Why Leave A Will?
By Debbie Rosen-Solow, Adv
According to a recent study, less then 30% of Israelis leave a will. Presumably this is partially because most of us prefer to have a "you leave me alone, I'll leave you alone" relationship with the topic of death, and mainly because most people are not aware of the ramifications of not leaving a well planned and written will. Too often, people foolishly believe that they need great assets to warrant writing a will.
Deciding to write a will is one of the most important decisions a person might make in their life. When writing a will, a person can decide how they truly would like their property to be distributed after their demise (a decision that may be revised at any given moment according to the testator's wishes).
A well written will, drafted by a professional, not only portrays a person’s last wishes, but will also save the heirs a lot of money, stress and aggravation.
There are situations in which leaving a will is the only way to ensure that a person's assets and property are allocated according to the way he would have liked them to be distributed, taking into account taxation and legal implications.
Here are some examples that demonstrate why leaving a will is so important in many situations:
1. Bequeath of home to spouse
While it often comes as a surprise to people, according to Israeli law, if not otherwise specified in a will, when a married person with children dies, their home and property are divided equally, half bequeathed to their spouse and half to their children. As a result, widows and widowers must get the consent of the deceased’s descendents in order to continue living in the home that they have shared with the deceased. This situation causes unnecessary tension in many families at a time when family union is so important.
Writing a will allows a testator to explicitly bequeath their home and/or property to their spouse, while stipulating that when the spouse dies, the estate is bequeathed to the testator's children.
2. Special or sentimental property
When an inheritance includes belongings that cannot be divided, such as a special collection, articles of sentimental value, jewelry etc., items often have very subjective values. Without a will, one cannot allocate belongings to specific heirs, but rather the entire estate will be divided into equal parts and bequeathed according to the arrangement specified by law. By writing a will, one can bequeath specific articles to whomever one chooses.
3. Special family situations
If one has children or dependents with special needs, e.g. mentally challenged, handicapped or sick children, they might want to insure these children's future by setting up financial support for these children after their demise. Such arrangements can be specified in a will.
4. Children under the age of 18
In a well planed will, all possible situations that may arise in the future should be considered, even if they are unlikely to happen. If you have children under the age of 18 you might want to specify your wishes as to who would have custody of your children in case you and your child's other parent, should, god forbid, predecease your children before they reach age 18. There are situations in which several people may be fit to receive custody, yet the wishes of a parent specified in a will can tilt the court's decision to grant custody to a certain person.
5. Ownership of more than one property/store
Take, for example, a testator who owns a store and a home, and has two children. If no will is left, upon the testator’s death, the home & store will each be divided between the testators children (assuming there is no spouse) according to the arrangement specified by law.
If one of the testator’s children would like to continue to run the store, while the other child decides that he needs the money and therefore wants to cash in on his share in the store, the court will usually grant the child who wishes to split the joint ownership’s request and the store will be sold. The brother who wishes to run the store might choose to buy the other brother's share in the store, but this property transfer, aside from causing tension between the brothers, may also be subject to taxes by the Land Taxation Authorities.
A will specifying the division between the brothers, according to the testator’s wishes and the family's needs, may spare this family not just aggravation but also substantial expense, since the land transactions specified in a will would be tax free.
6. Instructions regarding estate
There are times when one would like to establish ongoing instructions as to what shall be done with their estate after their demise. For instance, how their estate should be handled, managed or invested, or who should inherit the estate in case the first heir is not capable of handling the estate in the manner the testator wishes. (This, for example, might be important in a family run business, when a management position is being transferred to an heir, or when the inheritance includes a substantial fortune). In a will one can state directions to ensure that their estate is handled in the manner they wish.
7. Keeping the inheritance in the family
Some people wish to ensure that in future generations their property will stay within their direct family. The wish to prevent offspring of any of their heirs that are not direct descendants (including the offspring of a spouse from a different/future marriage, or offspring of a son-in-law or daughter-in-law) can be specified in a will. Without a will, all assets that are inherited by family members, will be passed on to those family member’s offspring, when the time comes, whether these children are blood related to the original owner or not.
There are endless examples that demonstrate the crucial importance of having a will. There are also many instruments and techniques that may be used to ensure that one’s wishes and demands regarding their family situation and needs are addressed in their will.
Reviewing and updating existing wills should also be done from time to time. Any change in family status, such as, birth of child and/or change of domicile (making Aliyah) or place of assets, may have significant tax & legal implications on one's inheritance plan.
I would be glad to meet with you at your convenience, to explain the legal ramifications that might arise in your situation in the future, and tailor, if necessary, an inheritance arrangement to suit your needs.
Disclaimer: The information presented above is general information and should not be regarded as legal advice. For any specific advice, one should consult with an Attorney, as there may be particular considerations that are not mentioned here.