Writing a will-The Mitzvah, When, & How

Writing a will:

A. The Mitzvah:[1]

One is to write a will as he approaches his day of death.[2] Some communities are accustomed to do so on the third day of illness of a person.[3] The writing of a will is a Segula for a long life[4], and hence does not have to wait until one is nearing death.[5] Doing so does not infringe on the saying “Don’t open the mouth for the Satan.”[6] [Writing a will at an earlier opportunity is especially necessary today where state laws of inheritance widely differ from the Halachic laws of inheritance. Hence, a legally binding will is to be written to insure a Halachically valid inheritance that refrains the children from engaging in battles that involve contradictions between Jewish and state law.]

Legally enforceable: The will is to be written in front of witnesses, and is not to be left to the testimony of one’s father, or wife and children.[7] It is to be legally binding and is hence to be performed under the guidance of a lawyer.[8] If one suspects that leaving a will can lead to argument and fights amongst the inheritors, he is to divide the items prior to his death.[9]

B. A Halachically valid will:

Every country contains inheritance laws that take effect the moment a person dies, if he did not leave an official legally binding will. Being that state law differs from Jewish law, it is therefore necessary to write a will that confers with Jewish law, prior to one’s passing. There are clear Halachic guidelines for the order of inheritance and distribution of wealth and property, and there are various laws that dictate whether one can change this order of inheritance.[10] Certain redistributions are not initially allowed to be done, and some do not even carry Halachic legal status.[11] Furthermore, a will may require a Halachic acquisition performed so it is legally binding, and a typical secular will written by one’s attorney may not meet these standards.[12] Thus, in order that one’s wishes of distribution do not contradict Jewish law and are enforceable under both state and Jewish law, it is necessary that one turn to an Orthodox estate planning attorney who has Rabbinical guidance for the writing of wills, so it complies to both the law of the land and law of the Torah.[13]

Inheriting to daughters and to all children equally: Per Halacha, only sons receive the inheritance and not daughters.[14] Nevertheless, there are various entitlements given to daughters, outside of the official inheritance.[15] In addition, many parents would like all their children, including their daughters, to receive an equal share and hence diminish any disharmony from erupting after death in regards to the estate. Some Rabbanim thus encourage one to [partially] inherit also to daughters, and so was customarily done for hundreds of years, as brought in the Poskim.[16] There are numerous Halachically valid ways of facilitating an equal inheritance to all children, such as through writing a Shtar Matana to the children which takes effect while the person is still alive[17], or through writing an IOU document to the daughters that is of greater worth than the estate, hence forcing the sons to equally divide the inheritance.[18] Practically, as stated above, one is to seek Halachic and legal guidance in this matter.

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[1] Sefer Chassidim 718; Yosef Ometz p. 324 in name of Rabbeinu Yerucham; Sefarim in Nitei Gavriel 1:1; See Michaber 335:7 regarding collecting debts and paying loans

[2] Seder Viduy of Ramban, printed in Darkei Chesed p. 256

[3] Chochmas Adam 151:11

[4] Igros Kodesh 4:373 that so was said in past; Heard from Rav Groner in name of previous Rebbe

[5] See Igros Kodesh ibid; The Rebbe wrote a will sometime in 1987; Heard from Rav Groner

[6] See Kochavei Yitzchak 1:22; Igros Moshe O.C. 2:111; Yechaveh Daas 3:85

[7] Sefer Chassidim ibid

[8] Igros Kodesh ibid

[9] Rama C.M. 257:7; Mavor Yaabok Sifsei Tzedek 8

[10] See Shulchan Aruch Choshen Mishpat chapters 276 for the order of inheritance, and that when there are sons, no one else inherits, including daughters. See chapter 281-282 regarding redistributing the will against the above guidelines, and when it is valid to do so.

[11] See Michaber C.M. 281:1 that certain redistributions, such as completely removing a heir, are legally invalid in all cases; See Michaber 281:5 that redistributions in a Lashon of Yerusha are never legally binding if the person is currently healthy, and they are binding only if the person is ill at the time of the will; See Michaber 281:7 that redistributions are legally binding in all cases if given as an inter-vivo gift prior to death and not Lashon Yerusha. See however Michaber 282:1 and Admur Hilchos Mechira 8 that even when redistribution maintains Halachic legality, it is not initially permitted to do so. However, there are certain cases of exception, and hence a Rav is to be contacted.

[12] Even when a redistribution is permitted or legally binding, often, a Kinyan must be made in order to finalize its legal status, and if a Kinyan is not made it can jeopardize the entire validity of the will, even if it’s form of distribution is permitted. This last issue is relevant when one makes a secular will without any formal Kinyan, such as Kinyan Suddar, and enters the question as to whether such a will is legally binding onto the traditional Halachic heirs, even if it was written in a way that does not transgress the laws of Yerusha. This matter is discussed extensively in Achronim, who try to vindicate the custom of many for hundreds of years to rely on a secular will without any formal Kinyan: See Michaber C.M. 281:1-5; Rama 257:7; Maharam in Mordechai Baba Metzia 254; Radbaz 1:67; Achiezer 3:34; Igros Moshe E.H. 104

[13] There are legal and Halachically binding will documents offered by Rabbanim and lawyers that combine one’s secular will with the Halachically permissible terms of contract. For example, if one has a son and desires to inherit his estate also to his daughter, who Halachically is not meant to receive inheritance in such a case, then he must create a contract which circumvents this prohibition. There are various methods in how this can be accomplished. It is beyond the scope of this book to enter all the details involved in will writing, although we will briefly address inheriting to daughters. The most common method used today is through writing a typical secular will that does not completely leave out any Halachicly destined heir, and then attaching to it a Shetar Chatzi Zachar, otherwise known as an IOU document, which enforce the heirs to comply by the will, otherwise they will have to pay the enormous debt written in the IOU. [See Dinei Yerusha by Rabbi Ari Marburger]  

[14] Michaber 276:1; Bamidbar 27:8

[15] Such as giving each unmarried daughter a 10^th of the estate. [Even Haezer 113:4; Kesubos 68a]

[16] See Rama C.M. 281:7 that so is the custom

[17] Rama C.M. 281:7; Mordechai Yeish Nochlin; However, see ibid that only those assets acquired prior to this contract being written are under distribution to the daughter.

[18] Rama ibid that so is custom; This is known as a Shetar Chatzi Zachar