Israeli Lawyer & Notary, Professional Translations | Simon M. Jackson

Simon M. Jackson
Notary & Advocate (Israel)
Solicitor of the Supreme Court of England & Wales (UK)
Professional Translator (Hebrew-English, English-Hebrew languages)

Cellular: 0545-742-374
Landline/Fax: 0737-40-60-40
Skype: simonjackson
E-mail: [email protected]

Webpage: www.jacksonadvocates.net
Facebook: https://www.facebook.com/israelnotary
Linkedin: https://il.linkedin.com/in/simon-jackson-4b1b49 

Offices: Jerusalem and Gush Etzion; sees clients all over Israel. Zoom/Skype/WhatsApp meetings welcome.

Service: Israel, Worldwide     

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EXPERT ARTICLES

1.  12 Practical Tips and Tricks for Rental Contract Negotiations in Israel
2.  Why Do I Need a Notary? What’s Wrong With Going to a Regular Lawyer or Even to My Trusted Pharmacist, Like in the US?!
3.  FAQs on Making a Will in Israel

 
ARTICLE 1

12 Practical Tips and Tricks for Rental Contract Negotiations in Israel

You are about to rent an apartment. A person purporting to represent the landlord presents you with a single sheet of paper and shows you where to sign on the dotted line (“it’s just standard wording,” he assures you). What should you look out for to protect your interests?

1. Proper power of attorney and absentee landlord

First, insist on seeing an original Power of Attorney document, to verify that the agent has actual authority to sign a rental contract with you on behalf of the landlord. This should be notarized, and if obtained outside of Israel also apostilled.

Check who will be your reference point if any repairs need to be effected during the term of your lease. Remember that you do not want to have to be dealing remotely, via an absentee landlord, who may be 7-10 hours distance away from you, especially in the case where urgent repairs may be required. A property manager or agent in Israel is therefore vital.

2. Property inspection before signing lease

Prevention is better than cure: especially if the apartment is old (and in particular if you plan on living in it for more than a few months), consider undertaking a property inspection through a reputable engineer. Points to check include the presence or likely appearance of mold/dampness (retivut) on the walls, any leaky taps/toilets (you will be responsible for paying the water bills), whether the fuse box is capable of bearing all of your appliances, etc. It is recommended to list and even photograph the apartment and furnishings (e.g. if a hinge on the door of a cabinet is not working) before entering it, to avoid arguments (and attempts to forfeit your security check) at the end of the tenancy period, over whether you have restored the apartment and any furnishings in it to the state it was in at the time you moved in.

3. E-mail as valid form of communication

Especially in the case of an absentee landlord, make sure the contract includes a clause stating that e-mail is a valid means of communication between the parties, and including the parties’ e-mails for this purpose.

4. Rent in advance

Try to avoid paying more than 1 month’s rent in advance. Request a 7 day grace period which allows you to pay rent within 7 days of the contractual due date without breach of contract.

5. Option-to-renew

If you think you may be interested in continuing the tenancy for 1 further year (or longer), you should request that an option-to-renew clause be inserted in the agreement. This will enable you to continue to rent the apartment on the same terms – including at the same rent, or at a rent to be increased by ___% – provided you do not breach the terms of the rental agreement during the initial rental period. This arrangement will often be beneficial to the landlord too, because it saves him the heartache of having to find an alternative tenant, including, possibly, time during which the apartment may go unrented, and including the cost of advertising for a new tenant. In addition, if a mechanism for increasing the rent is already inserted into the original contract, the contract can be renewed automatically, without the need for further lawyer’s fees, etc.

6. Premature termination of lease

If the contract stipulates that the landlord has the right to give ___ days to terminate the lease prematurely, the tenant should insist on being given the same amount of time to break the lease should this prove necessary. If the lease is for a defined term (e.g. 1 year), try and get out of the need to find a suitable alternative tenant for the remainder of the term, in the event that the lease requires premature termination (e.g. after trying for a maximum period of two months). If you are required to find a replacement tenant “suitable to the landlord,” be sure to qualify this with the words: “provided that the landlord shall not unreasonably refuse his consent to such alternative tenant.”

7. Payment of expenses (Arnonah, water, Va’ad Bayit)

In terms of paying expenses – the tenant should only be responsible for usual expenses and regular Va’ad Bayit (Building Maintenance Committee) costs, not for building repairs or improvements/renovations (installing an Intercom system or fixing a lift in the building, replacing a solar heater on the roof, etc). Arnonah, the municipal tax on the apartment, can be high (it includes the water bill), so be careful to ask how much you will have to pay in advance (although as an Oleh Chadash you are entitled to a discount of up to 90% on the bill for the first year, on presentation of your lease to the Iriyah-Municipality). Arnonah is payable according to the number of rooms and amount of space in the apartment – hence it is important for the contract to make clear if one room is closed to you by the landlord. You should also inquire in advance as to how much you will have to pay monthly to the Va’ad Bayit of the building (if there is no Va’ad Bayit, you will be responsible for performing your share of the upkeep of the common parts of the apartment building).

8. Maintenance of property

You should likewise be responsible only for repairs caused by your use of the property – not for fair wear and tear. The contract should be formulated in such a way as to make it clear that the renter is responsible only for repairs above and beyond what is normal usage, and that the owner is responsible for all other repairs (such as structure, wiring/fuse box, and dampness/plumbing).

9. Insurance

You should insure your own belongings, while the landlord should insure property and contents belonging to him. Of course, there are always those landlords who will try and roll over part or all of their building insurance premiums to their tenant, on the ground that the tenant’s own contents insurance would not always cover third party liability (e.g. if a guest or child slips on the floor while the tenant is cleaning for Shabbat, and then sues the tenant for his injuries).

10. Security deposit

It is normal to be required to give some form of security deposit. If a personal check is given, you should write on the check hamcha’at bitachon bilvad – lo sachir, clarifying that the check is for security deposit only and is not negotiable. A undated blank check might be asked for by the landlord, in which case the lease should state by whom the check will be held and clear terms as to the conditions under which the check should be cashed and when it will be returned to you. Whether or not you are required to provide a promissory note (shtar chov) and one or more guarantors (areivim) often depends on how good a negotiator you are! If a shtar chov has to be given, it should be limited in amount (at a level of no more than 3 months’ rent, especially when the rental term is not for many years and where the apartment and furnishings are not in mint condition). A demand to furnish a bank guarantee (areivut bankait) in particular should generally be resisted by the tenant, as it both costs money for its issue and locks up with the bank the amount on the guarantee; in addition, the landlord can cash it in without giving any notice to the tenant. Obviously, from a tenant’s point of view, the less security he needs to give the better and easier for him (especially as it may be near impossible for a new immigrant to provide a guarantor, let alone two).

11. Signing of contract

Finally, every hand-written change to the lease should be initialed by both parties. Likewise, the parties should initial at the bottom of every page of the contract, with their full signature on the signature page.

12. Concluding remark

In general, remember: standard rental contracts in Israel tend to be very landlord-weighted, and you should not be afraid to negotiate the points therein! That said, it goes without saying that even negotiations need to be undertaken in a fair and balanced manner – otherwise, you run the risk that the landlord will not want to take you as his tenant if he gets the impression that the entire tenancy will involved him in a negotiation match…

For further advice on rental contracts, feel free to contact Simon on 0737-40-60-40 / 0545-742-374 / [email protected]


ARTICLE 2

Why Do I Need a Notary?
What’s Wrong With Going to a Regular Lawyer
or Even to My Trusted Pharmacist, Like in the US?!

Notaries Around The World

The common perception of the term “Notary” is of a mature and respected person, authenticating a signature on a document bearing a red ribbon and tab, sealed with the notarial seal and signed by the Notary. Traditionally, notaries recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required.

What is hidden behind the notarial document? What is its significance and validity, both on the local and international plane?

Notaries have had their “notarial acts” recognized worldwide for centuries and this, indeed, has permitted citizens and businesses to circulate freely. In this way Notaries facilitate commerce and the life for the ordinary citizen as notarial acts enable them to go about their daily lives and business freely at reasonable cost and without undue delay. A Notary holds an official seal and notarial acts have probative force. Notarial acts under the signature and seal of a Notary are recognized as evidence of a responsible official legal officer in all countries of the world. They may be received in evidence without further proof as duly authenticated in accordance with the requirements of the law unless the contrary is proved.

Israeli Notaries vs. US Notaries

To become an Israeli Notary, one must be a lawyer of 10 (until 2003 – 15) years seniority, with no criminal record, no complaints against him/her at the Israel Bar Association, and must have undergone a training course. This contrasts with other countries, such as the USA, in which notaries need not be lawyers. Notaries in the United States are much less closely regulated than notaries in most other common-law countries, typically because U.S. notaries have little legal authority. Thus, in most states in the United States, a lay Notary may not offer legal advice or prepare documents and cannot generally recommend how a person should sign a document or what type of notarization is necessary.

Title companies in the USA have notaries attend signings for the purchase of real estate, because state laws generally dictate that the purchasers’ signatures must be “notarized.” This is because such companies essentially trust a Notary Public, by looking at the person’s original identification, to verify that the people signing such important documents are who they say they are. Similarly, financial institutions use notaries for loan signings, and other projects where monies or property are exchanged. This heads off potential problems down the road, if the question of identity ever arises.

Powers of Israeli Notaries

Section 7(1) of the Israeli Notaries Law, 5736-1976, clarifies that the first power and authority an Israeli Notary has is to authenticate signatures. But this is not the sole field of authority of the Notary, who is also authorized to witness and authenticate notarized translations of documents, notarized copies of documents, notarized Wills, irrevocable powers of attorney in favor of mortgage banks, powers of attorney in favor of non-lawyers, notarized pre-nuptial agreements, etc.

Signature verification/certification/authentication on a document by a Notary is mandated by Israeli law in a number of situations. These include

• An irrevocable power of attorney in favor of a mortgage bank, empowering the bank to register the property to be mortgaged in the borrower’s name, and later also to register the mortgage, in the event that the borrower fails to perform these activities. This enables the bank to guarantee the payment of the mortgage.

• An irrevocable power of attorney in respect to a new property (e.g. an apartment) in favor of a building contractor, empowering the contractor to undertake all of the registration formalities at the relevant land registration bodies (e.g. registering the building as a cooperative house (bayit meshutaf) in the Land Registry.

In view of the tremendous importance of these powers of attorney and because the rights of third parties are dependent on them, they will be irrevocable, meaning that they cannot be cancelled after they have been made. The special notarial stamp and seal on these documents is designed to prevent their forgery. By contrast, in other cases, which do not have such a significant impact on those involved, a regular (non-notarial) power of attorney may suffice, e.g. for the Municipality or cellular phone companies.

• A power of attorney in favor of a relative or other third party, empowering such other person (the ‘agent’) to act on behalf of the ‘donor’ of the power, whether in general or for a specific purpose – for example:

• • to undertake banking transactions
  • to take any legal steps necessary to collect debts owed to the donor
  • to maintain/operate any business of the donor
  • to enter into binding contracts
  • to perform any other function (e.g. collecting mail) on the donor’s behalf.

Moreover, if a legal document is being signed in Israel to be used overseas, the foreign country will usually require the document to be witnessed by an Israeli Notary rather than a regular attorney/solicitor. This is because the Notary’s qualification is recognized abroad and the Notary’s signature can be verified. Common examples of overseas transactions that need a Notary include medical professionals applying to work abroad, granting power of attorney to a title company to buy or purchase land on one’s behalf in the USA or according an overseas law firm legal authority to sue a defaulting tenant for unpaid rent on property one owns overseas.

For the purpose of a notarial certification of signature, the signatory must present to the Notary original means of identification at the time s/he signs the document. Acceptable means of identification include a National Identity Card (teudat zehut) or passport. The Notary is required by law to confirm the identification of the person signing the document; hence the need for original identifying documentation.

Why Pay for a Notarized Translation?

The importance of having an accurate translation cannot be overstated. Any error in the translation can cost the client in valuable time and the expenses of having to redo an incorrectly translated document. The provision of an accurate translation ensures that the client is spared a myriad of potential hassles, including running back and forth between the translator and the Notary, who is responsible for the correctness of the translation. A notarized translation of a document is an internationally recognized guarantee that the translation accurately reflects what was written in the original language of the document. It is for this reason that many institutions (the courts, banks, most foreign governments etc.) will only accept notarial translations.

For convenience, clients are welcome to simply e-mail the documents in need of translation. We can then translate and notarize the documents in as expeditious a manner as possible and simply mail them to the client’s address, or to any other address in Israel or abroad, in accordance with the client’s request.

It is our official policy, in the case of all standard documents (including marriage certificates, divorce certificates, birth certificates etc.), to charge the client only for the notarization at the rate prescribed by law, and to charge nothing extra for the time spent in translating the document and for the mailing of the notarized document to the client in Israel.

Before requesting a notary translation, we suggest that you verify what kind of certificate is required by the body demanding the notary certificate, and whether the institution is prepared to accept a single certificate for several different documents, or requires a separate certificate for each individual document. Certain foreign countries may also require an apostille to be affixed on specific public documents or notarial approvals.

What exactly is an “apostille” – you may be wondering?

Apostille is a French word meaning certification. An apostille certificate is an internationally recognized authentication, under the terms of the 1961 Hague Convention, confirming the authenticity of an official document, such as:

• birth certificates
• marriage certificates
• death certificates
• matriculation certificates
• certificates of incorporation of a company.

A document which bears an apostille certification of a country that is a party to the convention will be recognized by all the other countries that are party to the Hague Convention as an authentic document that is issued by the authorized body in the country of origin of the document. In Israel, apostille certifications of official documents are given by the Foreign Ministry.

Occasionally, an apostille certificate may be required by an overseas body for a notarized document prepared by a notary in Israel, thus giving the document legal validation in those foreign countries that have signed the Convention (including most western countries). In Israel there is a certifying authority for this purpose – the local courts – in every major city (in Jerusalem, for example, apostilles can be obtained from the Magistrates Court (Beit Mishpat HaShalom) at 6 Heshin Street (Room 229A), The Russian Compound, Jerusalem, Sunday-Thursday, between 08:30-13:30). The court affixes a sticker to the back of the notary’s certificate, for a nominal fee in stamp duty.

The apostille thus authenticates the notary’s work, confirming the notary stamp and the notary’s authority to approve notarial documents. For those countries who are not parties to the Hague Convention, notarized translations must be validated by the relevant country’s Consulate, or at the Foreign Office, in Israel.

When Ought a Will to be Notarized?

By Israeli law, a last will and testament is valid if signed by its maker (known also as the ‘testator’/’testatrix’) in the presence of two ordinary witnesses. At times, however, a person making a will may choose to sign it before an Israeli Notary. The Notary confirms that the will has been read to the testator and that the testator declared of his own volition that it was his will.

The advantage of signing a will before a Notary is two-fold:

• the testator may state his will orally or in writing in the Notary’s presence, without the need for any additional witnesses;

• a notarial will has stronger weight than other types of wills under Israeli law (it is akin to a will signed before a judge), thus eliminating the potential for any future claims of fraudulent signature by the testator, such as on the basis of undue influence or duress, which might result in the will’s disqualification.

Drafting and Notarization of Affidavits

Generally speaking, an affidavit does not require signing before a notary (signing before an ordinary Israeli attorney often suffices). Where the authorities do require the provision of a notarized affidavit, attendance in person at the notary’s office is required, because the notary is required by law to confirm the client’s identification before signing the affidavit. The notary can also draft the wording of the affidavit on the client’s behalf (in simple cases, this can even be prepared in advance of the client’s visit, following an e-mail and/or telephone call conveying the information that the affidavit is to include, thus saving time for the client).

The signatory will need to present to the notary acceptable means of identification at the time s/he signs the document. Original identifying documentation is required, including one’s teudat zehut (National Identity Card) or passport. To save time, it is recommended to e-mail us a clear copy of the identification documents in advance of your visit. If the client is unable to attend our offices, the notary can travel to his/her place of abode (including his/her home, office or even hospital bed where necessary) for a supplemental fee as prescribed by the law.

Notarial Certification of True Copies of Documents

Certification of a true copy is a certificate approving that a copy of a document is true and identical to the original document. Such certification may be issued by an Israeli advocate or by a licensed Israeli notary, depending on the client’s requirements and purposes. For example, certification by a notary will often be required in order to certify true copies of parents’ passports when applying for a passport for their child. The confirmation is given for every kind of document, irrespective of the language in which the document is written.

Authentication of Signatures on Prenuptial Agreements

A prenuptial agreement is an agreement made by a couple, in advance of their marriage, settling all matters of assets and finances between couples. Such an agreement can save the couple much financial and emotional heartache in the event of divorce, separation or death.

The law determines that for a pre-nuptial agreement to be binding, it must be signed before a notary or before the Family Court. If the agreement is not approved in one of these ways, it will be unenforceable.

In order to receive a prenuptial agreement approval, the parties must sign in the presence of the notary.

Notarized Life Certificates

A notarized life certificate is a certificate confirming that a specific person is alive. Compensation payments from Germany, for example, require the presentation of a notarized life certificate, confirming that the beneficiary is alive. An individual living outside of Israel and who benefits from payments from the Israeli government or other Israeli agencies, such as the National Insurance Institute (Bituach Leumi), pension funds, etc., is sometimes required to show proof of life by obtaining a Life Certificate from the Israeli Consulate or Embassy in their region.

Who Sets The Fees For Notarial Procedures?

The fees for notarial procedures are set by the Israeli Ministry of Justice (Misrad HaMishpatim) and notaries are prohibited by law from charging more or less than the fixed tariffs! The fees are updated annually by the Ministry, according to fluctuations in the Consumer Price Index (madad).

Why then, in conclusion, do notarial signatures carry more weight than non-notarized signatures and why are the fees for notarial procedures high, relative to procedures performed by other professionals in Israel?

In the case of a notarized authentication of a person’s signature, the assumption is that the signatory has signed the relevant document in the knowledge that he is aware of what he signed and the legal consequences of signing it.

In the case of a notarized will, the presumption is that the testator was of sound mind and memory and free from any influence or duress whatsoever, when signing his Will. Notarized wills can thus be kept totally secret – no-one need know of their existence.

As for notarized translations, these form an internationally recognized guarantee that their content accurately reflects what was written in the original language of the document.

For further information on notarial procedures, including notarized signatures, translations, wills and pre-nuptial agreements, feel free to contact me directly at 0737-40-60-40 / 0545-742-374 / [email protected]


ARTICLE 3

FAQs on Making a Will in Israel

(1) WHY SHOULD I BOTHER MAKING A WILL?

Making a Will, which is usually a very simple and relatively inexpensive document in Israel, can be a very simple expedient for avoiding intra-family conflict, squabbles and misunderstandings amongst your heirs.

In addition, probating a Will, when the time comes, involves much less expense, time and bureaucracy than that required in order to obtain a Succession Order – a procedure which is complicated and lengthy as compared to the much simpler procedure of applying for an order to probate a Will. Moreover, in the absence of a Will, your assets will be distributed in accordance with the default provisions for distribution set forth in the Israeli Inheritance law. These provisions may well distribute your estate in a manner which is less than ideal – for example, it may grant your widow only half of your estate, with the other half being distributed outright amongst your children.

A Will can thus deal clearly and straightforwardly with issues such as:

• Your ability to prescribe how you would like your assets to be distributed once you reach the age of 120 – for example: “half to my spouse, and after both of our deaths, to our children in equal shares.” It should be noted that, in the absence of a Will, your assets will not be divided in the aforementioned manner, but according to the default provisions for distribution set forth in the Israeli Inheritance Law.
• Your Will can also appoint named guardians to look after your children should you and your spouse die while they are still young or are incapable of managing their own affairs.
• A Will can clarify whether your grandchildren should inherit the share of your estate that their parent would have inherited had s/he been alive on the date of your death.
• You may want to make designated bequests to named beneficiaries of certain items of monetary or sentimental value to ensure their use for one or more generations to come.
• If any of your children have special needs, which may justify an unequal division of your assets, your Will can provide clear and straightforward provisions to deal with such situations.
• Your Will enables you to preserve the assets of your estate after your demise, by allowing for their distribution only after the beneficiaries have reached a certain age (say, 18, or even 21 in the case of Israeli beneficiaries, after Army service).
• Your Will can also include a long-stop provision to cover the possibility that, God forbid, your entire family (children and grandchildren included) might die in a plane or car accident, etc.
• Last, but not least, making a Will enables you to enjoy the peace of mind of knowing that you’ve done everything possible to prevent arguments and rivalry amongst your children regarding your assets after you die.

Have you ever wondered what Jewish Law (Halacha) has to say on the subject of Wills? Can a Will be drafted in such a way so as to be “kosher” both in terms of the requirements of the Halacha and fulfill all of the requirements of the “law of the land”? To enable my daughters to inherit and all of my children to inherit in equal shares (my first born son included)? We will leave these issues to the final question in this series.

Two final tips to consider when making a Will:

• An Israeli Will can be drafted in either Hebrew or English.
• If you have assets outside of Israel, while technically you could cover all of your overseas assets with one Will made in Israel, I personally recommend making separate Wills for each jurisdiction, in order to avoid unnecessary tax and other complications in the future. Without this expediency, your Israeli Will would otherwise need to be probated in more than one jurisdiction, which can be a costly and bureaucratic procedure. So, if my wife and I own assets in Israel but we still own assets in England and America, between us we should sign three separate wills: one in Israel and in the UK for me, and one in Israel and the US for my wife.

This leads us to our next question:

(2) If the vast majority of my assets have been moved to Israel, need I still make a separate Will abroad?

While generally, we advise making separate Wills for each separate jurisdiction in which you have assets. However, there may be occasions when you don’t need to make a separate Will abroad at all.

For example, if you own a bank account abroad, you can simply complete a “nominated beneficiary” form, through which you designate one or more family members or other beneficiaries to receive the proceeds of your account once you die. In this manner, your few overseas assets will pass independently of any Will that you have drafted, thus preventing them being frozen upon your death until such time as the relevant Will is probated or a succession order is made in case of intestacy.

(3) WHAT DOES PROBATE MEAN?

‘Probate’ is a term commonly used when talking about applying for the right to deal with a deceased person’s affairs generally – and specifically to resolve all claims and to distribute the deceased person’s property under a valid Will. A “Grant of Probate” (Tzav Kiyum Tzava’ah) confirms the validity of a deceased person’s Will. Once a Will has been probated by the Israeli Succession Registrar (Ha’Rasham Le’Inyanei Yerusha), or by the Family Matters Court (Beit HaMishpat Le’Inyanei Mishpacha) in less straightforward cases, everyone can rely on its authenticity. Probate thus protects the instructions of the deceased, confirms the executor as the person entitled to deal with the deceased’s estate in accordance with his Will, protects the interests of family members who may have claims against the estate, and protects the executor against claims and lawsuits.

(4) THE APPOINTMENT OF AN EXECUTOR IN ONE’S WILL

(a) What is the role of an executor?

An executor is a person or trust company whom you name in your Will to carry out (“execute”) your wishes and distribute your estate when you die. Your estate is what you own at the time of your death. It may include all kinds of property such as a car, a house, a cottage, land, furniture and jewelry. Other property may come into your estate after your death, such as interest on investments and income from rental property.

The executor’s responsibilities include obtaining the original copy of your Will; taking control of your estate and make a list of your property; applying to the court for probate, where appropriate; administering the estate and paying off all outstanding debts; and distributing your property according to your wishes as set out in your Will.

(b) Is it advisable for me to appoint an executor in my Will – or not?

Unlike in other jurisdictions, the appointment of an executor is not required under Israeli law. Indeed, if the estate is small or straightforward, it is probably not necessary, albeit that an executor can assist in the efficient distribution of the estate. The appointment of an executor can add considerably to the costs of winding up an estate, as the executor is required to file with the Administrator General’s Office (האפוטרופוס הכללי) an inventory of all the estate’s assets and an annual report of his dealings with those assets, as well as various applications to the court.

(c) When ought an executor to be appointed?

One or more executors ought to be appointed under your Will, in cases where complications can be foreseen, e.g. in cases of potential disputes between beneficiaries, such as where the testator has children from a previous marriage. Even such cases may not require the appointment of an executor – I once had the good fortune to be inspired by an elderly couple (his second marriage with children from his first wife, her first marriage with no children), where it was clear that the new wife got on so well with the children of her husband’s first marriage that she wanted to leave 90% of their assets to them!

An application to appoint an executor would need to be made, for example, when one of the beneficiaries cannot be traced.

(d) Should family members be appointed as one’s executor?

You can choose either a person or a trust company to act as your executor. If you choose a person to be your executor he or she must be 18 years or older. Most people choose a relative or close friend as executor. If your estate is large or complicated you may wish to appoint a professional person to act as your executor, such as your lawyer or accountant, or even both.

Family members will usually agree to administer the estate without taking a fee. If you wish to name a family member in your Will, you should always discuss the role with the person in advance so that the person you choose knows what is involved with the job. Remember, also, that the person you name in your Will as executor has the right to refuse to act as your executor. Being a financial or legal expert is not necessary, as long as your executors have access to competent advisors to advise and assist them in the administration of the estate. However, executors cannot leave important decisions to others, such as whether to sell an asset or whether to invest in shares or bonds.

By contrast, if your estate is large or complicated, or you prefer not to have friends or family act as your executor, or you feel that family members of friends do not have the necessary time or experience, you should consider appointing a professional executor, despite the fact that such a person Will expect to be paid for their professional services rendered when winding up an estate. Professionals may offer the familiarity with tax law, investment management, real estate or business administration which is required to administer your estate.

(e) Should I choose an alternate executor?

Yes, you should appoint an alternate to replace your executor in case your first choice is unwilling or unable to act as executor at your death. Even if you have chosen your spouse to be your executor it is a good idea to choose an alternate. If your executor is unable to act and you have not named an alternate in your Will, the Probate Court will have to appoint one, assuming an executor is required.

(5) THE APPOINTMENT OF TRUSTEES

(a) What is the difference between an executor and a trustee?

The executors distribute and administer the testator’s estate after his death. The trustees Will take over and manage any trust to be created under the Will once the estate administration has been completed.

(b) When ought a trustee be appointed?

Trustees may not always be required. In the case of a simple Will, there is usually no need to create a trust. In other more complex situations the testator may need to create a trust, such as where a minor beneficiary has an interest in the estate and the property cannot be distributed to that minor as he cannot give a good receipt, or where the testator does not wish the minor to inherit his interest in the estate until he reaches a certain age (often 21 in Israel, after the conclusion of IDF service).

(6) HOW TO SIGN YOUR WILL(S)

Once you have approved the wording of your Will, you should:

• Print out two copies of the Will (three copies if you are a couple), one for each of you and one for the executor, if one has been nominated in the Will.

• Sign and date the final page of the Will, in the presence of two independent, adult witnesses (who should be of sound mind and not related to each other or to you).

• Append your initials at the bottom of the other pages of the Will.

• After you have signed and dated the Will, the witnesses should sign their names where indicated on the final page of both copies of the Will. They should then add their full names, I.D. numbers and addresses beneath their signatures.

• Finally, the witnesses should also append their initials at the bottom of the other pages of the Will.

• One of the signed Wills should be kept by you in a safe place, while the other should be delivered to your executor (if one has been nominated under the Will.
  
  (7) SIGNING ONE’S WILL BEFORE A NOTARY
  – WHAT ARE THE ADVANTAGES?
  
  (a) Do I need to sign my Will before a Notary?

By Israeli law, your Will is valid if signed in the presence of two or more ordinary witnesses over the age of 18 who are present and witness the Will at the same time as you sign. Both you and the two witnesses must be of sound mind, and none of you should be related.

          (b) Are there any advantages to signing a Will before a Notary?

As mentioned above, by Israeli law, a last will and testament is valid if signed by its maker (known also as the ‘testator’/’testatrix’) in the presence of two ordinary witnesses. At times, however, a person making a will may choose to sign it before an Israeli Notary. The Notary confirms that the will has been read to the testator and that the testator declared of his own volition that it was his last will.

The advantage of signing a will before a Notary is two-fold:

• the testator may state his will orally or in writing in the Notary’s presence, without the need for any additional witnesses;

• a notarial will has stronger weight than other types of wills under Israeli law (it is akin to a will signed before a judge), thus eliminating the potential for any future claims of fraudulent signature by the testator, such as on the basis of undue influence or duress, which might result in the will’s disqualification.

Notarized Wills can thus be kept totally secret – no-one need know of their existence; and the presumption will be that the testator was of sound mind and memory and free from any influence or duress whatsoever, when signing his Will.

(8) WHAT IS THE PROCEDURE FOR CHANGING MY WILL ONCE IT HAS BEEN SIGNED?

Your Will can be changed whenever you wish, either by means of a codicil (nispach, in Hebrew) or simply by drafting a new Will (which is usually the cleanest and best option, assuming the original Will has been saved on the computer).

It is advisable to review one’s Will for any important changes at regular intervals (for example, once every five years).

That said, ideally one’s original Will should be drafted in such a way, as to obviate the need for any simple changes – for example, by avoiding naming one’s children who Will inherit in equal shares, when further children might be born in the years ahead (or, alternatively, stating: “My children now living are…”).

(9) WHAT IS A “TOFES ARICHUT YAMIM” AND HOW CAN IT BYPASS THE WILL?

This is a form, which a couple are advised to ask their bank to sign, either when opening their account or afterwards. It appoints both spouses as co-owners of their bank account. This simple expedient enables either spouse to continue to act in the account even after the death of the other spouse (the “right of survivorship”). Without this device, the account would be automatically frozen upon the death of one spouse, and the bank will only agree to allow dealings in the account upon the presentation of a Probate Order (where there is a Will) or Succession Order (upon intestacy).

The procedure can also be useful in the case of elderly relatives, to enable one or more of their children, for example, to handle their finances on their behalf – without the need to sign a power of attorney document before a Notary (which document will, in any event, lapse automatically upon the account holder’s death). Of course, such an expedient should only be used if there is complete trust between the elderly person and his or her relative.

(10) A FEW WORDS ON HALACHIC WILLS

I am an observant Jew and believe that in today’s day and age it is only healthy and right to give each of my children an equal share of my estate, including my first born son and my daughters. Is it possible to draft my will in such a way that it accords both with the requirements of Jewish Law as well as those of modern Israeli law?

According to Jewish Law, only male offspring are capable of inheriting their father’s estate. The Torah awards women no rights of inheritance as long as there are male heirs in the same class. So, daughters will not inherit if there are sons, and sisters will not inherit if there are brothers. Moreover, when the first born is a male, he is entitled to a double portion – two shares of the tangible assets of the estate. The upshot of the above is that a person, according to the strict letter of the law, is unable to distribute his estate to non-halachic heirs, such as a wife or a daughter, or in a way which would deprive his firstborn of his halachic entitlement to a double portion, without violating the Halacha.

One way of grappling with this challenge is by way of a gift (matana). This is because the strict Torah laws of inheritance only apply to property owned by a person at the time of his death. However, one can make a gift to anyone at any time he is capable of doing so, before his death. Thus, if a person gave away or otherwise disposed of his property during his lifetime (for example, to his daughters), the Torah’s restrictions limiting his abilities on inheritance would not apply.

This said, in practice, however, the maker of the will may be unable to part with his possessions during his lifetime, which is a drawback of making an outright gift. Moreover, it is not possible for a gift made during his lifetime to be effective after the will-maker’s death – because, according to the Halacha, at the moment of death the title to his possessions vests automatically in his heirs!

The way of getting round this quandary is to draft a legal instrument, which would enable the beneficiary to take immediate title to the property – but, at the same time, would enable the donor to retain the right to all income earned during his lifetime, as well as to revoke the trust whenever he desires. This is known as a “revocable inter-vivos trust.”

The drawback to this method is that the majority of halachic authorities require a formal transfer of title to the property (kinyan) to be binding. However, such a kinyan will only be effective in transferring property which is currently in the donor’s possession at the time of the kinyan. It would have no effect on property yet to be acquired, such property being a matter which is not as yet in existence (davar sh-lo ba le’olam) – see: Bava Metzia 46a, Tur and Shulchan Aruch, Choshen Mishpat 203, 209. Yet a conventional will generally deals with future holdings as well. Thus, equal distribution to children using outright lifetime gifts would be extremely difficult. On a practical level, too, the gift approach has drawbacks. For example, a substantial gift made to a daughter while the parents are alive might generate considerable resentment from the sons.

Another method to circumvent the Halachic restrictions is via the so-called creation of an Indebtedness (Shtar Chatzi Zachar / Shtar Zachar Shaleim).

Simply put, this method enables a person to draft a secular will, while effectively distributing his estate equally to both male and female heirs. He does so by creating an indebtedness well in excess of the total value of his estate, as leverage to encourage his sons to carry out the terms of his will. Should they fail to do so, the will would require them to pay the full monetary debt to the daughters (or non-firstborn sons). This debt becomes a lien on all of the will-maker’s property – both current and future holdings.
This technique was primarily used to give daughters a half share or full share in one’s estate and is known as shtar chatzi zachar (half share) or shtar zachar shaleim (full share). Such a document was often drawn up and delivered to a daughter at the time of her marriage.

In view of the above halachic problems/challenges, and in light of the above suggested potential solutions, my practice is to draw up two documents for religious clients interested in making an Israeli Will. The first is a standard, secular will, drafted in Hebrew or English, according to the laws of the State of Israel, tailored to the specific needs of the client – which usually involve distributing each will-maker’s property to the surviving spouse and then to each of his/her children (whether male or female) in equal shares (whether firstborn or otherwise).

The second document constitutes a “Halachic Wills Appendix,” based on a Hebrew document drafted by Rav Zvi Yehuda ben Ya’akov, a Dayan on the Tel-Aviv Regional Rabbinical Court. This document effectively enables the secular will to comply with the requirements of Halacha, combining as it does the elements of the gift approach (for property on which a kinyan can work) and the penalty payment mechanism (in the sum of double the share that each beneficiary would be entitled to receive under the secular will, in the event that the sons do not pay their full monetary obligations to the daughters under the ‘note’ of indebtedness). The “Halachic Wills Appendix” is drafted, as mentioned, in a separate document – which has the added advantage that it need not be brought to the attention of a non-religious judge (who may otherwise be confused at best, particularly by its unusual “indebtedness” provisions) at the time the ordinary, secular will is probated.

One final question:

Say I’ve made a will and even possibly appointed an executor – how I can be certain my will will actually be discovered after I pass away?

My first answer to this very good question is to keep your Will in a safe place, together with your personal papers for example, so that when the time comes it will be easy to discover by your heirs.

A further procedure is available in Israel. You can deposit your Will – in person – for a nominal fee, with the Rasham Le’Inyanei Yerusha. It will then be archived by the Rasham, until either you request it back, or until you die and an application is then made by your heirs to probate your will or to obtain an inheritance order. If no order has been applied for, then 3 months after your death the Rasham will open the will on his own volition and/or give notice of the will’s existence to the beneficiaries under the will.

This concludes our series of frequently asked questions on the subject of Wills and Successions in Israel.

For further advice and assistance in making an Israeli or UK Will, feel free to contact Simon: 0737-40-60-40 / 0545-742-374 / [email protected]