Why It’s Important to Leave a Will

Why It’s Important to Leave a Will

“Death is not the end. There remains the litigation over the estate.” Ambrose Bierce

I know nobody wants to think about death, especially not their own, but thinking about what should happen to your assets after you die can save your loved ones a lot of pain and trouble after you’re gone.

While you may have already set up a will in a different country, Israeli inheritance laws might differ from what you have arranged. In Switzerland, for example, part of the inheritance has to be left to specific heirs – namely children. That’s not the case in Israel, as you’ll see below. 

How the Israeli law distributes assets

The law in Israel for the distribution of assets of those who die intestate (without a will) are clear and are divided into a hierarchy of relations: 1) they are distributed equally between the person’s spouse and their children; 2) If there is no spouse or children, they are distributed equally between parents and siblings; and so the law continues.

So, for example, this means that if a married person with two children dies without leaving a will, their spouse will receive half the estate and the children will each receive a share of the other half of the estate. In such a case, none of the estate will go to any other heirs.

How does this work in reality? If a couple jointly owns an apartment and one spouse passes away, the half of the apartment that “belonged” to the deceased spouse will be split between the spouse – who gets a quarter – and the children, who each receive an eighth of the apartment (a quarter + an eighth + an eighth = a half).

Leaving a will

That’s distribution according to the law, but by leaving behind a will, a person has the power to give specific instructions about what to do with their assets, or even with specific items such as jewelry or a car. This means they can give their estate to a local cat charity, donate it all to the JNF, split it evenly between their kids or decide to favor one child over another. 

There are almost no limitations in what, who and how to distribute assets in a will. Unless one gives illegal instructions in the will, or the will was found to be illegal (if a person is coerced into writing the will or some of the clauses, or if they are not mentaly capable of leaving a will, to name just a couple of examples) the will takes precedence and the law/courts will try to uphold their dying person’s requests. 

Mutual will

One of the (many) important elements to consider when making a will is what happens not after you die, but after the person to whom you have bequeathed your estate dies. For example, often spouses or relatives want to leave their assets to each other, and after both of them die, leave it to someone else. However, they also want to ensure the remaining spouse (or relative) will not change these conditions after their death. 

Israeli law has a safeguard in place for such a situation – a “Mutual Will.”. According to the law, a mutual will can only be changed if all parties are still alive. This means that if the remaining partner would like to change the will, they must give up all their rights according to the will, which de facto prevents them from altering the will.

So, what does this mean in plain English?

Take, for example, a couple that has a mutual will that states that when one of them passes away, the remaining spouse will receive all their assets and once both of them die, everything goes to their children.

Should one spouse pass away and the remaining spouse remarry, the remaining spouse cannot change the will and leave the assets to the new spouse. The inheritance has to be distributed to the children – as per the original mutual will. 

If the remaining spouse tries to change the will, and leave it to the new spouse, they lose all their rights and the children can request to receive all the assets while their parent is still alive.

For parents of children who are minors (under 18 in Israel)

While everyone should have a will as suggested above, it is vital for anyone who has children under 18 to have a plan in place should something, G-d forbid, happen to them. The will, in this case, will contain information about who should have custody of any children and instructions relating to distribution of assets to their children when they turn 18 (or older), and who will manage their assets until then. 

One important thing to point out (which shows the flexibility of wills once more) is that there is no issue in splitting between custody and asset management, for example. This means that there could be someone responsible for custody of the children and a separate person for asset management. This is a common split, but it could effectively be split or divided however one sees fit.

If there is no will, a court-appointed guardian would be appointed. In such an instance, the court awards guardianship to whoever is the most appropriate given the circumstances with preference to family members (siblings, grandparents, aunt, uncle, step-mother or step-father).

What makes a will valid? 

Now you know why you should have a will, and what’s usually contained in it, but what makes it legally valid?

A will can be written, dictated, recorded or given orally. But for it to be legally binding, it needs legally valid witnesses who have to sign an affidavit (the lawyer takes care of this) and sign a testimony that the person writing the will was in a coherent state of mind, understands, and is not coerced into the terms of the will, at the time the person left the will. 

A will can also be changed, altered or amended however and whenever the testator wants – as long as it follows the rules above. The binding will is then the latest valid will. 

To execute a will, you must go through the process of a probate. Read all about Probates here (link to another article)

General Recommendations

  • Leave a will in each country where your assets exist. Many people who live or have lived in different places write specific wills for specific locations. This could help in case of contradicting laws in different countries.
  • It is highly recommended for a lawyer to explain the law in the specific countries, draft and explain the will to you, and not just write a will by yourself. Writing a will that does not follow the laws’ specific instructions could result in an invalid will or could cause the order of probate to be longer, complicated and costly.
  • Check how the laws of the country in which you live relate to the will you have left and/or how the laws of your domicile affect your assets in different countries. It is also important to learn and understand the process of legalizing your will (the process of a Probate).
  • It is very important to be as open and forthcoming with your lawyer regarding all the information so your lawyer can give you full and all-encompassing legal advice.
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