Willa and Probate Proceedings
The Inheritance Act 1965-5725
The Inheritance Act 1965-5725 prescribes the manner in which a deceased’s estate is divided amongst his heirs. The Act prescribes detailed provisions regarding the manner of distribution amongst the beneficiaries of the estate, who is to replace them in the unfortunate event of their passing, the manner of managing the affairs of the estate and the appointment of an administrator or executor, etc.
In principle, under the Inheritance Act, the deceased’s spouse will be entitled to half of the estate, and the other half will be divided equally amongst the deceased’s children. There are exceptions relating to a residential apartment, a family vehicle, and chattels.
However, these arrangements are residual, that is to say, they apply only if the deceased left no will, or that his will is invalid.
But before we explain the procedure pertaining to probate orders, we shall first explain what types of wills exist at law.
Types of Wills
A person is entitled to leave instructions, while he is still alive, pertaining to how his estate should be divided after his death.
The sole possible legal way to leave instructions regarding the division of assets and an estate after one’s passing, is by way of a will.
Any instructions left by a person after his passing, that is not drafted as a will – is invalid and complying with its provisions is impossible.
To draft a valid will, the will must be drafted in one of the four possible ways in which a will may be drafted.
Aside from the forms prescribed at law, there is no other legal and binding way to leave a will.
The following are the four ways in which a will may be drafted, from the simplest to the rarest.
A hand-written will is the simplest, and enables any person to simply leave a document containing binding instructions to be carried out after his passing.
For a holographic will to be valid – the basic component necessary is that it is hand-written by the testator himself.
In addition to the hand writing, the documented must be signed and dated.
The advantage of the holographic will is the simplicity of its drafting, however, this is also its disadvantage, since in the event that probate is contested, there will be no party capable of testifying to the testator’s wishes, the circumstances of the drafting of the will, and the circumstances which may support its validity and existence.
A Witnessed Will
A witnessed will is the most common, and for some reason, this is the type of will which the majority of the population is familiar with and comes across. Similarly, the majority of lawyers tend to drafted witnessed wills, which act results in the fact that witnessed wills are the most common.
A witnessed will can be printed or hand-written by another, and it carries no mark from the testator other than his signature.
For the will to be valid, one must have two witnesses to the will, who will confirm, in the body of the will, that they witnessed it, and that the testator declared to them that it is his will.
Aside from witnesses to the will, the will must also bear a date, and it is preferable for the testator to sign all its pages, and not only the last page.
In any event in which there is a suspicion that probating such a will might be contested, whether in circumstances in which the testator is old or infirm, or whether in circumstances in which there is a suspicion that other arguments in opposition may be raised – it is also advisable to document the drafting of the will by video, which act can strengthen the will significantly, and minimise oppositions to it.
A Will Before Authority
A will before Authority is a will drafted in the presence of a judge, a dayan or a notary.
For such a will to be valid – it is sufficient to say the testamentary words in the presence of a judge, a dayan or a notary.
The judge, dayan or notary put the words to paper, and add their signature.
Wills before a judge or dayan are relatively rare, whereas wills before a notary are more frequent; however, in such circumstances, all the provisions applicable to notaries must be meticulously observed also when the will is drafted, such as the existence of a medical opinion in the event of a person who is immobile, etc.
Oral Will – Death-Bed Testament
An oral will is what it says it is – a will which a person says orally to two witnesses.
An oral will is a will that does not exist other than in the Israeli legal system, and it draws its source from Jewish Law, which recognises a “Death-Bed Testament”.
In principle, a person facing death, such as a person who is about to undergo a dangerous operation, or a person who is dying or who is about to face grave danger – is entitled to say to two people, whether jointly or separately, his wishes of what shall be done with his estate after his passing.
For such an oral will to be valid – the witnesses who heard the testator’s desires, must put the statements they heard to paper as a “memorandum”, and deposit the memorandum with the Registrar of Inheritances, as proximately as possible to the occurrence of the event.
An oral will is valid if the testator indeed can no longer draft another will within 30 days from the date it was made (such as if the testator passes away within 30 days).