08/12/2022
Nobody likes to think about the day of their demise. This is part of human nature. Even though we may not be thinking about it yet, the financial consequences of a person's passing can be very significant. These include the funeral and division of the inheritance. In order to plan and organize for the eventuality of death, one must prepare a Will.
It is important to note that there is no requirement to make a will. We do not have to leave the property we have accumulated. The inheritance law ensures that all family members of the deceased will benefit from the inheritance money. However, the law is broad, and you can choose to divide the property differently to suit your needs and to be more fair to your family.
WHAT IS A WILL AND WHY IS IT SO IMPORTANT?
A will allows for the continued control over the accumulated wealth even after death. It regulates the division according to your wishes and prevents unfavorable “inheritance Wars” that can cause conflict in families.
If one parent dies without making a will, it leaves the rest of the family, including siblings, with no way to claim the inheritance. Some prefer to inherit immediately while others want to keep the property or money. The spouse who is still living wants to live a normal life and not have to sell their apartment or any of the assets they had accumulated with the deceased. To avoid this, it is essential to create a will with a lawyer. This will establish control mechanisms and other ex*****on options according to the logic of the testator.
HOW DOES A WILL DIFFER FROM THE INHERITANCE LAW?
The 1965 Inheritance Law (“The Law”) provides that each person can order completely different instructions in his will that override the Law. If a person has drafted a will together with a probate lawyer to order his inheritance, then the inheritance law's prescribed arrangements do not apply.
The principle of freedom of order can apply to any situation in which the testator wishes to exclude a part of his inheritance from any of his relatives, or spouse, or to transfer his assets to a third party, other than a relative or nonprofit.
You can also stipulate conditions in your will so that only those who fulfill those conditions inherit. This is called a conditional bequest.
You can always modify a will to add to or subtract from it, or even to annul it completely. The obligatory will is the last chronological will that is found after death.
We can view the law as an attempt to establish a “general will arrangement” that is acceptable for the average person who didn't prepare a will before his death. A probate lawyer who is experienced in inheritance law can help you avoid family disputes and inheritance conflicts.
TYPES AND USES OF WILLS IN ISRAEL:
There are four types of wills that Israeli law recognizes:
HANDWRITTEN WILL
As the name suggests, a handwritten will is a document written by the testator. It specifies how his property should be divided upon his death. A lawyer or other legal authorities will only review the document after the testator's death. So, mistakes may occur that could lead to the will's invalidation. We do not recommend this type of will for people who are not familiar with the Israeli inheritance laws as it needs to stand the test of time.
A WILL MADE IN THE PRESENCE OF WITNESSES
A written will that is witnessed and authenticated by two witnesses. This type of will is most commonly drawn up by a lawyer. A professional lawyer can help you create a will. This will increase the security of your will and ensure that it will be valid at the time of death. It is possible for anyone over 18 to serve as a witness, provided that they do not fall within one of the disqualifying clauses of the law.
A WILL IN FRONT OF AN AUTHORITY
A will before an authority must be made verbally in the presence of one of the three persons specified in section 22 of the Israeli Inheritance Law (a registrar, judge or notary) who will testify to the fact that the will was written in their presence.
VERBAL WILL
If someone is on his deathbed and wishes to leave his estate to his heirs, he must do it before two witnesses. After these witnesses have made a protocol and delivered the will, they must also deposit it with the Israeli Inheritance Registrar. A verbal will remains valid for one calendar month from its creation.
MUTUAL WILL
The Israeli law regards the creation of a will as a private act. However, Israeli law recognizes the common interest of spouses when they create a joint will. A mutual will is where one spouse leaves his/her assets to the other so that the other spouse can leave their property to their children. If the first spouse is no longer living, the other person must make a will to leave the property to the children. This will is mutual and can either be written in one or more separate documents. A mutual will offers security and protection against unilateral changes.
Under Israeli law, two wills that are a near facsimile of each other (near mirror image) are considered a mutual will. This is akin to a contract to enact a will. The ramifications of this are that if one spouse wishes to change their will BEFORE the other spouse has passed away, then they must notify the other spouse, thereby canceling the joint wills. If a spouse wishes to change their will AFTER the other spouse has passed away, they may do so only provided that they renounce their share of the inheritance of the spouse's property according to their will, or return their share of the estate (or the equivalent value) if they already inherited it.
The Inheritance Law (2005) takes the stance that a mutual will drafted by a couple is reliant on each other and that the will of each spouse is binding only if the other spouse's will is still valid and binding. This contrasts with the general proposition, according to which Israeli inheritance law does not endorse attempts to limit what a person can or cannot order from his estate. A joint will is unique insofar as it is always mutually drafted between two spouses who agree to be mutually bound by their respective testaments.
A mutual will can be canceled as long as both spouses are alive and one of them has given notice to the other of the desire to withdraw from the will (similar to a mutual contract). Once the will is canceled or altered, the other will is automatically null and void, thereby entitling the other spouse to make a new will. If the joint will is canceled or rendered void and one spouse passes away without making a new will, their share of the estate will be distributed according to the laws of intestate succession.
If the surviving spouse ignores the provisions of a mutual will (by altering the mutual will or writing a new testamentary provision in its place) and/or to transfer their inheritance to a third party not mentioned in the joint will, the direct heirs will have difficulty obtaining their inheritance legally without a court battle. A couple wishing to ensure that the intended heirs receive their inheritance after their death, regardless of the surviving spouse's decision to void the mutual will, may do so by restricting the surviving spouse's use of the deceased's assets. For this purpose, it's recommended to consult with an inheritance lawyer.
To sum up, we must ask if an undertaking in a mutual will according to which each testator promises not to change the instructions is binding? The Supreme Court has not completely resolved this controversial question. On the face of it, such an undertaking runs counter to the principle of a testator's freedom to bequeath property, and to change, cancel and make a fresh will, under the Inheritance Law of 1965.
TAKE NOTE!
If a spouse wishes to amend the mutual will, while the spouse is still living, he/she must get his/her consent. If one spouse dies, but the inheritance has not been divided, the other spouse must give up his/her inheritance rights to change the mutual will. In order to have the right to make changes to the will, the spouse must give back his/her share of the inheritance if it has been divided.
EXAMPLES FOR WILLS MECHANISMS:
* Heir after heir
* heir in place of an heir
* heir on a condition/postponed condition
The will may include several mechanisms to ensure that the testator's will is fully and accurately reflected.
In the heir-after-heir mechanism, for example, the testator can choose who will be the first beneficiary of his inheritance up to the end of his lifetime and who will receive the inheritance later.
The heir can replace an heir mechanism - this allows the replacement of the main heir (if he died before the testator) by an alternate heir.
Heir in place of an heir allows for the replacement of the primary heir (if he died before the testator) with an alternate heir.
An heir on a postponed condition mechanism permits the heir to postpone his inheritance right if he does not meet the conditions set by the testator. This is a popular mechanism in cases of creditors to the heirs. The inheritance is then given to the heir after creditors have been paid.
When drafting a will, our inheritance lawyers consider not only the wishes of the testator but also the entire circumstances of the individual situation from a global perspective. Although the testator can limit, transfer, or put conditions on the rights to inheritance as he sees fit, it is our job to ensure that the will is valid regardless of whether any of the unsatisfied inheritors claim the invalidity of the will.
We make sure the will is valid and clear, especially if we suspect that any of the heirs will raise questions or make a claim against the validity of the will. In such a case, we will film the testator signing and confirming the will. Sometimes, and if appropriate, we will request a medical opinion.
WHY MAKE A WILL?
There is certainly no legal requirement to make a will, and the property will still be divided regardless according to the arrangement in the 1965 inheritance law. This law is like a default and determines the distribution of the estate when there is no will. However, it does not specify the specific distribution of the estate, so the heirs collectively receive an indeterminate and undefined part of the estate. This leads to a tug-of-war match between the different parties and the different interests. For this reason, it is best to have a professional probate attorney draft the will if the testator is keen on an exact division based on the particular circumstances and the entirety of the estate of the testator, including per stirpes v. per capita.
WHO NEEDS TO MAKE A WILL? -EXAMPLE 1
Anyone that has significant assets, including real estate, plots, apartments and building rights, should create a will. Otherwise, each heir will get a share of every asset according to the Inheritance Law. This means that no one can change any assets or business deals without the approval of the other owners. (This is why there are inheritance wars.) Transactions between the heirs will also be subject to tax!
A professional probate lawyer can help you avoid this by drafting a will. As a general rule, we recommend dividing real estate assets between the heirs and selling some assets and finally dividing the money received so that each heir receives an equal inheritance (in monetary calculation), according to the logic of your testator. This procedure is not possible in one day. It requires an estate manager to be appointed, as well as the making of an appraisal. This ensures fairness and avoids any disputes between the heirs.
WHO NEEDS TO MAKE A WILL? -EXAMPLE 2
A will is required if a person wishes to remove (or exclude) any of his legal heirs.
The legislator has established the inheritance law to provide for the primary heirs, parents, siblings, and children. However, because it is so general, it rarely helps where the testator wishes to give affect to changes in favor/disadvantage of one of the legal heirs.
A will replaces and overrides the rules and instructions of the Israeli Inheritance law by default. A professionally drafted will by a probate lawyer allows the testator to make preferential arrangements reflecting his views and ideas, even if the instructions in the will conflict with the provisions in the Israeli Inheritance Law.
WHO NEEDS TO MAKE A WILL? -EXAMPLE 3
If you want to bequeath your property, or part of it, to a third party (such as an entity, nonprofit or an unrelated person), you can do so only by making a will.
THE INHERITANCE LAW - TE PRESET ARRANGEMENT
Section 10 of the inheritance law states that the heirs are:
* The spouse of the deceased
* Children and descendants of the deceased
* The parents of the deceased and their descendants, and his grandparents' and their descendants.
If the deceased didn't have any first-degree relatives as defined by the law on the date of his passing, or, if the deceased didn't leave a will to decide who would inherit his property and assets, the heir is the State of Israel.
If a person does not make a will, they will split his inheritance between his spouse and all the children, grandchildren, siblings, uncles, parents, and grandparents (if they're still alive). If the testator is interested in the distribution of his estate other than that provided by law, a will must be made. We recommend that this is done with the help of an experienced probate lawyer.
THE SPOUSE'S INHERITANCE RIGHT
Section 12 of the inheritance law refers to the order of precedence that determines the distribution of the estate as follows: the children of the deceased, the parents and siblings of the deceased, and his parent's parents.
The spouse is entitled to all movable property in the household. The spouse of the testator is entitled to the remainder of the inheritance in this manner:
The first right of half of the inheritance assuming that the testator left behind children/grandchildren/parents.
It entitled the spouse to two-thirds of the estate if the testator leaves behind siblings, nephews, or grandparents.
This applies only if the spouse of the testator was married for at least three years and shared the apartment with him. The spouse will inherit the apartment and two-thirds of the inheritance.
The law also applies to other and/or more specific situations as to the division of the property, such as adopted relatives or alternative heirs. The subject is too broad to cover here.
THE INHERITANCE RIGHTS OF COMMON-LAW SPOUSES OR COUPLES LIVING SEPARATELY OR GOING THROUGH DIVORCE
Notably, when a couple is going through a divorce or separation, it is reasonable to assume that the deceased would not want his spouse to inherit his property. The couple is considered to be divorcing as long as the legal proceedings are ensuing and until the divorce decree is final, with the effect that the law does not consider the couple as divorced. In the absence of a will, the formal spouse receives the inheritance.
This can have the unfortunate consequence of common-law spouses starting a legal dispute with the claim that their legal status gives them entitlement to the deceased's inheritance.
A will is even more important in such situations as it ensures that the deceased's assets are distributed to those who are most dear to him.
STEPS TO DRAFTING THE WILL
The first step in drawing up the will is to create a detailed list of all the assets owned by the testator, including: real estate, vehicles, accounts (banks, deposits, savings, insurances, etc.). Also, important items such as family heirlooms, art collections, coin collections and other valuable items should be included on this list.
Before meeting with a lawyer, it's a good idea to think about the general manner of the division of the assets, to which heirs and in what order. This will allow you, with the aid of your lawyer, to draft a will that gives definition to your wishes and desires. It is important to apprise the probate attorney of any issues that he should know that might cause a disgruntled heir to dispute the validity of the will. This type of situation normally arises when a testator leaves only a portion of his assets to his family. Family members excluded from the will will be most likely to claim that the will was illegal or drawn while the testator was mentally incapacitated. In order to prevent this situation from arising, it may be advisable for the testator to present a medical certificate to the probate lawyer at the time of preparing the will.
A WILL'S VALIDITY
A will is valid for life, provided that no new (or different) will has been created in its place. If the identification details of property do not appear in the new will, then the previous will document will be examined. If the court decides that the new will is invalid or illegal, the last valid will will be used to divide the inheritance.
A verbal will is an exception. It expires if the testator is still alive one month after the life-threatening condition has passed.
WHEN IS IT APPROPRIATE TO UPDATE THE WILL?
If a will is not updated periodically, it risks becoming irrelevant due to changing life circumstances. It makes sense to review the will every five to ten years to see if it needs to be modified to reflect changes in the life and circumstances of the testator. Amending a will requires the creation and signature of a new will and depositing it with the Israeli Inheritance Registrar.
A Few Examples of Life Altering Events that Require Drawing up a New Will:
* Birth of a child
* Death of a relative
* Divorce and marriage
* Dissolution of a Common-law Marriage
* Deteriorating health condition of the testator or his heirs
* Acquisition/Loss of assets
SAFEKEEPING THE WILL
It is important that the will is kept safe and easily accessible by the family members of the deceased. This is a necessary requirement since in the absence of a will or without the knowledge of its existence, it will not be possible to act according to the instructions of the testator and the property of the deceased will be divided under the law.
The best and most secure way to keep your will safe is to deposit it with the Israeli Inheritance Registrar. By doing this, the testator can ensure that his wishes will be fulfilled. Depositing the will cancels out the need for the testator to notify his family about the existence and contents of his will. In the event of his death, his relatives may apply for probate and request a copy of the will from the Israeli Inheritance Registrar. This will also prevent heirs from creating a fake will.
It is fairly inexpensive and easy to deposit a will. Only the testator can deposit the will. Even a lawyer may not deposit the will on behalf of the testator.
Usually, the application for an inheritance order or for the receiving of the inheritance order ends with the granting of probate. There are occasionally, however, complex cases where someone attacks the validity of the will. These claims are then directed to the family court.
Notice: A request to have matters heard in the rabbinical courts requires the written consent of all the heirs.
CONCLUSION:
Making a will is a legal act and not a trivial matter. If not executed properly, there can be real life implications that go against the will and desire of the testator. This is often because of errors that disqualify the will.
IT'S IMPORTANT TO KNOW!
We will end with a few tips.
* No heirs may be present or active participants in the will's preparation, directly or indirectly.
* To ensure that the will is current and relevant, it's a good idea periodically to update it.
* If there is any uncertainly about the medical competency of the testator, it's a good idea for the will to be accompanied by a medical certificate attesting to his health and ability to write the will. These doubts are most common when the testator becomes old or ill.
* There is no such thing as a will that can't be changed. Every will can be modified.
* A testator can make a conditional bequest. For example, the right to inherit only after an heir reaches a certain age or the prohibition of the sale of an apartment until the wedding. It is, however, best to consult a probate lawyer to ensure that the conditions are legal and reasonable. If the conditions are met, the estate administrator or an administrator appointed by the family court will administer the heir's conditional inheritance rights until the conditions are met.
