Protect Your Family
Wills & Halacha
Many people believe a Last Will and Testament is only for people with large estates.
Or they put off writing their will until some undetermined future day when they believe it will become appropriate to think about such matters.
If you have minor children, who will be their guardians? If you do not have a will, you leave this life-altering decision — the most momentous one a parent can make — to the court.
(Seem unlikely? The recent custody battle over 6-year old Eitan Biran shows just how this nightmare scenario can play out, complete with charges of kidnapping against a grief-stricken grandparent.)
Even if you do not have minor children, without a will, your heirs will only be able to inherit your estate after probate, an often lengthy and expensive process, is complete. This is true even when the heir is a spouse.
Unless you leave a will, your surviving spouse may be left without access to any funds at all — even funds required for burial — until probate is complete.
You need a will, and the time to write it is long before that undetermined future day on which you will be prepared. The time to do it is now.
But that does not mean you can download a will from the Internet.
The Torah specifies a seder yerusha, a specific system of inheritance, that entitles the sons over the wife and daughters, and grants a firstborn son the right to a double portion of the estate.
This is different from secular law, as well as from the way most people choose to divide their assets. And therein lies the problem.
A will that has been constructed without regard to halacha puts everyone who inherits at risk.
Anyone who receives money outside the specifications of the seder yerusha — a widow, a daughter, a grandchild, a charitable organization that is the beneficiary of a bequest — opens themselves up to the concern that they have taken something they were not entitled to.
Moreover, in some cases, the rightful heirs attempt to wrest back their inheritance by taking the other inheritors to beis din. In a few of those cases, the litigants end up in secular court, which not only creates a chilul Hashem, but is also a violation of the Torah commandment that prohibits using secular courts to settle disputes.
Even in less outrageous situations, disagreements over an estate are not uncommon, and if one side has a possible halachic claim, it adds extra stress to an already tense situation.
All this because someone wanted to make their family’s lives easier after their passing but didn’t know how.
There are halachic ways to distribute an estate to people other than the halachic heirs. And it is no modern invention. It dates back to at least the mid-16th century, when the Rama wrote about the custom of giving daughters a portion of an estate through a halachically sanctioned document called a shtar chatzi zachar.
According to one account,1 Rav Akiva Eiger gave his daughter a full portion of his estate at her wedding to the Chatam Sofer using a shtar zachar shalem.
Such documents are often used today to allow distribution of an estate to include people other than the halachic heirs. However, the method comes with significant caveats.
It might be required to distribute a portion of the estate according to Torah law.
And which particular document you should use depends on other circumstances. There are, in fact, at least five different documents that can effect this change.
So which document should you use?
It’s a complex question with a simple answer: Ask your rav. He is the person best equipped to guide you, either by giving you the proper document, or by referring you to a lawyer who will draw up a will in the proper way.
Don’t have a rav? Use one of the resources below.
Make a commitment to writing your will, and ask your rav how to ensure it is in accordance with halacha, given your specific circumstances.
See our resources below for help.
Bais Horaah Eitz Chaim
Beth Din of America
Rabbinical Council of America
Mechon L'Horaya Halacha Hotline
In addition to asking a question, you can also request a copy of Making a Will the Jewish Way, a booklet published by the Mechon L’Horaya.
The Institute of Halacha at the Star-K
Odenu’s mission is to normalize estate planning and discussions and make them happen earlier so that death draws family closer together, not further apart. Guidance and a free estate planning guide are available at odenu.org
Wills in Accordance with Halacha18:39
DAYAN SHLOMO COHEN
Issues that can arise when a will is not written in accordance with halacha
12:05｜RABBI YOSEF VIENER
Rabbi Yosef Viener is the rav of Kehillas Sha’ar HaShamayim in Monsey, NY, and author of Contemporary Questions in Halachah and Hashkafah.
Rabbi Ari Marburger
A 42-page booklet offering a clear and comprehensive explanation of the halachic issues regarding estate planning and wills. Includes extensive footnotes, with mar’ei mekomos.
A series of articles, published by The Torah Academy of Bergen County, covering a broad range of estate planning topics.
Rabbi Jachter sits on the Beis Din of Elizabeth, New Jersey
Martin M. Shenkman is the principal of Shenkman Law