Do I Need a Will?

(Friday, December 7th, 2012)

What is a Will?

A Will is a legal document that provides specific instructions as to how a person’s assets should be distributed upon his or her death. This article will touch on a few reasons why it is important for everyone, young or old, wealthy or not, to write a Will.

Protect Your Family

Many young couples mistakenly believe that only elderly or very wealthy people should write a Will. When speaking with young parents in their 20’s and 30’s about writing a Will, the usual responses are, “Why do I need a Will? I don’t own any property!” or “I’m not a millionaire, what do I need to worry about?” Unfortunately, many couples view their greatest asset as their home or the “green paper” in their pockets. The truth of the matter is that a couple’s greatest assets are their children.

Example: Yossi and Sara have been happily married for eight years. Although Yossi and Sara don’t own any property, they have three wonderful children and both work very hard to provide for their children. One Saturday night, Yossi and Sara decide to hire a babysitter and enjoy a “date night.” They enjoy a lovely dinner at one of the city’s most exquisite restaurants. However, things begin to take a turn for the worse. While Yossi is cautiously driving home, his car is struck by a drunk driver travelling at 95 mph. Yossi and Sara are rushed from the scene to the nearest hospital, but unfortunately, they both don’t survive the night.

In a Will, you may choose who you would like to be the legal guardian of your children in the event of your untimely death. Young parents assume that there is no need for this type of legal planning because there is an obvious choice for an alternative legal guardian for their children, and the courts will clearly see things that way. However, one of the most important lessons shared by estate planning attorneys is the fact that family relationships are often strained in the aftermath of a death. While it may not seem like a possibility now, in the aftermath of your death, different family members may begin arguing over the guardianship of your children. Taking away these uncertainties today should be a high priority for all parents.

Every couple with young children (especially those that travel together often) should consider writing a Will. Without properly drafted Wills naming the legal guardians of their children, the fate of Yossi’s and Sara’s three children rests in the hands of the courts which inevitably may cause the surviving family members (i.e. the grandparents) to argue as to who is better equipped to act as the legal guardian for the three orphaned children.

Avoid Potential Family Disputes

Often times, elderly couples need to be cared for, and the people in the best position to care for them are their children. Unfortunately, due to family responsibilities, business matters or other

considerations, not all of an elderly couple’s children are always around to take on their fair share of the responsibilities, and some children may make more efforts than others. Elderly couples may desire to reward their “golden child” with a larger inheritance.

Example: Avraham and Rachel have been happily married for 52 years. They have two sons and one daughter, as well as many grandchildren and great grandchildren. Avraham’s and Rachel’s sons run successful businesses and are constantly travelling out of town. However, their daughter, Leah, diligently takes care of her parents. She comes by her parents’ house every day, helps them with errands, drives them to doctors’ appointments and handles all of their paperwork. Avraham and Rachel decide that they would like to give Leah something special. Avraham tells Leah, “Your mother and I have decided that after we’ve passed on, we would like you and your brothers to split our assets equally, but we want to give our home only to you as a token of our appreciation for all the care that you’ve given us.”

Without properly drafted Wills that leave their house to Leah, Avraham’s and Rachel’s sons have an automatic legal write to share in their parents’ house, which may cause future arguments between Leah and her brothers. The last thing parents want after their death is to have their children argue over monetary possessions. The smart thing to do is to have a Will that specifies how you want your assets divided upon your death.

Halachic Estate Planning

In today’s society, the monetary laws of the Torah have unfortunately been largely disregarded even within the Orthodox community, mostly due to a lack of education and understanding of those laws. There is one area of monetary law which affects everyone – the laws of yerushah (inheritance). According to the Torah’s laws of inheritance, a man’s sons are his sole heirs, each inheriting an equal share, except that when the oldest child is a son, the first born son would inherit a double share (as compared to his brothers). Jewish law provides for the man’s widow and unmarried daughters by giving them a lien against the man’s estate for their support until his widow remarries and until all his daughters get married, but the man’s widow and daughters do not inherit any property outright.

In contrast, under New York law, if no Will was ever written, a deceased person’s surviving spouse and children (including daughters) all have a right to share in the deceased person’s estate. If a Will was written, the deceased person’s assets would be distributed to whoever was named in the deceased person’s Will. However, a secular non-halachic Will has no halachic validity, which poses a real problem for an observant Jew. A secular non-halachic Will takes effect only after a person’s death, at which time the deceased person’s halachic heirs have automatically inherited the deceased’s assets, and the deceased person no longer has any halachic authority to transfer such possessions because those possessions no longer belong to the deceased person, but rather to his halachic heirs.

Furthermore, a person has no halachic right to accept assets inherited from an estate where the deceased person had no Will or had only a secular non-halachic Will because it is almost certain

that there will be instances of gezel (theft) under Jewish law. Therefore, it is important for every Jewish person to not only write a Will but to make sure the Will conforms with Jewish law, making sure that the very last thing a person does in this world does not violate the Torah’s laws of yerushah.

The attorneys at Yedid & Zeitoune, PLLC have consulted with many Orthodox rabbis in our community and have obtained a p’sak halachah as to the proper way to write a halachic Will in order to avoid the halachic problems mentioned above.

This article only mentions a few reasons why everyone needs to have a Will. Future articles will discuss how a Will also promotes charitable planning, avoids/minimizes estate taxes, and helps families financially plan for future generations. May we all merit to live long, healthy and happy lives – amen.

Isaac Yedid and Raymond Zeitoune are Partners at Yedid & Zeitoune, PLLC.

Visit them on the web: CLICK HERE

2 Comments

  1. akuperma says:

    One should better state conditions where a will is not necessary (and where probate is not necessary). In truth, most middle class (or lower) families probably don’t need a will and they would be better off using the lawyer’s money to pay tuition.

    The leading condition affecting the need for a will is marriage. Most married couples have all assets in joint accounts. Those are unaffected by a will since they have right of survivorship. It is actually difficult for married couple to buy a house other than jointly. Social security and pensions got to spouses regardless of a will. If all the financial assets are joint, there will probably be no need to bother with a will, or probate. Only if you want property to pass to children (good if they are adults, a very bad idea if they aren’t), or to other persons, do you need a will. Remember that even with a will, debts get paid out of the estate (unlike Jewish law, where the wife and daughters get paid before creditors).

    The next factor is poverty. In fact, most frum families have very few net assets. It is unlikely their net worth is enough to cover the kesubah (unless you hold that government benefits or life insurance count as property of the husband’s estate and therefore go to the kesubah – which is a dubious argument). Leaving a legacy to child is meaningless if the guardian will need to use the legacy for living expenses, and leaving a legacy to anyone is worthless if there are creditors

    To make a will conform by halacha, it would be necessary to set up a vehicle so anyone extending credit (including banks, credit card companies, etc.), agrees that in event of death, the wife and daughters get paid before they do. This could be done, but the result would be probably having to go through life without credit.
    You also have to duplicate the fact that by halacha the sons inherited not only the assets, but a requirement to care for their widowed mother (you could write a will like that, but it’s tricky).

    In truth, most frum families should have all the assets help jointly, should try to get some insurance or entitlement claims (i.e. qualify for social security’s survivor benefits) – and realize that they probably will have an insolvent estate, both by halacha and American law. If someone is rich enough that isn’t the case, or is childless or unmarried – then worry about wills.

  2. akuperma says:

    Guaqrdianship of minor childrens is a legitimate issue, particularly if you have non-frum relatives (if all your relatives are frum, they can go to their Beis Din and then enter the agreement in the goyish court).

Leave a Reply

You must be logged in to post a comment.

Subscribe to RSS Feed For This Article