Why write a will in the first place?
Most of us tend to postpone preparing our estate plan again and again for two main reasons:
1. It seems far off and unurgent. We would like to believe that we're going to live happily and healthily till 120 (Amen to that!).
You may know that that's wishful thinking, and somewhat irresponsible, but as important as writing a will can be, at any given moment you have at least 20 more urgent things on your TO DO list, which always ends up with "Writing a Will" never making it to the top.
2. Naturally, we refrain from dealing with uneasy issues, especially death.
Why contemplate who should be the guardian of your little ones (in case of a tragedy) when you can have fun preparing the next birthday party instead? It's great to plan and focus on the positive aspects of life, but realize that the less fortunate scenarios won't take care of themselves.
What happens if you don't?
Some people will refrain from writing a will, reasoning that in any case the Law has clear directives how to split the assets when where is no will (legally phrased as "intestate"), and therefore they don't see a need to be proactive about it.
Well, "Après moi, le déluge" ('After me, the flood') may have been good for Louis the XV, but I’m not sure you would want to do that to your family.
There are two significant disadvantages in being passive and not writing a will:
Impractical Distribution
1. The result will be an impractical and complicated distribution that no one wants!
The default situation in Israel - as in many other western countries – is that if a person dies with no will, 50% of the estate goes to the spouse and 50% is divided between the children in equal shares.
This isn't practical and complicates the distribution of the estate because no one benefits from assets belonging simultaneously to the spouse and kids. Moreover, it creates a platform for a family dispute.
(Take an example of a married couple with four children: the spouse will end up owning 75% while each child will get only ~6%! Selling the house in that type of situation can be a nightmare in of itself, not to mention if some of the children are minors or opposed to the deal…).
The vast majority of people (yourselves included) will want ALL the estate to go to the spouse, and ONLY AFTERWARDS to the children in equal shares. But you need to write a will for that to be done!
Family Tumult
2. Not writing anything is a perfect recipe for family tumult.
Aristotle wisely said that "Nature abhors a vacuum", namely: If you don't actively specify your wishes, someone else (or more) is opt to guess what you would have wanted and start an argument.
Therefore, in order to make sure that your wishes for your family and assets will be implemented you need to take a proactive approach and write a will.
What's Halacha Got to Do With It?
That being said, a proper legal will is still not enough.
The halachic default, according to the Jewish Inheritance Law, is very different than the Israeli law and from the common distributions most people write in their wills.
While most people will want their spouse – husband or wife - to inherit fully, and their children – regardless of their gender or age – to inherit equally, the halachic default is very different.
For instance, according to the halachic default, the 1st born son (bechor) receives a double share compared to the other brothers, the wife wouldn't be able to inherit the husband (only vice versa) and daughters – in most cases - would not be entitled at all to a share of the estate![1]
Why isn't my Legal Will good enough?
There are three major problems with a legal will that hasn't been halachically validated:
1. Halachic Prohibition:
According to many Poskim[2], one who bequeaths against the law of the Torah is considered to be cancelling the Torah Inheritance Law ("מצוות דיני נחלות").
2. According to the Halacha, a standard legal will is not valid, since one cannot bequeath after he is dead. Monetary legal transactions have to be done while we're still alive.
3. Heavy risk of Family Dispute:
When a will isn't Halachically valid, there is a high probability that the Halachic heirs (i.e. the sons) will try to coerce the rest of the family to give them a larger piece of the estate, or even worse: try to extort money according to the halchic default via a Din Torah. This can tear a family to pieces, G-d forbid!
How do we bridge the gap?
There are two Halachic Solutions, usually included in one halachic supplement (or in the will itself), which can validate the legal will from a halachic perspective too:
1. Gift:
Your assets are defined as given to the beneficiaries of your will as a gift while you're still alive (thus avoiding the halachic default which only kicks in at the time of ones' demise). Although the practical realization of this gift is only possible when one passes away, formally speaking the gift was done during the person's lifetime.
That being said, the above solution applies only to assets that are owned at the time of the signing of the will and not to ones that will be only purchased in the future, since halachically one cannot give as a gift assets that he does not own yet ("אין אדם מקנה דבר שלא בא לעולם").
To solve this issue, another halachic instrument is used called, "Shtar Chatzi Zachar"[3].
2. Shatar Chatzi Zachar – Conditional Debt.
The halachic supplement will include a large conditional debt to the non-halachic beneficiaries of your will (i.e. wife and daughters). This debt would kick in only if the Halachic heirs (i.e. sons) would challenge the will. If that were to happen they would lose their whole share in the estate, and that way it doesn't pay them to fight.
The double advantage of this clause (in addition to the aforementioned gift clause) is that it halachically covers future assets too while creating a disincentive for the Halachic heirs to even think about disputing the legal will.
[1] Understanding the philosophical logic and reasoning behind the Torah's Laws of Inheritance is out of the scope of this article, who's main purpose is to present the practical aspects of Halachic Estate Planning.
[2] see Sefer HaChinuch, Mitzva 400
[3] The name of which originates in times in which it was customary to give each daughter a share equaling half of that which the sons were receiving ("חצי – זכר").
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