What is the Jewish Will & Testament?

Updated: Sep 26

Judaism and Islam are both Abrahamic religions. Both religions share large portion of spiritual history, literature and principles compare to other religions. We will learn about Jewish Will in this blog.


What is the origin of Jewish Will?


The Hebrew Bible first described ethical wills 3000 years ago. If you look at Genesis, Chapter 49, you’ll get a glimpse of Jacob leaving an ethical will to his family. He blessed them each individually and then told the assembled how he would like to bury. End of life is just one time—and the most common—that ethical wills are written. And Moses makes a farewell address, chastising, prophe­sying, and instructing his people before he dies. David prepares Solomon before he goes to his eternal rest by warning him whom to be wary of when he becomes king, and by asking him to complete the task he had begun and was unable to finish. The Apocrypha, the Talmud, medi­eval and modern Hebrew literature all contain examples of ethical wills parents left their children.

What is Halacha Will?


Halakha (/hɑːˈlɔːxə/; Hebrew: הֲלָכָה‬, Sephardic: [halaˈχa]; also transliterated as halacha, Halakhah, Halachah or halocho) (Ashkenazic: [haˈloχo]) is the collective body of Jewish religious laws derived from the written old testament and the oral law called as Torah. The Oral Law was initially being transmitted verbally from generation to generation but canonized in the Mishna and the Gemara (popularly known as the Talmud). The Mishna delineates general principles underlying the laws of the Old Testament, while the Gemara provides the details and analytical framework of those general principles through debate and discussion. The rules governing Jewish inheritance laws found in the Book of Numbers 27:8–11 and the Book of Deuteronomy 21:17.


If an Orthodox Jew wishes to make a Will, there is no choice other than creating Halacha will that is based on Jewish religious law. It is because Halacha lays down an order of inheritance, including the double portion for a first-born son. In Halacha, it is forbidden to circumvent the inheritance order and a Will that overrides this Order, even though such a Will is valid or legal, violates Halacha.

A Halachic will is a way to reconcile the Jewish laws of inheritance with one’s estate planning. Jewish law does not accept the validity of any will, ruling that after a person’s death they are not able to have any control over what used to be their property. The essential difference between a secular legal will and a Jewish will is that a Jewish will is activated one moment before death, when according to Jewish law a man/woman still owns his/her property and can give it to whomever he/she chooses through a previously-prepared document (even if he/she is not conscious at that moment). A legal will is activated immediately after death, at which point Jewish law does not permit the deceased to make decisions about what happens to his/her estate, even though there is a previously-prepared document because he/she cannot own property after death.


How does the Halacha Wills and Secular Wills work together?


In order the Halachic Wills to be compliant in conjunction with the secular Will, there are two Wills to be created for religious Jewish interested in making Will. Create secular Will in Hebrew or English, according to the laws of the State of residence country, attesting to the specific needs which usually involve distributing the property to the surviving spouse and then to each of his or her children (whether male or female) in equal shares (whether firstborn or otherwise). The second Halachic Wills constitutes an ethically based detail in compliance with Jewish religious law. This approach of draft effectively enables the secular will to comply with the requirements of Halacha along with combining the elements of the gifting strategy and the penalty payment mechanism. So, Separating two Wills have the benefits of keeping the attention away for a nonreligious judge who will not get mixed with the validity at the time the ordinary, secular will gets probated.

What is the Jewish ethical Will?


Ethical Will is not a legal document, and so it can take any shape the writer wishes. In most cases, they are written or typed, but they can also be shared widely through video platforms and social media. An ethical will may contain photographs or illustrations or take the form of a record. It can read like a letter or a wish list of ideas. It allows addressing to children and grandchildren, to a friend, or anyone and everyone else you think should read it. There is no template for an ethical will; however, some rabbis, synagogues offer courses in ethical will writing. Ethical wills are not easy to read, write or interpret, it may consume plenty of efforts as nothing is so conclusive, and still, the reader or follower has to obey. Writing ethical Will needs a fair amount of experience and a genuine understanding of religious law if once writing to straighten his or her Jewish religious law. An Ethical will called "Zava'ah" in Hebrew is a document designed to pass ethical values from one generation to the next. Rabbis and Jewish laypeople have continued to write ethical wills during the nineteenth and twentieth centuries.


How does the Jewish Law of inheritance work?


Jewish considers it is essential to write a Halachic Will. Under Jewish inheritance laws:

  • When a wife passes away, most or all of her assets belong to her surviving husband.

  • When a male survives by sons and minor daughters, his estate is required to support his daughters with food, clothing, utensils, and shelter until they come of age.

  • When a male survives by sons and single daughters, the estate may need to pay dowries to the daughters when they get married.

  • When a husband passes away without writing a will according to Jewish law, although his surviving spouse might have certain rights with regards to being supported (see below), only his sons are heirs (title owners) of the estate’s assets, even if he survives by sons and daughters.

  • A firstborn male is entitled to a double portion of the estate.

  • If no sons are living, the daughters are exclusive heirs of the estate (and not his surviving spouse and other relatives).

  • Torah heirs are given certain rights that, unless waived by the heir, may not be in accordance with one’s secular will.

  • When a Jewish senior survives by his spouse, his estate is required to support his spouse with food, clothing, utensils, shelter, and medical needs, unless she accepts a

  • lump sum payment of her kesubah (marriage contract) or gets remarried. The amount specified in her kesubah could be more than $50,000.

What is the Beth Din of America?


A beth din, translated as house of judgment, is a rabbinical court of Judaism. In ancient times, it was the building block of the legal system in the Biblical Land of Israel. The Beth Din of America was founded in 1960 by the Rabbinical Council of America. In 1994, the Beth Din became an autonomous organization, headed by an independent board of directors. The organization oversees by its rabbinic leadership and a board of directors composed of lay and rabbinic leaders. The Beth Din of America is famous as one of the nation’s prominent rabbinic courts. It serves the Jewish community of North America as a forum for arbitrating disputes through the din Torah process, obtaining Jewish divorces, and confirming Jewish personal status issues and providing guidance on wealth management and estate planning for the Jewish community. The Beth Din foundation is on the principles of halacha (Jewish law), and have earned a reputation by carrying out affairs confidential, competent, fairness, and integratively. For information visit at https://bethdin.org/ where you would find reading materials and services that help you build the estate plan.



What four things you should know before creating Jewish Halacha Will?


Wills before death: It is a common practice to leave a will by which a person’s estate is divided according to his own wishes. According to Halacha, dead people have no rights over the property they owned while alive. Therefore, a person designated in a will has no halachic right to the property bequeathed to him and may take it only if the rightful halachic heirs agree to give it to him. Creating legally valid Wills becomes the invalid after death as per Jewish inheritance laws. There are few alternatives for tackling this issue such as inter-vivo gifts, creating trusts, indebtedness. However, Every choice has the pros and cons as well as acceptance or not acceptance in Jewish religion and it needs an attorney as well as Jewish rabbi advice for creating Jewish Wills.


Dina De-Malkhuta Dina: The meaning of "Dina De-Malkhuta Dina" is that the law of the kingdom governs or in other words you can follow the rules where you live. This concept makes the secular Wills acceptable, and that's why many modern Orthodox rabbis take the position that secular wills are Halachically valid while some rabbis suggest that regardless of the validity of secular wills the beneficiaries may still keep the inheritance. Others indicate that a recipient relying on a secular will as opposed to the Jewish law of inheritance may, under Jewish law, be guilty of theft. So there are different views, and thus, it is not an easy way to explain where to lend, and it needs an attorney as well as Jewish rabbi advice for creating Jewish Wills.


Widow, Single daughters and Women: Most country law states the distributing estates equally among children, however, as per Jewish law it is not valid in few scenarios. For example, the daughter cannot inherit if there is no son in the family as per Jewish law. The halacha provides for the widow, who can exercise one of two options. She can receive food, clothing, and shelter from her late husband’s estate indefinitely, losing these rights only if and when she remarries,5 or she can receive a lump sum payment of the kesuba. The halacha also provides for single daughters, entitling them to food, clothing, and shelter until they mature,7 and a substantial dowry as well. The halakha has fairly complex rules for property owned by a woman before and after marriage which makes the Jewish Wills interesting.


Halacha inheritors: The halakha does not allow for the transfer of property to persons other than those enumerated by Jewish law. In other words, a will that designates beneficiaries other than those allowed by Jewish law is invalid for halakha. Beneficiaries inherit under the halakha based on a system of different levels of priority. A person of the first order of priority who survives the decedent inherits the decedent’s entire estate. If no member of the first order of priority is alive at the time of the decedent’s death, then the lineal descendants of that person inherit that person’s share on a per stirpes basis. If neither the first order of priority person nor his descendants survive the decedent, then the estate passes on to the next level of priority. The order is Son (the eldest son receives a double portion, under a version of primogeniture inheritance), Daughter, Decedent’s father, Paternal brothers, Paternal sisters, Paternal grandfather, Paternal uncles, Paternal aunts, and Paternal great-grandfather.


Jewish Wills

References

  1. Beth Din of America

  2. Halachic will

  3. My Jewish Learning - Judaism & Jewish Life

  4. Jewish Virtual Library

  5. Judaism 101

  6. Islamic Inheritance law Book

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