What You Need to Know About Wills

In our article “Dangerous Financial Relationships,” we told Avri’s story. His mother died, and the partner with whom she had lived since Avri’s father’s death remained in the luxurious cottage his parents built, refusing to let Avri and his siblings enter the family home.

Will our heirs face disastrous relationships after we are gone? Will dividing the estate draw them into disputes? Have we secured the financial future of those left behind? Many of us ask these complex questions, involving worry, fear and responsibility. Sometimes anxiety about the unknown diminishes our quality of life.

Our concerns are not only about property, but also caring for loved ones, particularly those growing older, ill or needing special care. Providing for their future becomes more important when we feel our heirs would be “lost” without active intervention. This is a sensitive subject. We all want to know that we will leave no disputes, unanswered questions or unresolved issues, but that every beneficiary will enjoy the assets accumulated exactly as we direct.

A will is a legal document expressing a person’s free wishes and determining who inherits their assets after death. Sometimes it includes funeral and mourning arrangements or personal messages, but these “ethical wills” have no legal force. Jewish religious law has special inheritance rules—“no acquisition after death,” so dispositions must be made during life—but that is a subject for another article.

Here is what you need to know about wills.

How Can a Will Be Made?

The legislature considered wills important and established rules making it easier to prepare one personally and at minimal cost.

Four Ways to Make a Will:

• Orally

An oral will is made by someone who feels close to death, before two witnesses who understand the testator’s language and expression. They must promptly record what was said and deposit it with the Inheritance Registrar. It is a final opportunity for someone near death to express their last wishes.

• In Writing

This offers the greatest assurance that the testator’s instructions will be fulfilled. Such a will must be entirely in the testator’s own handwriting and comply with the drafting rules explained below.

• Before Witnesses

This will is made before two witnesses who receive no benefit under it. They witness its execution, rather than its content.

• Before an Authority

A will made before an authorized representative, such as a rabbinical court, family court, Inheritance Registrar or notary.

We will explain drafting rules and important considerations below. First, it is useful to understand when making a will is especially important.

Situations Where a Will Is Particularly Recommended

As noted, we want property settled after our death without leaving uncertainty. Some situations are more sensitive or prone to problems and therefore particularly need arrangements. Today, “family” encompasses many complex configurations, some making estate planning especially important.

Spouses must consider that each person’s share of joint property may require legal interpretation. Assets registered in our name are not necessarily all ours to bequeath. Sometimes they also belong to our spouse, so we can bequeath only half.

Examples Where Making a Will Is Especially Important:

• Parents in shared-parenting arrangements
• Common-law partners
• Single-parent families
• Divorced and separated people
• Second marriages with children from previous relationships, with or without children of the current relationship
• Older childless couples unlikely to have children
• Property whose title registration remains unresolved
• Dividing an inheritance between natural heirs and people or organizations not provided for by the Inheritance Law
• Appointing successive heirs, specifying who succeeds an heir who dies
• Mutual wills between spouses with shared wishes concerning inheritance

Three Golden Rules for Drafting a Written Will

• Direction. Since the document expresses instructions for property after death, use clear directive language, not recommendations or requests.
• Clarity. Instructions should be clear and understandable to avoid interpretive errors or the need for interpretation at all. The testator’s intentions must emerge unequivocally from the text.
• Identification. Provide as many accurate identifying details as possible for both the people and assets mentioned.

Identify each person by relationship to the testator, name and identity number.

For assets, give block and parcel numbers for real estate, bank-account details, investment-portfolio details and so forth.

Important Considerations When Making a Will

• A Handwritten Will

Anyone choosing this form must write the entire document by hand and indicate that it is a will. Courts hold that it need not be as detailed as a lawyer-drafted will, but it must contain every essential element.

• Presence of Beneficiaries

No beneficiary may be present when the will is prepared or take any part in preparing it.

• Physical and Mental Health

If concerns exist about the testator’s physical, psychological or mental health, obtain a medical certificate confirming legal capacity to make the will and attach it.

• Conditions and Restrictions

A will may impose conditions and restrictions, but they must be logical, proportionate and, above all, lawful.

• A Beneficiary Lacking Legal Capacity

If a minor or someone otherwise legally incapacitated benefits, appointing an administrator for their estate share is recommended.

Implementing the Will

Depositing a will with the Inheritance Registrar is optional. It can now be deposited online. Alternatively, a lawyer may hold it, or it may be stored elsewhere in a location known to the testator’s relatives.

To implement it, apply to the Inheritance Registrar for a probate order. Notice is published and objections may be filed during a prescribed period. If none are submitted, the Registrar issues the order enabling implementation. If an objection is filed, proceedings are suspended until the court resolves it.

In Conclusion

If you are considering a will or need more information, we would be pleased to arrange a consultation. At A. Shiloh & Co., we can share our experience across wills and inheritance matters. Whatever the procedure, stage or side of the will you are on, we are here to advise and help protect your rights.