No one who likes to contemplate the path and the day of his death. That is human nature. Although, if we are already thinking about it, a person’s death has many, great and significant financial consequences (from the funeral to the division of the inheritance). If a person is interested in planning and arranging all the consequences that come in the event of his death, in advance, he has to draw up a Will.
It is important to note that there is no obligation to make a Will – we do not abandon the property that we have accumulated – the inheritance law ensures that all relatives of the deceased Will benefit from the inheritance money, but the law is general, and if you prefer to divide the accumulated property differently, more specifically, more personally and fairly for your family and your relatives – this can only be done by drawing up a Will.
What is a will? Why is it important to draw up a will? How and where to keep a will? How to hand in a will? All the important points about drawing up a will and how to leave the final document – which contains your entire life – can be found here or at the consultation meeting at our office which specializes in drawing up wills.
A will is a powerful tool that allows for continued control over the accumulated property even after death, regulates the division of property according to your wish, prevents unpleasant “inheritance wars” which cause many conflicts in families.
For example, in a regular family with children, when one of the parents passes away and doesn’t draw up a will with a probate lawyer, he leaves the family in a situation where all members of the family (spouse, parents, brothers and all his descendants) become heirs: Some of them prefer to take possession of the inheritance immediately, some with property or money, the remaining spouse usually wants to continue his/her normal life, without a sudden need to sell the apartment or some of the joint assets accumulated together with the deceased during their joint life. In order to avoid this situation, it is important to draw up a will with a lawyer, a will that will determine control mechanisms and various execution options, according to the logic and will of the testator.
Our office specializes in drawing up wills of all kinds, and formulating accurate and professional legal wills, legal support until the approval of the will by a notary. We support the heirs in all matters of inheritance, including applying for inheritance, handling objections, requests for probate orders, and estates.
A will vs. the inheritance law
The Inheritance Law – 1965 (“The Law”) states that every person has the right to order entirely different instructions in his will, which overpower the instructions of the law. In the event that a person has ordered his inheritance by professionally and legally drawing up a will with a probate lawyer, the prescribed arrangement in the inheritance law does not apply to that inheritance.
Any case in which a person prefers to exclude one of his family members or part of the inheritance from his spouse or to inherit his property to a third party who is not a relative or is an association, for example, is possible by the power of the principle of “freedom of order”.
It is also possible to stipulate certain conditions in the will and inherit only to those who meet those conditions!
It is always possible to change a will, to add to it, to detract from it, and even annul it entirely. The last will (chronologically) that will be found after the death of the testator is the obligatory one.
The law can be seen as an attempt by the legislator to determine a “general will arrangement,” which fits to the average person who did not prepare a will before his death. Most family disputes and inheritance wars can be prevented by drawing up a will with a probate lawyer who specializes in the inheritance law.
Types of wills in Israel
The Israeli law recognizes four types of wills:
A handwritten will, as the name implies, is a document, written by the hand of the testator, in which he instructs the manner in which his property is to be divided after his death. In most cases, the document will be examined by a lawyer or legal authorities only after his death, therefore, there may be a chance and risk of finding mistakes in the will that may lead to its cancellation. Such a will is not recommended for those who are not familiar with the instructions of the law in the present and it has to be valid in the test of time.
A will in the presence of witnesses
A written will that is validated with the signatures of two witnesses. A will of this kind is usually drawn up by a lawyer and is the most common type. Drawing up a will with the assistance of a professional and experienced lawyer, increases the level of security and the chances for the will to be valid after the death of the testator and withstand the test of time to achieve the deceased’s wishes to the fullest. Note that not every person over the age of 18 and who has not been declared disqualified by law, may serve as a witness and this is one of the many reasons why we recommend consulting a lawyer to draw up a will.
A will before an authority
A will before an authority is given verbally in the presence of one of the three persons defined in the inheritance law in section 22 (a judge, registrar, notary) who are authorized by the State of Israel to confirm that the will was drawn up in their presence and is legal.
If a person is on his deathbed, and, under these circumstances, wants to inherit to his heirs verbally, he must do so before two witnesses, after these two witnesses made a protocol close to the delivery of the will and deposited it with the registrar of inheritance affairs. A verbal will is valid for one month from the moment the threat to the life of the testator ends, assuming he is still alive.
Although the law in Israel sees the drawing up of a will as a personal act, Israeli law recognizes the desire and common interest of spouses in drawing up a parallel will by their spouse. In a mutual will, the spouse bequeaths his/her property to the other spouse so that the other spouse can bequeath his/her property to their joint children when the time comes. When the first spouse passes away, the remaining person must draw up a will that will bequeath the property to the others. This way, the will is mutual and can be drawn up in one or two separate documents signed by both spouses. A mutual will provides security and the standing in the test of time, alongside security against future unilateral changes.
Important to know!
In a mutual will, a spouse who wishes to change the will while his/her spouse is still alive, must obtain his/her consent. If one of the spouses passes away, but the inheritance has not yet been divided, in order to make changes in the mutual will, the remaining spouse must give up on his/her right on the inheritance prior to making the changes. If the inheritance has been divided, the spouse must return his/her share in order to be entitled to make changes in the will.
Examples of will mechanisms:
- Heir after heir
- Heir in place of an heir
- Heir on condition
- Heir on a postponed condition
A number of mechanisms may be included in the will, so that it fully and clearly reflects the will of the testator.
For example, in the heir after heir mechanism – the testator can decide who will the first to benefit from his inheritance until the end of his life, and who will benefit later from the inheritance of the testator.
The heir in place of an heir mechanism – allows replacing the main heir (if he passed away before the testator) with an alternative heir.
The testator can condition the receipt of the inheritance under conditions that he will determine – the heir on condition mechanism – restricts the right of the inheritance by the requirement to meet the conditions of the testator: If the heir fails to meet the conditions, he will lose his right to the inheritance.
The heir on a postponed condition mechanism allows postponing the heir’s inheritance right if he did not meet the conditions of the testator. As an example, this mechanism is very popular in cases where there are creditors to the heirs: the inheritance is given to the heir after the disposal of creditors.
In the drawing up of wills, a professional probate lawyer who specializes in the field, gives attention not only to the will of the testator, but also to his situation in a global perspective, thereby securing its fulfillment. The testator may stipulate, limit and transfer the rights on the inheritance as he sees fit and according to his logic, but we – the probate lawyers – ensure that the will remains valid even if any of the unsatisfied heirs, usually with the help of his own probate lawyer, claims the invalidity of the will for reasons that he deems necessary to mention (medical state or mental illness etc.).
If we recognize that one or more of the heirs may raise questions or arguments regarding the nature or validity of the will, we make sure that the will of the testator is fulfilled: the testator can be filmed signing and confirming the will, in special cases, we make sure that a medical opinion is provided while drawing up the will.
Why draw up a will?
The law doesn’t obligate drawing up a will, it is possible to say more than that – even if a will is not drawn up by a professional probate lawyer, the property is not abandoned, but will be divided according to the arrangement established in the inheritance law -1965, which determines the part of each of the heirs in the inheritance, however, it does not specifically regulate the property that every heir gets – too general. If the testator is interested in a precise division that he sees fit in the light of the circumstances of his specific case – it is advisable to draw up the will with a professional probate lawyer.
Who has to draw up a will – Example 1
If a person has a large number of real estate properties: plots, apartments, building rights, etc. – it is very recommended to draw up a will with a professional probate lawyer, otherwise, each of the heirs will receive a share in every asset, according to the inheritance law – this does not allow any of the heirs to make any changes or business deals in any of the assets, without the approval of the other owners of the asset (there isn’t always an approval of all heirs – a reason for inheritance wars) – and so with all inheritance assets. In addition, any transactions made between the heirs, will be taxed!
All this can be prevented by drawing up a will with a professional probate lawyer who specializes in the field. In such cases, we recommend dividing the real estate assets among the heirs, sell some of the assets and divide the received money, so that in total, each heir will receive an equal inheritance (in the monetary calculation) according to the logic of the testator. Of course, such a procedure does not happen in a single day: it requires the appointment of an estate manager, appraisal determination, and more. This provides a fair solution and prevents disputes between heirs.
Who has to draw up a will – Example 2
If a person wants to exclude (remove) one (or more) of his legal heirs – he must draw up a will.
The inheritance law is the mechanism set by the legislator to ensure and care for primary heirs – parents, siblings, spouses and children, however, because it is general, it usually does not help in cases where the testator is willing to make any change in favor/disadvantage of one of the legal heirs.
It is important to note that a will overrides the instructions of the Inheritance Law and replaces it by default. An orderly will, drawn up by a professional probate lawyer allows the testator to create a preferred arrangement according to his views and ensure its existence, even if it contradicts the inheritance law.
Who has to draw up a will – Example 3
Anyone who wishes to bequeath his property or part of it to a third party – an association or a person who is not a relative (for example) – can do so only by drawing up a will.
The Inheritance Law – the preset arrangement
According to section 10 of the inheritance Law, the heirs are:
- The spouse of the deceased
- The deceased’s children and their descendants
- His parents and their descendants and his parents’ parents and their descendants.
In the event that the deceased did not have first-degree relatives (as defined in the law) on the date of his death, or alternatively, the deceased did not leave a will to determine who would get his assets and property, the heir is the State of Israel.
As can be seen, if a person did not draw up a will, all his inheritance will be divided between the spouse, all the children, grandchildren, brothers, uncles and parents of the testator (if they are alive, that is). If the testator is interested in a different division than what the law states – he must draw up a will, it is recommended to do so with a professional probate lawyer who specializes in the field.
The inheritance right of the spouse
The inheritance law: In section 12, reference is made to the order of priorities that determines the division of inheritance in the following manner: the children of the deceased, parents and brothers of the deceased, and his parents’ parents.
Therefore, the spouse has the right according to the accepted standard that includes the movable property of the joint household.
In addition, the testator’s spouse is entitled to the rest of the inheritance in the following manner:
The first right of half of the inheritance assuming that the testator left behind children/grandchildren/parents.
If the testator leaves behind siblings or nephews or parents of parents, the spouse will be entitled to two-thirds.
The above applies only when in the testator’s death, his spouse was married to him for three years or more and lived with him in the joint apartment, in whole or in part. In the inheritance, the spouse will take possession of the apartment and two thirds of the remainder of the inheritance;
It should be noted that the law also relates to additional and/or special situations that define the priority in the division of property between different relatives, adopted relatives, alternative heirs, etc. However, the subject is too long to get into.
The right of inheritance of separated couples, couples in the process of divorce and common-law spouses
It is important to emphasize that even if reason and common sense say that in the process of divorce or separation, it is reasonable to assume that the deceased would not be interested in his spouse inheriting his property. As long as the legal proceeding of the divorce continues until the divorce is formally granted, the couple is not considered divorced and in the absence of a will, the formal spouse gets the inheritance.
And this, with special emphasis on the case of a common-law spouse who may, in the future, create a legal dispute regarding his/her status and right to the deceased’s inheritance.
In such cases, a will is much more important and it ensures that the deceased’s accumulated property reaches those he desires most.
Steps towards drawing up the will
The first step in drawing up the will is a detailed and accurate “Property List” of all the assets that are owned by the testator, including: real estate assets, car, accounts (banks, deposits, savings, insurances, etc.), also, valuable collections such as art objects or anything else valuable should be included.
Before meeting the lawyer, it is important to decide what each of the heirs inherits, the manner of the division, and/or any other division so that it will be possible to formulate and edit the will in a manner that will correctly reflect your will with all that is implied. It is important to emphasize to the probate lawyer whether there are issues that may be disputed in the desired will. These cases are common when the testator decided to leave his assets only to some of his relatives. The relatives who have been excluded from the will are most likely to try to argue that the will is illegal or was made when the testator was legally incompetent. In order to prevent this and assist the legal heirs, at the time of writing the will, the testator may and should provide the probate lawyer with a medical certificate, which testifies in favor of his qualification, as a supplement to his will.
The validity of a will
A will is valid indefinitely; assuming that no other (new) will has been made in its place chronologically. Unless, in the new will, the property has not been registered, then the previous will document will be examined regarding the missing property. If the new will turns out to be invalid/illegal (according to court’s decision) then the previous/last legal and valid will, will be used as the will for the division of the inheritance.
An exception is a verbal will, which is valid for up to one month from the date in which the threat to the life of the testator ends, assuming he is still alive.
Updating the will – when and why is it worthwhile
The dynamics of life and the changes that occur in it may create a situation in which a drawn up will is not updated and will become irrelevant or alternatively against the will of the deceased. Therefore, it is very advisable to update the will from time to time in accordance with changes in the life of the testator. Any change in the will means the drawing up and signing of a new will document and its legal deposit.
Common events that require drawing up a new will:
- Child birth
- Death of a relative
- Marriage and divorce
- The replacement of a spouse in the case of common-law spouses
- Medical condition of the testator or his heirs
- Addition/subtraction of assets
Safekeeping of the will
The will must be kept in a safe place that can be found by the relatives of the deceased when the time comes. This is in order to fulfill the will of the deceased, 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 his property will be divided according to the law.
The safest and most recommended way to keep the will safe is by depositing it with the registrar of inheritance affairs. This way the testator ensures that his requests will be fulfilled according to his will. In this case, also, the testator is not required to inform his relatives about the existence of a will, for in his death, they may apply to the registrar of inheritance affairs for a copy of the will, thereby denying the heirs the ability to produce a fake will.
Depositing a will is a quick and inexpensive process (105 ILS as of 05/2017), which can be done only by the testator by presenting ID.
In most cases, the application for an inheritance order or for the receiving of the inheritance execution order, ends with receiving the order. Yet, there are complex cases, for example by filing objections or claims that there is a defect in the will, and these claims get referred to the decision of the family court.
Note: A request for a discussion in the rabbinical court requires the written consent of all heirs by law.
In conclusion: drawing up a will is not a trivial matter, and it is defined as a legal act. For the will may have future legal consequences, which are sometimes incompatible with the will of the testator, and this is due to failures and/or flaws in its writing. Therefore, prior to drawing up a will, it is recommended to take advice from an expert probate lawyer, which specializes in inheritance and family law.
Important to know!
Finally, we will give you a few tips:
- At the time of writing the will, none of the heirs can be present or be an active participant in its writing, directly or indirectly.
- You must update the will from time to time so that it remains relevant and will withstand the test of time and the dynamic pace of life.
- If there is doubt as to the medical competence of the testator, it is recommended to equip the will with a medical certificate that attests to his medical condition and his ability to draw up the will. Such doubts will usually arise when the testator is old and/or ill.
- It is impossible to stipulate a will that cannot be changed. Any will can always be changed.
- According to the law, a person who wants to put conditions in the will, for example, rights in the inheritance only when the heir has reached a certain age, prevention of the sale of the apartment until the wedding and so on, it is recommended to check with an expert probate lawyer whether the conditions are reasonable and would they be legal when the time comes. If the conditions are reasonable, the conditioned inheritance rights of the heirs will be managed by the estate manager appointed by the registrar of inheritance affairs or the family courts until the conditions are fulfilled.
You are invited to contact our office with any question or legal need regarding wills, inheritance and estates, and you can also arrange a meeting with an expert probate lawyer.
*The above article is by no means a legal advice; any use of this information is solely under the reader’s responsibility.