payments or distribute funds to the beneficiary to make those payments. Since there does not appear to be any type of tracing, the trustee could be given the flexibility to opt not to make distributions directly or indirectly for the beneficiary’s Huququ’llah obligations if those obligations are met from other sources of the beneficiary. This would be obviously advisable if the trust corpus and earnings are exempt from estate and GST tax and other resources are available to fund the required tithing. Given the trend toward increasing use of institutional fiduciaries, it is important to provide guidance in wills and trusts, even if in terms of non-binding suggestions, for how a trustee should evaluate distributions to achieve the Bahá’í client’s goals of transmitting his or her Bahá’í heritage, beliefs and values to children or other heirs.
Sample Clause: In making discretionary distributions to the beneficiaries of this [Name of Trust] Trust I suggest but do not require that the Trustees consider the following personal directives and goals. It is my express desire that the beneficiaries of this trust be raised in a manner that conforms with and encourages their adherence to the Bahá’í Faith. Therefore, the Trustees shall liberally distribute funds for education, programs, travel and other expenses to promote and foster a knowledge of, respect for and understanding of the Bahá’í Faith, traditions and values.
I recognize that in some instances to achieve this goal the Trustee may have to make distributions to or for the benefit of the guardian for a particular minor beneficiary, and I expressly authorize the Trustee to use reasonable discretion to do so.
The Trustee, by way of example and not limitation, may liberally expend funds for formal education as well as informal religious education and religious related endeavors for any beneficiary. Such expenditures may include by way of example and not limitation a pilgrimage for the beneficiaries to visit Bahá’í holy places in
In keeping with the Bahá’í practice of encouraging each Bahá’í to pursue their own personal independent investigation of truth, I authorize the Trustee to make, in the Trustee’s discretion, distributions which might otherwise be considered unusual, if such distributions facilitate a reasoned and sincere spiritual pursuit by any particular beneficiary.
In order to inculcate the value of Bahá’í mandated charitable giving,
“Huququ’llah”, I authorize the Trustee to make distributions to “The Bahá’í Huququ’llah Trust”,
While I understand the concept of an incentive trust I have not mandated that such a trust distribution approach be used. However, I request but do not require that the Trustee in making distributions to any particular beneficiary consider the impact of the particular distribution, and any pattern of distributions, on the beneficiary in light of Bahá’í beliefs that work performed in the spirit of service is a form of worship. If the Trustee believes, in the Trustee’s discretion, that distributions would inhibit a particular beneficiary from pursuing gainful activity (the term gainful to be broadly defined to include volunteer and charitable endeavors, not only those endeavors generating economic remuneration), then the trustee may limit distributions accordingly.
In considering the charitable contributions to Huququ’llah, and distributions to beneficiaries, I authorize the Trustee, in the Trustee’s discretion, to consider the Bahá’í principle of avoiding excessive materialism, and to plan contributions and donations with consideration to this goal.
The Executor may consult, in the Executor’s discretion, my family and the Local Spiritual Assembly of the Bahá’ís in [City, State] for guidance, but in all events the final determination of the Executor shall control and be binding on any person with an interest herein.
There are several formalities to adhere to in drafting the actual will for a Bahá’í client. The front of the will should be adorned by the “most great name”, “God, the most Glorious of the Glorious”. From the Bahá’í perspective this is the 100th name after the 99 names of God revealed in the Islamic tradition. While this name can be written in regular type, it is traditional and desirable for many that it be in Persian calligraphy. The printed version below can be pasted into the client’s will as the cover page for a Bahá’í client (deleting the “top of page”). This is copyrighted by the National Spiritual Assembly of the Bahá’í’s of the
Bahá’í tradition, in the name of Shoghi Effendi, states: “The execution of the provisions of the will causes the spirit of the deceased to rejoice in the
A typical heading of a Bahá’í will might read as follows (note that some of the following is optional to the particular testator):
[Symbol of God’s name in Persian Script]
The Most Great Name: Ya Baha’u’l-Abha
O Glory of the Most Glorious
LAST WILL AND TESTAMENT
[the following are mere suggestive language which each Bahá’í can add to his or her will or modify, or use other language in the context of testifying to the oneness of God]
I, Person’s Name, bear witness unto the oneness of God
in the Dayspring of his revelation.
I herein make mention of that which is praiseworthy, so that this will may be
a testimony for me in the kingdoms of Revelation and Creation and as a treasure with the Lord, the Supreme Protector, the Faithful.
I also bear witness that Thou has unsealed the choice Wine with fingers of might and power.
“Oh, Son of the Supreme:
I have made death a messenger of joy to thee.
Wherefore doest thou grieve?
I have made the light to shed on thee its splendor.
Why doest thou avail thyself therefrom?”
In the event that a Bahá’í fails to prepare a valid will, Bahá’í law provides specific guidelines within its religious text, the Kitab-i-Aqdas, regarding intestate inheritance. For Bahá’ís, the religious distribution scheme is only relevant in the default of executing a valid secular will. There is no implication that the religious mandated distribution of an estate is a model to follow. In fact, the Bahá’í intestacy laws may have been enacted to address the historical problems Bahá’í faced when living under Islamic law with no secular distribution structure provided.
According to Bahá’í intestacy guidelines, a male heir will receive more than a female heir. The eldest son is expected to receive his father’s house and clothing, as well as his share in the equally divided residuary estate. The widow receives only 15% of the estate. Additionally, the deceased son will pass his father’s inheritance on to his sons, but a deceased daughter’s share will be divided amongst the remaining heirs. This male preference is viewed as necessary because it is expected for the males to take financial responsibility for the care of their female family members.
In contrast with Islamic law, the Bahá’í model of inheritance is not viewed as the ideal. Bahá’ís are not encouraged to draft their will based on these provisions.
- Revocable Trusts.
With the common use of revocable living trusts as will substitutes, may a revocable trust be used in lieu of a will? Regardless of the technical interpretations of this issue, given the historical context of the use of wills in Bahá’í history, at least a pour over will should be used that includes the language and addresses the concepts above. Further, the will, to comport with Bahá’í law, even if a trust is a valid substitute, should consider including dispositive provisions to apply in default of a pour-over. This would enable the will, even if it does nothing more than actually pour assets into a revocable trust, to comply with the requirements of Bahá’í law and tradition. Thus, even if a client can successfully re-title all assets to avoid probate, a will should be prepared. It appears that Bahá’í law mandates the writing of a will, not that the will must govern the distribution of property which may be accomplished in any manner the client wishes, or planning dictates (so long as the required charitable contribution to Huququ’llah is met).
To assure that the Bahá’í laws are adhered to, and that the Will and revocable trust if both are used are coordinated, the pour-over Will could contain the mandated charitable bequest to Huququ’llah, and the revocable trust could include a make up provision to make any payments not made under the Will.
Sample Clause: I give, devise, and bequeath to the Fiduciary in office at the time of my death under a certain Trust Agreement entitled [Revocable Trust Name] made the [Trust Date], between myself and [Co-Trustee Name, if any] as Co-Trustee, to be held, administered and disposed of by my Fiduciary in accordance with the provisions of said Agreement. In the event that for any reason the above named trust is held or found to be invalid, or if for any other reason the assets of my estate cannot be properly transferred to such trust, and in any event in order to comply with the dictates of Bahá’í law that mandate the writing of a will, then, in such event, all the rest of my residuary estate shall be disposed of in accordance with the following provisions [list full dispositive provisions below].
- Irrevocable Trusts.
If an irrevocable trust is used in planning, does the Bahá’í obligation for tithing, Huququ’llah, apply to the transfer of assets to the irrevocable trust? Once the trust is funded, who is obligated to pay Huququ’llah on the income of the trust? The trustee, the current beneficiaries, the remainder beneficiaries? All of them in some proportion? Are Huququ’llah payments due only on income? On current distributions or on terminating distributions?
Other issue that arises with respect to a trust are similar to those that were discussed above with respect to wills. Is there a reasonable limit on how much should be transferred to an heir if extremes of wealth are to be avoided? What provisions should be provided to pass on Bahá’í values to children or other heirs (educational expenses, costs of pilgrimages, etc.).
Many clients wish to conform their estate planning and their documents to their religious principles and beliefs. The challenge for the practitioner is to endeavor to integrate religious concepts and traditions into a modern estate plan. This has to be done while adhering to the technical religious requirements and the spirit of the Faith’s philosophy, all while minimizing the legal and any unintended tax consequences. This article has endeavored to provide an overview of how this process can be handled for a client of the Bahá’í Faith. Specific laws and customs have been summarized, and an effort made to suggest how these can be taken into consideration when planning an estate for a Bahá’í client. In all instances the client and appropriate religious advisers should be consulted by the client to assure the appropriateness of the final provisions. The simplest and most practical approach may be to use the general suggestions in this article for the preparation of a preliminary draft of any document, which the client can then have reviewed as to religious implications by his or her Bahá’í Local Spiritual Assembly.
Bahá’í Faith. Postgraduate Medical Council of NSW.
<http://www.diversityinhealth.com/issues/religion/bahai.htm> 22 June 2007.
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“Bahá’í Faith: A New spirit in the World,” brochure (
“Bahá’í Laws.” Wikipedia Online. 2007. Wikipedia. 22 June 2007
“Bahá’ís Leaving a Legacy Through Planned Giving,” brochure (
Fazel, Seena. (1994). “Inheritance” [electronic version]. Bahá’í Studies Review, 4(1).
“Huququ’llah.” Wikipedia Online. 2007. Wikipedia. 28 June 2007
Magida, Arthur J., and Stuart M. Matlins. How to Be a Perfect Stranger.
“The Bahá’ís,” brochure (
“The Writing of a Will,” brochure (
Letter One: Query to the Universal House of Justice, November 12, 1991; http://bahai- library.com/uhj/huququllah.transactions.html.
Question 4, Lights of Guidance 1988 Edition.
Research Department of the Bahá’í
[i] This article was initially published by Leimberg Information Systems on its website www.leimbergservices.com.