No Access

The Singers were surprised when their lawyer advised them to go to their Israeli bank and sign a document called Arichut Yamim, which allows the surviving spouse to have access to some of the funds in joint bank accounts after the other spouse dies. They had assumed that when one of them passed away, the funds in their joint bank accounts would be automatically transferred to the survivor. (That’s usually the case in their native Canada, as well as the US and many other countries, where owners of jointly held banks accounts and other assets often have a right of survivorship.) To their shock, they found out that in Israel joint accounts are frozen when one co-holder dies, and funds can’t be released without a court order.

That can create an untenable situation for many Israeli couples who hold all of their money in joint bank accounts. “I had a few hundred shekels in cash and no way to access our money in the bank after my husband Josh died,” recalls Devori Simon,* whose family had made aliyah from New York a few years earlier. “How was I to buy groceries and pay bills? Thankfully, a relative loaned me money and I opened my own bank account right after shivah. If Josh and I had known about the Arichut Yamim document, I would have been able to use some of our funds while I waited to receive the rest after my husband’s estate was probated.”

Devori’s situation was complicated by the fact that Josh didn’t have a will. “When we were younger, we asked our rabbi whether we should have wills, and he told us, ‘You don’t need a will now, you’re young.’” Many years later, when Josh was in the advanced stage of illness, he told Devori he wanted to write a will, but she objected vehemently. “I was in denial, I guess. I thought having a will was acknowledging the fact that he might leave us.”

After he passed away, Devori was surprised to learn that, similar to the situation with her joint bank account, she wasn’t automatically entitled to their entire home as she would have been in New York, even though it was owned in both her and her husband’s names.

Where There’s a Will

Devori and Josh had purchased their New York home as a married couple, and their deed was worded in such a way that they each owned 100 percent of the property in their lifetimes, with title to the whole house automatically passing to the survivor when one of them died. The legal term for this ownership is called “tenancy by the entireties.” It applies only to real estate, and is utilized in the majority of states in the US.

Other states allow a deed to contain language giving the surviving spouse an automatic right of survivorship. Even in these states, married couples can’t make assumptions about what will happen to their home if one of them dies, since the wording of the deed and certain circumstances may mean that there’s another form of ownership, such as tenants in common, where each spouse is considered to own half of the real property. When one owner dies, the disposition of his or her half interest depends on the deceased person’s will, or on the state’s intestacy law if the person dies without a will.

When it comes to bank accounts, investments, and personal property, married people in the US also can’t assume that the survivor will inherit everything the deceased owned if there’s no will. Laws that deal with intestacy vary from state to state and a number of factors may affect how much the surviving spouse will be entitled to receive from the decedent’s assets, including: the size of the estate; whether the decedent has surviving children; whether all surviving children are also children of the surviving spouse; and whether the decedent is survived by one or both parents. So, in one state a widow will inherit everything her husband owned, while in another she’ll share the inheritance with children and sometimes with her husband’s parents.

In Israel, says Linda Reiss-Wolicki, if someone dies without a will, the surviving spouse only inherits everything if there are no children. “If there are children, the car and personal goods go to the surviving husband or wife,” she says. “Everything else held in the deceased’s name alone, plus his or her half of a jointly owned home, is divided between the spouse and the children.”

When a parent suddenly has to share ownership of a family home with adult children, there may be conflicts between them, and if the children are minors, their parent may need a court order to sell the house. These are some of the reasons Reiss-Wolicki, who practiced law in New York before making aliyah, recommends that all married couples have a will, no matter where they live.

Attorney Avery Einhorn, who is licensed in both California and Israel, adds that wills are important for several other reasons. They help couples with considerable assets to structure their estates to minimize estate and inheritance taxes, allow people to determine how their assets will be distributed among their heirs, and appoint an executor they trust to oversee the distributions. They also enable married people with children from earlier marriages to provide for an inheritance, and enable parents to name guardians for their minor children or disabled beneficiaries to manage the money they inherit. A testator (a person who dies with a will) can also exempt his executor and/or trustees from having to post a bond (usually a special type of insurance policy against dishonesty on the part of the fiduciary), the cost of which comes out of the estate.

Einhorn and Reiss-Wolicki agree that making a will doesn’t have to be a complicated or expensive process. Many attorneys charge modest fees for simple wills that designate who will receive the testator’s assets and name guardians and trustees for minor children. “But people don’t always have the money to go to a lawyer, or sometimes a person may want to quickly write a will before they travel or have a medical procedure,” notes Reiss-Wolicki. “There’s a way for them to prepare their own will.”

More than 27 US states and most Canadian provinces recognize holographic wills — a will that the testator writes entirely by hand and then dates and signs. Holographic wills are also recognized in Israel. Each jurisdiction has its own requirements as to whether a holographic will has to be signed by witnesses and the language it must contain to demonstrate the testator’s clear intent that the document is his last will and testament. One of the elderly clients of my own former New Jersey law firm wrote a brief but valid holographic will on the back of a used envelope when he was homebound during a blizzard. In contrast, another man carefully typed a revision to his will and then signed it, ignoring his lawyer’s instructions that the document had to be written entirely by hand. The will was not valid, and the man’s wish that his fiancי inherit his assets could not be honored by the probate court.

Addressing estate planning with “quick and cheap fixes” such as lifetime transfers of assets and/or accounts to children might assuage certain concerns such as achieving Medicaid eligibility and avoiding the need for court involvement following death.  But according to attorneys Baruch Greenwald and Hillel Weiss (founding members of Greenwald-Weiss Attorneys at Law), such fixes could lead to unintended consequences and yield costly results. These might include losing a “step-up” in basis upon death (a benefit that would insulate the surviving heirs from income tax liability upon the sale of assets following the parents’ death); creating friction among the children if the child who is the named owner decides not to share with the other siblings; or gift tax issues for the owner child if he/she transfers the inheritance among the siblings.

Greenwald and Weiss relate that clients will often ask why they cannot simplify their planning by implementing ownership changes such as retitling assets and/or accounts from their name(s) to the name(s) of one or more children. “What is worse,” they say, “is when a child consults with us following the death of a parent to inquire about whether there is any way to address the negative ramifications resulting from the quick, short-cut plan actually implemented by the parent. Unfortunately, generally the answer is that the issue cannot be resolved.”

Prepare in Advance

It isn’t enough to make a will and leave a list of assets so that family members can manage financially after their loved one’s death. They may also need the ability to take over many responsibilities if, chas v’shalom, an accident, illness, or disability temporarily or permanently keeps a spouse or parent from being able to manage their own affairs.

After her husband passed away, Lakewood octogenarian Sara Klein* decided to change her will and update two other important documents — a durable power of attorney and an advanced directive for healthy care together with a health care proxy. Sara wanted her oldest daughter, Rina Schwartz, to handle some of her banking and financial documents, and to take over all of her financial matters if she became incompetent. The durable power of attorney gave Rina that authority. It is used in the US, Canada, and many other countries. (Even with this document, Sara’s banks and stock broker asked her to sign their own power of attorney forms, a common practice in the US.) Without a durable power of attorney, Sara’s family would have had to ask the court to appoint a guardian for her and neither they nor their mother would be able to choose whom that would be.

Israeli law is slightly different. A general power of attorney is a document that allows a person to designate someone to act on their behalf, but it stops being effective if the person becomes mentally incompetent. As of 2018, Israelis can also sign a separate document called an enduring power of attorney, which doesn’t take effect until an individual is no longer capable of managing his affairs. It can only be prepared and executed under the supervision of an Israeli lawyer who was specially trained for this purpose. When Sara Klein’s’s mental competence was compromised by a chronic illness several years after her husband’s passing, her children knew who would make medical decisions for her and which rav she wanted them to consult for halachic questions.  That’s because Sara had signed an advance directive for health care (also known as a Living Will), in which she outlined her wishes about medical treatments and interventions if she was not capable of making her own decisions. She designated one of her children as her heath care proxy, and another as an alternate, to speak with her doctors and make the decisions she could no longer make for herself. When that time came, Sara’s children, as well as the rav they consulted, were guided by their mother’s expressed wishes about her treatment.

Today, many hospitals in the US and Canada request a copy of an advance directive when a patient is admitted. If the patient doesn’t have one, the hospital will provide a form to sign. Unfortunately, many of the provisions on these documents may conflict with halachah.

Mindful of this, and of the fact that a physician or hospital may value life differently than Jewish law does, Sara’s lawyer prepared her advance directive using suggested language provided by Agudath Israel, whose website offers sample directives based on the requirements of different US states and Canadian provinces. The Orthodox Union has also developed a similar halachic health care proxy form that is available on its website. In Israel, recent changes in the law now allow the use of advance directives and health care proxies, which have to comply with specific procedural requirements and are usually prepared by attorneys.

Don’t Forget to Update

Medical techniques change rapidly, and a procedure that’s considered experimental today may become routine a few months later. A 60-year-old who wants aggressive medical treatment may decide on a different approach when he’s nearing 90. He may also want to name a different person to make medical decisions for him. That’s why it’s important to update an advance directive from time to time. In fact, it’s a good idea to periodically review each of the documents mentioned in this article. Most attorneys recommend reviewing wills every few years, as well as after major life events such as the birth of children, marriage, divorce, or a spouse’s death.

The same holds true for life insurance policies and assets such as pension and retirement plans, where the proceeds automatically pass to a designated beneficiary rather than through a will or intestate proceeding. As their families grow or circumstances change, account owners may want to name different people to receive their money.

It’s also a good idea for people to verify that they’ve filled out all beneficiary designation forms, which a surprising number of people fail to do. They may assume their husband or wife will automatically receive their plan’s proceeds, but in the US that’s only true for 401(k)s and some pension plans, not IRAs. If a beneficiary isn’t named, the account has to go through probate and the recipients of the funds may lose valuable tax benefits.

Many attorneys wisely recommend that their clients choose a date on the calendar to annually update their list of assets and contact information. Another of my firm’s elderly clients made a habit of doing this every birthday, by neatly listing his bank accounts and investments on the back of a used envelope (this stationery seems to be popular among elderly men) that he dated and then added to a neatly rubber-banded stack in his desk. A glance at the annual inventories showed how much his assets had changed over time. Because he was tidy, and because his niece went through his desk carefully instead of randomly discarding what looked like old letters, the family didn’t have to engage in a lengthy search for his assets when he passed away.

A death or disability often leaves family members emotionally fragile and struggling to cope with their drastically changed life situation. One of the greatest gifts we can give them is access to the resources they need to pay bills, marshal assets, and attain a semblance of financial order without having to spend months searching for wills, documents, and information. We can also enable them to focus on helping us get the care we need, instead of arguing over decision-making authority or spending valuable time and money asking a court to appoint a guardian when an accident, illness, or age robs us of the ability to handle our own affairs. —

*Names and details have been changed.

**This article is not intended as legal advice. In addition, this article does not discuss the details of drafting a Last Will and Testament to conform to halachah. Readers should consult their own attorneys for more information.

Who inherits?

Aside from obvious practical issues, a frum Jew has a more overarching reason to have a proper will. If a person does not prepare a valid will according to secular law, his estate will be distributed according to applicable local law, in a manner completely inconsistent with halachah. This creates a very sensitive situation. While the rightful Torah heirs have a halachic claim against the estate, it will end up being distributed in accordance with local secular law. This may result in the legal heirs being in possession of assets that are not halachically theirs. If the legal heirs retain these assets, then as far as halachah is concerned, they are stealing from the true halachic heirs. And once in possession of the “inherited” assets, the legal heirs often find it difficult to part with their new acquisition. They may invent various justifications for keeping their legal inheritance, without realizing that they are guilty of halachic theft.

This can all be avoided with proper foresight and planning. There are also important halachic principles that govern how and to whom a person should distribute his assets. Halachic estate planning is not simply to ensure that one’s instructions will be followed. Rather, the goal is to create an estate plan that will provide for one’s family in a manner consistent with halachah.

It should be noted that according to some opinions, a legal will is not enforceable in halachah. While the vast majority of wills are honored by the halachic heirs without challenge, it is not unheard of for beneficiaries to challenge a will in beis din. This may happen either because there were tensions between the beneficiary and the testator, or between the halachic heirs and the legal beneficiaries. It may also occur out of simple desperation. A halachic heir who was relying on a larger share of the estate may feel compelled to fight for his halachic rights to maintain a certain lifestyle.

Regardless of the motivation, it is prudent to address these issues, and to structure one’s estate plan in a manner that will avoid any halachic questions. We are blessed nowadays to have seforim like Dor L’Dor from the Gaon Rav Feivel Cohen that have ready-made templates of halachic wills. It is critical that one structure his will in accordance with these documents.

(Originally featured in Mishpacha, Issue 758)