What is a Will or Testament?1
A Will is just what its name implies, the request of a person (who asks, in the expectation that their wishes will be honored) to those remaining after him, that they will fulfill his last request. Will!
From the legal point of view, it is the request of a person to divide their assets according to their wishes, whatever they are, on condition that the Will is a proper legal instrument.
Why Do I Need a Will?
The truth is simple:
IF you don’t plan to ever leave this world,
IF you don`t want anything to remain for anyone,
IF you don`t care at all what happens after you reach 120,
Then you do not need a Will!
Most people think otherwise and consider what will happen after age 120, most people want to distribute their assets in a particular way and most of us have things to divide.
Israeli law is different in meaning from Brazilian law. In Israel, for instance, there is no obligation to “leave something” to each one of your children. The testator may leave all their assets to only one of their children or to a neighbor or donate all their assets to any institution, without bequeathing anything to their children.
It is not for nothing that I used the term “their”, since a person may not bequeath anything other than their own property and not that of another. As a result, a spouse can leave only their half of the assets, since the other half is the property of their spouse.
For example: John Doe is married and has, for the sake of argument, two flats of equal value. He can only bequeath one of the flats and not both of them, because his property was shared with his wife in life, as well. 2
Freedom to Bequeath at the Discretion of the Individual/Testator
In this age law that respects the rights of man and his freedom, property is a basic and protected right, and therefore a person has the right to bequeath their property after death and divide the inheritance3 as they see fit, as long as it meets the legal requirements4.
What are the Types of Wills?
It can be said that there are four types of Wills, and they are:
- Written5
- Before an authority6
- Before witnesses7
- Oral or (in the Talmudic concept) “On the death bed”8
Wills Before Witnesses
This is the best type of Will and is usually prepared by an attorney who knows the laws well, so that the Will is prepared in accordance with the rules defined by law. Its importance lies in the fact that it is difficult to contest/annul a written Will prepared by an attorney and before witnesses, although in the past, the court has had to deal with this type of contest.
What to Do when there is No Will
If a Will was not made in life and/or on the death bed (see Endnote 8), then the inheritance laws of the State of Israel are in effect for the their property (inheritance).
Most of us, if not all of us, have heirs and they will inherit according to the order of priority determined by law and receive their share or, at times, even the entire inheritance.
In any event, it will be necessary to meet all the conditions determined by law, and the division of property in the case of dispute, can take many years.
Potential Problems if the Deceased had no Will
Remember that the larger the family is, the greater and more varied the assets are (such as stocks, copyrights, etc.) so is the division harder, and there are often battles between the heirs that empty the inheritance of funds.
The division of the assets can turn into an acute and painful problem that sometimes divides families forever.
When an asset cannot be divided, or is difficult to divide, the heirs “go to war” which usually leaves the “attorneys richer and the inheritance fund emptier” and not because of the lawyer, but because of the emotions that hinder the ability to reach compromise – sometimes painful compromise.
More than once we have found families divided because of the division of a flat where each of the parties “stands on principle” and is not willing to reach a settlement. In the end, in such cases, the court may have no choice but to order the sale of the asset and the division of the proceeds, something that usually causes financial harm and psychological distress to all parties.
Can a Will be Changed Once it’s been Made?
Certainly! Any “Will" can be changed and the last Will (the latest date) is the determining one.
What is a Probate Order?
This is a court order (subsequent to a request for a probate order) that dictates the execution of the Will. Without this order, there is no way to execute the Will, but the process is generally inexpensive and quick.
Does Making a Will Cost Anything?
Not necessarily. A Will written before witnesses is liable to a lawyer’s fee depending on how complex the Will and the division of property are.
Other types of Wills (not always recommended), do not necessarily involve payment. There is no fixed fee for preparing a Will.
It is important to emphasize that the lawyer preparing the Will must be fluent in the language that the testator understands. If the testator is not a Hebrew-speaker and is fluent only in Portuguese, then the attorney must also be fluent in that language so that he can be sure that the person signing the Will understands the significance of his signature on the document.
The Will as a Charm, a Sign of a Person’s Long Life
Our sages of blessed memory have said that preparing a Will is a blessing for a long life and not a reason to fear the evil eye.
With wishes for a long and happy life until 120,
Tzvi Szajnbrum, Attorney at Law
1 In English, the pair of words Will and testament as if they were synonymous, which they are not.
2 There is no room here for details of exceptions, such as prenuptial agreements, etc.
3 After a person’s death, their assets are called “the inheritance”.
4 Inheritance Regulations, 1998 and the Inheritance Law (Amendment No. 7), 1998.
5 This is a written Will. This is a type of Will that can be repeatedly reviewed, and generally mistakes can be found that can cause the Will to be annulled, therefore it is not recommended for use, even though its preparation does not involve payment.
6 This is a Will made before a judge, notary, etc. See Clause 22 of the Inheritance Law.
7 The most frequently used and “best” kind of Will is a Will before witnesses.
8 This is a Will that a person prepares when they feel that they are dying. This type of Will is valid for up to one month after it is made if the person is still alive.