Wills, Probate and Estates

Basic principles about wills and probate

Why should I draw up a will?

It is important to execute a will in Israel for the following reasons:

1. Many people are unaware of the distribution of one’s estate in Israel in the absence of leaving a will. In the absence of a will, many people are of the opinion that a spouse is entitled to receive the entire estate or that an estate is divided equally between a spouse and any surviving children. However, in accordance with Israeli law this is not the case. Therefore, it is important to leave a will to accurately reflect your wishes.
2. In some instances, there is a member of your family with special needs or a family member may have received an inter-vivos gift which you may wish to reflect in a will.
3. In the case of foreign residents, it is advisable for taxation and other reasons to seriously consider the option of leaving 2 wills- one for your assets in Israel only and another will for your assets outside of Israel. In such instance, co-ordination is necessary between your Israeli and your foreign lawyers to ensure that there are no contradictions between the two wills and that each will is entirely independent.
4. Drawing up a will with appropriate legal counsel will assist you to understand what your estate will comprise of: for example, issues relating to joint bank accounts, real estate registered in your spouse’s name only, insurance and pension policies, employees share options and so on.
5. Creation of trusts where appropriate for certain beneficiaries especially where there are children that are under 18, children with special needs, and beneficiaries with financial problems or “problematic” spouses; and
6. To bequeath a specific gift to an individual, charity or organizations of your choice.

What happens if I do not leave a will?

The Law of Succession 1965 of the State of Israel defines a statutory order of distribution and preference* between family members as detailed below:

1. If there is a surviving spouse and children or grandchildren or parents of the deceased, the spouse receives all the household chattels and the motor vehicle which is usually considered to be part of the common household in addition to half of the remaining estate. The other half of the estate is divided equally between the children, grandchildren or parents of the deceased*.
2. If there is a surviving spouse but no children, grandchildren or parents of the deceased that are alive, however there are siblings of the deceased, and/or their children or grandparents of the deceased that have survived the deceased, then the surviving spouse receives

(a) all the household chattels including the motor vehicle which is usually considered to be part of the common household, and

(b)  all the deceased’s rights in the residential apartment where the deceased and his/her spouse resided provided that the couple were married for a period of 3 years prior to the death of the deceased, and

(c) the remaining 2/3’s of the remainder of the deceased’s estate goes to the spouse.

The remaining 1/3 of the estate goes to the siblings of the deceased, their children or the deceased’s grandparents.

3. If there is a surviving spouse, but no children, grandchildren, parents or grandparents or siblings or children of siblings of the deceased, then the surviving spouse receives the entire estate.
4. In the absence of a spouse, the estate is divided evenly between the children and if one of the children has died before the death of the deceased, leaving children then those children will receive the share that his/her parents would have received.

1. In the absence of a spouse and children of the deceased, then the entire estate goes to the surviving parents of the deceased or the grandparents of the deceased.
2. In the absence of a spouse, children, parents, grandchildren, the entire estate goes to siblings or their children, and
3. In the absence of any family members the estate goes to the Public Custodian.

*(children have preference over parents and parents have preference over grandparents).

What makes a valid will?

In accordance with Israeli law there are 3 kinds of wills:

(a) A Dying Declaration

(b) a Handwritten Will; and

(c) a Witnessed Will

A Witnessed Will

A witnessed will is the most common form of will and this will be the focus of our discussion.

In order for a witnessed will to be valid, the will needs to contain the following provisions and conditions:

1. The will needs to be signed by the testator ( the person executing the will ) before 2 independent witnesses who are not beneficiaries of the will and who are over the age of 18;  and
2. The witnesses to the will need to confirm in writing that they were present at the same time that the testator signed the will and that the testator; declared that this was his/her last will;
3. The testator signed the will before both witnesses; and
4. The will must be dated.

A new amendment to the law provides the court with discretionary powers to grant validity to a will even if one or more of the above conditions is not fulfilled.

What are the provisions of a will?

Israeli law recognizes the fundamental principle of the freedom of the testator to distribute his estate as he/she sees fit and the freedom to change or to cancel his/her will at any time. For example, the testator can leave his/her entire estate to one of his children or he/she may decide to leave his/her estate to none of his family, or to bequeath his/her estate to a certain beneficiary subject to the fulfillment of certain conditions by the said beneficiary.

However, the freedom of the testator is subject to children and/or spouse’s statutory claim for maintenance.

Joint Will(s)- Beware!

Couples often draw up joint wills, that is, where the surviving spouse inherits the other’s estate and after the death of the couple the remainder is divided and distributed to the children of the couple. A recent amendment in the Israeli law puts certain limitations on the freedom of either spouse to cancel a joint will after it has been signed.

A common instruction in a joint will is that the surviving spouse inherits all and then after the demise of the surviving spouse the estate devolves upon the children. A popular misconception is that this instruction “guarantees” that the “couples” shared estate eventually is inherited by their children. This is not necessarily the case !

Important guidelines in preparing a will include:

1. Make your will precise and clear.
2. Use simple language that should not be open to interpretation.
3. It is important that you understand the terminology used in your will.
4. It is essential that your lawyer explain to you the meaning and significance of all that is written in your will.
5. Detail specific bequests such as certain items of jewelry, personal belongings or cash to specific people, charities and/or organizations if so desired.
6. Detail specific burial requests, for example, where and how you wish to be buried (Israel now recognizes both civil and religious cemeteries).
7. In the event of that you have children under the age of 18 years- one should consider whether a trust is appropriate and/or whether to request that a specific person be appointed as guardian in addition to the appointment of an executor.
8. Give special attention to children with handicaps or special needs.
9. Consider establishing a trust for beneficiaries who may have financial problems in order to prevent their creditors benefiting from your estate.
10. Consider if it is necessary to appoint an executor of the estate. It should be noted that in the past, it was common to appoint an executor to manage your estate. Today however, the Israeli courts will not automatically grant validity to a provision to appoint an executor unless it can be shown that the appointment is absolutely necessary, such as, if the deceased has an estate with numerous assets to be divided among numerous beneficiaries or if the estate includes assets overseas, minor children or persons with special needs and so on.

 

BASIC PRINCIPLES ABOUT PROBATE 

Are there death duties in Israel?

There are no death duties or estate taxes in Israel today.

However, this does not automatically mean that one should distribute his/her assets only by way of inheritance. In the event that the Testator owns more than one residential property, competent tax advice should be sought in order to establish whether one or more of these properties should be given as gifts to potential beneficiaries before death in order to save taxes when that beneficiary sells the residential property he/she inherited.

What is the probate procedure in Israel?

Any individual (including a creditor) who has an interest in the estate of the deceased is able to file an application with the Probate Registrar, usually in the jurisdiction where the assets of the estate are located or where the deceased resided. The application includes the filing of various documents such as an original death certificate, the original will where applicable, a power of attorney and so on.

If the application is technically in order the Register will then publish the request for probate/succession giving the public notice thereof and an opportunity to oppose the application.  A copy of the application is sent to the Public Custodian who is automatically the respondent to the application.

In the absence of any objections to the application, a succession/probate order will be granted within about 3-5 months from the date of the application.

All documents must be submitted in the Hebrew language or with notarized translations.

Why is it important to receive legal counsel in drawing up a will or filing a probate/succession application?

Competent legal counsel will ensure that both the technical and substantial aspects of a will are valid, that the will accurately reflect the wishes of the testator, and prevent a situation where a will may partially or entirely be declared as invalid. Furthermore, a properly drawn up will can avoid or shorten litigation in the event of a dispute. Likewise, a properly drawn up application for succession/probate will ensure efficient management and distribution of an estate to the intended beneficiaries.

Cohen Segelov & Co. Advocates and Notaries specialize in the preparation of wills and estate planning, legal advice concerning trusts, the application for succession/probate orders, appointment of executors and guardians, estate litigation including the representation of spouses and other beneficiaries, maintenance claims by a spouse or child of the deceased, coordinating with foreign executors, signing of documentation by foreign beneficiaries, and the notarizing and translating documents from the English into the Hebrew language for filing with the Probate Registry and the courts in Israel.

Many of our English-speaking clients of Cohen Segelov & Co. Advocates and Notaries have chosen our services as we can prepare wills in the English language and provide all services relating to probate proceedings and estate litigation in the English language.

Please don’t hesitate to contact us for further information.

Cohen Segelov & Co. Advocates and Notaries

Telephone: 972 3 613 4244

Fax: 972 3 6134245

Email: info@cslaw.co.il

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This article contains general information about legal matters.  The information is not advice, and should not be treated as such. You must not rely on the information contained in this article as an alternative to legal advice from us.  If you have any specific questions about any legal matter you should consult us directly. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information contained therein.