By: Isaac Yedid, Esq. & Raymond Zeitoune, Esq.
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 1 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.
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.
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1 If a man has no sons, the order of succession is as follows: (i) daughters, (ii) parents, (iii), brothers (iv) uncles, and (v) next of kin.
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: Joseph and Sara have been happily married for eight years. Although Joseph 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, Joseph 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 Joseph is cautiously driving home, his car is struck by a drunk driver travelling at 95 mph. Joseph 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 Joseph’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: Jacob and Rachel have been happily married for 52 years. They have two sons and one daughter, as well as many grandchildren and great grandchildren. Jacob’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. Jacob and Rachel decide that they would like to give Leah something special. Jacob 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, Jacob’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.
The attorneys in the Trusts & Estates Practice Group at Yedid & Zeitoune, PLLC have consulted with many Orthodox rabbis 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. May we all merit living long, healthy and happy lives – amen.
The attorneys in the Corporate Practice Group and the Tax Practice Group at Yedid & Zeitoune have over a combined 20 years of legal experience and are ready to assist you with all your corporate/tax needs.
Isaac Yedid, Esq. and Raymond Zeitoune, Esq.
Yedid & Zeitoune, PLLC
1172 Coney Island Avenue Brooklyn, New York 11230
Phone: (347) 461-9800 Fax: (718) 421-1695 Email: [email protected]
NYC Office – By Appointment Only:
152 Madison Avenue, Suite 1105 New York, New York 10016
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One Response
In order to give the widow and daughers a lien (first payment), one needs the approval of all the other creditors. No American bank (credit card company, etc.) would ever agree that if the man dies, that the widow and daughters get paid in full before the credit card balance gets paid.
In addition, by halacha sons could be required to support the widow, and that’ difficult to duplicate under American law (a trust perhaps, or granting the widow a life estate?).
Of course, if a man dies leaving an estate the less than the kesubah, there is no problem. His will only needs to say “All to wife”. Unless one considers government benefits such as social security or pensions to be “assets” (they are non-assignable, and the government does not consider them an asset of the estate), most people die insolvent (meaning the wife’s claim exceeds the value of the estate).