Inheritance Determination for Heirs Living in the USA and Canada: Heirs' Buy-Out Agreements, Power of Attorney and Protecting the Share
When a parent dies in Jordan, an heir living in the USA or Canada finds themselves facing financial decisions that are asked of them from a distance: a power of attorney a sibling requests "to get the paperwork moving," an heirs' buy-out agreement (takharuj) offered to them in return for a sum of money, or an estate that stays frozen because no one in Jordan has the standing to act on it. The Jordanian Personal Status Law No. 15 of 2019 regulates inheritance and devotes Articles 314 to 319 to takharuj between heirs, while the Sharia Procedure Law No. 31 of 1959 and its amendments places inheritance, the determination of inheritance shares and takharuj within the jurisdiction of the Sharia courts. What the heir signs from abroad may take them out of the estate in a way that is hard to reverse, which is why every step is reviewed before signing with a lawyer who specializes in inheritance cases and follows the file in Jordan.
1. The Inheritance Determination Certificate: The Document the Estate Starts From
The inheritance determination certificate is the document that identifies the deceased's heirs and each heir's share, and the later transactions in the estate are built on it: takharuj, the transfer of real property into the heirs' names, and partition or sale. The Sharia Procedure Law gives the Sharia courts jurisdiction over inheritance and over determining the heirs' shares under Sharia and under the rules on transfer by inheritance (intiqal), and over takharuj from all or part of the estate in movable and immovable property. As a rule, the inheritance shares are determined by the court of the deceased's place of residence, and the law allows the court where some of the heirs reside to do so where the deceased's place of residence was outside the Kingdom. This situation comes up repeatedly when a parent dies in the USA or Canada while their property remains in Jordan.
This article covers the Sharia-court regime for Muslims. The family matters of non-Muslims follow their own religious community councils, and this article does not cover them.
Among the first things the lawyer examines is the applicable law itself, since Article 327 of the Personal Status Law provides that its provisions do not apply to deaths that occurred before the date it came into force, which remain governed by the legislation in force at the time of death. An estate that has remained without an inheritance determination certificate for years may therefore be subject to a text other than the current one. The lawyer also checks that the list of heirs is complete and the shares are correct before any transaction is built on them, because correcting an error in the certificate may require an action to correct the inheritance determination certificate before the Sharia court, and the law requires the Sharia Public Prosecution to intervene in actions to correct the inheritance determination or a takharuj where minors are among the heirs.
2. The Stages of the Estate and the Body Responsible for Each
An estate file in Jordan passes through several bodies, and each stage has its own point of failure. The following table summarizes these stages as they look to an heir living abroad:
| Stage | Jordanian body involved | Point of failure |
|---|---|---|
| Inheritance determination certificate | The Sharia court of the deceased's place of residence, or the court where some of the heirs reside if the deceased lived outside the Kingdom | An heir left out or an error in the shares, which may require an action to correct the inheritance determination certificate |
| Power of attorney issued in the USA or Canada | The court or department before which the power of attorney is used in Jordan, once it is authenticated | A power of attorney broader than the estate needs, which may reach takharuj or the disposal of the share |
| Takharuj | The Sharia court | Giving up the share for a consideration that does not reflect the value of the estate, even though takharuj can be cancelled by mutual consent (iqala) (Article 317) |
| Transfer of real property to the heirs | The registration directorate of the Department of Lands and Survey | Property the deceased himself inherited from others on which no transfer by inheritance into his name was carried out, which the takharuj does not reach unless its deed expressly provides so (Article 318) |
| Partition or sale | The partition committee in the registration directorate, then a challenge before the court | A notice the heir living abroad does not answer, so the file proceeds with no defense of their share |
These stages do not always follow this order: takharuj may be offered before all of the estate's real property is known, and a power of attorney may be requested before the certificate is issued. From the facts of each file, the lawyer determines which stage needs someone acting in Jordan and which can wait.
3. Takharuj: One Signature That Takes the Heir Out of the Estate
Article 314 of the Personal Status Law defines takharuj as the heirs settling among themselves to remove some of them from the inheritance in return for something specified. Under Article 315, if one of the heirs enters into takharuj with another of them, he is entitled to his share and takes his place in the estate. So the heir who accepts a sum of money or a specific property from a sibling in return for their share leaves the estate, wholly or to the extent covered by the takharuj, and what was theirs becomes someone else's property.
Undoing that effect is difficult. Article 317 provides that takharuj may be subject to cancellation by mutual consent, meaning that cancelling it by agreement requires the consent of the other party himself; otherwise, the route that remains is an action to correct or annul the takharuj before the Sharia court. Article 316 protects the heir within certain limits, since the takharuj contract does not cover any property of the deceased that comes to light after the contract and that the departing heir did not know of at the time. As for what the heir gave up while knowing it existed, going back on it requires a legal ground proven before the Sharia court, and the lawyer examines whether the facts of the file establish such a ground and what proving it would require.
Article 318 adds a restriction that concerns estates spanning more than one generation: takharuj does not apply to immovable property inherited from others unless the transfer by inheritance into the name of the deceased was carried out before the takharuj deed was registered, unless the deed expressly provides otherwise. A grandfather's land that was never transferred into the father's name may therefore stay outside the takharuj, or fall within it through a single phrase in the deed.
The law has surrounded takharuj with procedural safeguards. Article 319 provides for the registration of takharuj deeds to be organized by instructions that include the period that must pass between the death of the deceased and the takharuj, and the Instructions on Organizing and Registering Takharuj Deeds require the court, before registering it, to explain its effect to both parties, and set a condition on the consideration where the estate includes cash. These safeguards, however, assume that the heir knows what the estate consists of and what it is worth, and that knowledge is exactly what many people living abroad lack when they rely on what a sibling tells them.
Whether to accept a takharuj or to claim the share itself or a partition of the property depends on what the estate consists of, the value of its real property, the number of heirs and their positions. That choice is itself a legal point that merits consultation before any signature.
4. A Power of Attorney Signed Abroad Can Go Beyond What the Estate Needs
Most heirs living in the USA and Canada cannot follow the estate file themselves, so they give a power of attorney to a sibling or to a lawyer in Jordan. The Sharia Procedure Law makes organizing powers of attorney relating to the business of the Sharia courts part of their jurisdiction, and the takharuj instructions require the court to apply their provisions when registering powers of attorney for takharuj. A takharuj can therefore be carried out under a power of attorney, and a broad power of attorney that an heir gives to a sibling may extend to a takharuj of their share or its disposal, without its owner ever having seen a list of the estate's assets or a valuation of its real property. The safeguards the instructions provide before the court do not spare the heir from knowing what the estate consists of before signing the power of attorney.
Documents issued in the USA or Canada, including a power of attorney, need authentication before any Jordanian body accepts them, and the lawyer checks this against the instructions in force. The article Power of Attorney from the USA and Canada for Use in Jordan sets out the types of powers of attorney and how they are authenticated in the two countries.
That is why the lawyer starts from the purpose the estate actually needs at each stage and sets the scope of the power of attorney to match it: issuing the certificate and following up on transactions is one thing, and giving up or selling the share is another, left to a later decision by its owner once the estate's contents are clear.
Practical note: A registered takharuj may be subject to cancellation by mutual consent (Article 317), and the period that must pass after the death before a takharuj is registered is set by instructions issued under Article 319 that may be amended. The lawyer reviews the inheritance determination certificate and the entries for the estate's real property at the registration directorates before assessing whether any consideration offered is fair. Do not sign a power of attorney for takharuj, or a broad power of attorney for one of the heirs, before learning what the estate consists of and what it is worth, or consulting a specialist lawyer.
5. The Heir Who Does Not Hold Jordanian Nationality
Many heirs living in the USA and Canada hold only that country's nationality, such as children born and raised there. Article 133 of Real Estate Ownership Law No. 13 of 2019 allows a non-Jordanian to own real property in the Kingdom after obtaining permission to do so, and prohibits them from owning real property in border, archaeological and historic areas. However, Article 158 exempts from the requirement to obtain permission to own real property its ownership by transfer through inheritance to any of the owner's heirs. The transfer of the share to the heir by inheritance therefore does not depend on the ownership permission required of a non-Jordanian in other cases.
The exemption, however, stops at the transfer of the share by inheritance. What comes after it, such as the non-Jordanian heir disposing of their share or buying other heirs' shares, the property lying in an area where the law prohibits non-Jordanian ownership, or other approvals being required in their case, are matters the lawyer examines in light of the text in force and its amendments.
6. When the Estate Freezes Among the Heirs
Once the real property is transferred into the heirs' names, they become its co-owners, and the situation often stays as it is for years: one sibling lives in the family home, another wants to sell, and the heir abroad does not know what is happening to a property in which they own a share. What changes for that heir is that a partition file may proceed without anyone representing them, so a notice goes unanswered and a valuation of the shares settles without anyone objecting in time. The article Partition of Co-Owned Property under Jordanian Law sets out each co-owner's right to request partition, its methods and the co-owners' threshold. A single estate file is thus spread across the Sharia court, the registration directorate and the partition committee, and needs someone to follow it before each body at the right time.
7. Frequently Asked Questions
Can an heir living in the USA or Canada obtain the inheritance determination certificate without traveling to Jordan?
This is usually done through an agent in Jordan under a power of attorney issued abroad and authenticated under the instructions in force. The inheritance shares are determined by the Sharia court of the deceased's place of residence, or by the court where some of the heirs reside if the deceased's place of residence was outside the Kingdom. The scope of the power of attorney is what needs care before signing.
What is takharuj between heirs?
It is the heirs settling among themselves to remove some of them from the inheritance in return for something specified (Article 314). If one heir enters into takharuj with another, he is entitled to his share and takes his place in the estate (Article 315), and the takharuj is registered before the Sharia court.
Can a takharuj be reversed after it is registered?
Takharuj may be subject to cancellation by mutual consent (Article 317), so cancelling it by agreement requires the other party's consent. Otherwise, the route that remains is an action to correct or annul the takharuj before the Sharia court, which depends on a legal ground proven in it. The takharuj does not cover property of the deceased that comes to light after the contract and that the departing heir did not know of at the time (Article 316).
Can someone who holds only US or Canadian nationality inherit real property in Jordan?
Article 158 of the Real Estate Ownership Law exempts the ownership of real property by transfer through inheritance to any of the owner's heirs from the requirement to obtain permission to own real property that applies to non-Jordanians. Later disposal of the share, and the effect of the property's location, are matters the lawyer examines in each file.
Is a general power of attorney to one sibling enough to manage the estate?
A general power of attorney may be far broader than the estate needs, extending to the disposal of the share or a takharuj of it. The lawyer assesses the appropriate scope of the power of attorney according to the stage the file has reached.
Legal Consultation
An estate file in which some heirs live in the USA or Canada is among the most sensitive inheritance files: on the side of the heir living abroad, their share may slip out of their hands through a signature on a power of attorney or a takharuj given before learning what the estate consists of, and on the side of the heirs in Jordan, the estate may stay frozen because one co-owner is far away and neither responds nor appoints an agent. What is registered before the Sharia court or in the land register is hard to reverse once completed, and can usually only be remedied through a lawsuit. For legal consultation in inheritance cases, or to read about what changes in any Jordanian file when its owner lives abroad in the article A Lawyer in Jordan for Residents of the USA and Canada, you can contact Alabwini Law Firm & Legal Consultancy.
