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27 cheshvan 5769

Is a Will the Halachic Way?


Written by the rabbi

Dedicated to the memory of
Asher ben Chaim



SHOULD A JEW WRITE A WILL?
A person's natural tendency is to ignore thinking about whether he should draft a will. After all, considering ones mortality is not a pleasant topic. Some people mistakenly feel that discussing these topics shows a lack of bitachon, trust in Hashem, or can cause bad news. However, it is erroneous to apply either of these concepts in this context, as I will explain:

BITACHON
Bitachon, trust in Hashem, requires a realization that everything that happens is under Hashems supervision and control. However, bitachon does not mean ignoring future needs, and similarly there is no bitachon problem in planning for the eventuality of ones demise (see Shu"t Igros Moshe, Orach Chayim 2:111; Shu"t Yechaveh Daas 3:85; Shu"t Kochavei Yitzchak 1:22, the latter two each quoting several other poskim). Many great tzaddikim purchased their shrouds in advance to remind themselves not to be vain, and to serve Hashem wholeheartedly every day. Similarly, when approached from the proper Torah perspective, drawing up a will can also accomplish that one serve Hashem with ones total heart.

AL YIFTACH PIV LSATAN
The concept of "al yiftach adam piv lsatan" literally translates as, "A person should not open his mouth to accusation," and means that one should not say something that might cause evil to occur (Berachos 19a). The Gemara provides the following example of this principle: A person should not say, "I sinned a lot, but Hashem has not punished me" (Berachos 19a), since this admission that one deserves punishment provides Satan with ammunition to accuse in the Heavenly Tribunal. (For further description of this concept, see Derech Hashem by Rav Moshe Chayim Luzzatto, Part II, Section 6.)

Some people misunderstand that discussing posthumous arrangements is included in al yiftach adam piv lsatan. However, there is no halachic foundation for this position -- quite the contrary; evidence demonstrates that this concern is unfounded. For example, the following halachic discussion demonstrates that such apprehension is misplaced: The poskim dispute whether one may dig a grave on Erev Shabbos for a person who is still alive, so that he can be buried before Shabbos if he dies Friday afternoon. Most authorities permit opening the grave (Beis Yosef, Bach and Gr"a to Yoreh Deah 339; Mishneh LaMelech, Hilchos Aveil 4:5), whereas those who forbid it do so out of concern that it will distress the sick person should he discover that his grave has already been dug (Shu"t Rivash #114). However, none of these authorities mention any concern about al yiftach piv lsatan. Furthermore, some explicitly permit a healthy person to dig his own grave, prepare his own shrouds, and for a living couple to purchase adjacent burial plots (Rivash). Thus, we see that neither bitachon nor al yiftach adam piv lsatan preclude drafting a will.

SO SHOULD I?

The previous discussion explains why there is nothing wrong with drafting a will. But are there any benefits?

Before answering this question, one should clarify what would happen if one left no legally binding will. For example, who becomes the legal guardian of ones minor children? The law may prescribe a very different solution than what one would want to happen, with potentially catastrophic results. After discovering this possibility, the need to have a will usually becomes obvious.

Another question to resolve is what happens to ones property if one leaves no will. Each state has different laws determining who takes possession of the property of someone who dies without a will. One thing is virtually certain: The division will not follow halacha. Probably probate court will award part of or the entire estate to someone who is halachically not entitled to it. Since there is no reason to assume that the halachic heirs should want to forgo their rightful ownership, someone will receive property that is not rightfully his or hers.

SOME YERUSHA BASICS
In order to understand why the wrong person ends up with the property, we must first understand who should be the halachic heir. Many people are surprised to discover that halacha distributes inheritance very differently than modern legal procedure does. Here is another good lesson in bitachon, the realization that my assumptions of right and wrong are often created by the society I live in, and may not reflect what the Torah wants!

According to Torah Law, property is bequeathed as follows: Sons or heirs of sons inherit everything, even if there are daughters (Bava Basra 115a). (Yes, this means that a granddaughter who is the daughter of an already deceased son inherits Grandpas estate ahead of Grandpas own daughter, an anomaly that the Gemara itself notes [Bava Basra 115b].)

If there is more than one son, the fathers bechor, firstborn son, receives a double portion in much of his fathers properties, but not his mothers. This means that if there are three sons including the firstborn, the property is divided into four portions, and the firstborn receives two. (Who qualifies as a bechor for these laws, and in which properties he does or does not receive an extra portion, are topics for a different time.) If there are no sons or heirs of sons, then the daughters inherit, and if there are no surviving daughters, then their heirs do (Bava Basra 115a). If the deceased left no surviving descendants, the father of the deceased is the beneficiary of the entire estate (Bava Basra 108b). If the father has already passed on, then the paternal brothers inherit; if there are no brothers, their progeny are next in line. If no brothers or offspring survive, then paternal sisters and their children are the heirs. If the deceaseds father has no surviving progeny, then the deceaseds paternal grandfather and his descendants become the beneficiaries, again following the same pattern.

HUSBAND INHERITING
There is one major exception to these rules of yerusha a husband inherits most assets of his deceased wife. (Again, I will leave the exceptions for a different time.) This is true even if she has children, and even if her children are from a previous marriage. There are many ramifications of this rule, which can certainly be the subject of a full-length halachic/legal treatise, and certainly reflect a very different hashkafah perspective on fiscal decision making than what is politically correct in todays world.

DAUGHTERS
Although daughters are not heirs when there are sons, minor daughters receive support from their fathers estate. In addition, the estate provides for the wedding and related expenses of all unmarried daughters. Beis Din estimates the amount of these gifts based on the fathers means, and how much he provided when alive for older sisters weddings (Kesubos 68a; cf., however, Tosafos, Kesubos 50b).

A widow does not inherit from her husband; instead, her late husbands assets provide for her until she shows interest in remarriage. At that time, she may collect her kesubah.

PATRILINEAL RELATIVES
Note that all halachic heirs follow the fathers line and not the mothers (Bava Basra 108a; Shulchan Aruch Choshen Mishpat 276:4). Thus, if an only child whose father is also an only child died, his heir will be a cousin on his paternal side, and not his closer relatives on his mothers side.

Yankel (not his real name) once asked me the following shaylah: "My half-sister, who is my mothers daughter, passed on, leaving all her property to her caretaker. The family members are contesting the will, and would like me to join their lawsuit. May I?"

I pointed out that there is no halachic point in his participating in this litigation, even if Beis Din authorized the suit. Even assuming that the will is indeed worthless, Yankel has no halachic claim to the money, since only relatives on the paternal side have halachic claim to the estate, and he is related on her mothers side. Therefore, any properties he receives would actually belong to someone else. In this instance, bitachon must teach one that although civil law may consider the property to be yours, the ratzon Hashem is that to keep it is stealing!

CHOOSING ONES HEIRS
According to civil law, a person may choose his heirs and thereby distribute his earthly wealth after he passes on. However, according to the Torah, a person cannot technically choose his heirs, nor distribute property after his demise. When a man dies, the Torah instructs who owns his assets according to the laws of yerusha presented previously.

If a person cannot create his own heir, does this mean that it is impossible to influence who eventually receives his assets? No, since there are several halachically acceptable methods of transferring property to someone who is not a halachic heir. Most of the methods take affect by creating some form of gift while the benefactor is still alive. Exactly how each method works, and the relative advantages and disadvantages of each approach, is a complex topic beyond the range of this article. Certainly prior to finalizing a will drafted by an attorney, one should ask ones rav whether there are any halachic concerns with the wills goals and what needs to be added (or changed) to validate it halachically. It is even better to speak to ones rav before drafting the will for direction about some of the halachic issues involved.

Let us now examine the second question I raised above:

MAY ONE DISTRIBUTE ONES ESTATE DIFFERENTLY THAN WHAT THE TORAH INSTRUCTS?
Granted that one can change how ones estate is divided, is this the correct halachic procedure? Does the Torah require us to follow its yerusha laws or are these merely default procedures if someone made no other provisions?

We can answer this question by analyzing the following incident:

"Rav Papa was negotiating a shidduch for one of his sons (he had ten) with the daughter of Abba Soraah. When Rav Papa traveled to discuss the dowry Abba Soraah would provide, he was accompanied by Yehudah bar Mareimar, who declined to enter Abba Soraahs house. Rav Papa invited Yehudah bar Mareimar to join him, but Yehudah bar Mareimar resisted the invitation.

"Rav Papa then asked Yehudah bar Mareimar, Why do you not want to join me? Is it because you feel that my negotiating violates Shmuels ruling, 'Do not be among those who transfer inheritance, even from a sinful son to a good one, since one never knows perhaps the bad son will raise fine children.' Following Shmuels ruling, one certainly should not transfer property to the daughter that should go to the son. 'However, continued Rav Papa, this is not a correct application of Shmuels rule, since there is another rabbinic ruling of Rabbi Yochanan quoting Rabbi Shimon ben Yochai that encourages people to provide substantial dowries for their daughters.

"Yehudah bar Mareimar responded, Indeed Rabbi Yochanan ruled that we encourage men to provide their daughters with dowries -- but we do not pressure them to do so" (Kesubos 52b- 53a).

We can derive several principles from this passage:

1. One should provide for ones daughter in order to encourage her marriage, even when this reduces the amount available for inheritance.

2. One should not pressure someone to provide a substantive dowry for his daughters shidduch.

3. Although one can disinherit an heir, Chazal discourage this practice even if the heir is an evil person since he may have righteous children who should not be deprived. One is certainly discouraged from transferring the inheritance to someone who is not a halachic heir at all.

The Shulchan Aruch codifies this last rule: "The Sages are displeased with someone who gives away his property to others and abandons his heirs, even if they do not treat him properly (Choshen Mishpat 282:1; note comments of Sm"a, and Shu"t Chasam Sofer, Choshen Mishpat #153)."

The authorities dispute whether this prohibition applies only to the testator or includes even others who assist him in transferring the inheritance. According to the Chasam Sofer, a rav who teaches how to transfer inheritance violates this rabbinic prohibition! (Shu"t Chasam Sofer, Choshen Mishpat #153; cf. Shevet HaLevi 4:116, who quotes authorities who disagree.)

SHTAR CHATZI ZACHOR
An old custom, dating back hundreds of years, was to draft a shtar chatzi zachor, which provided daughters with half of what their brothers inherit. (The words shtar chatzi zachor mean a document providing half that of a male child.) Several early authorities approve this practice, even though it transfers property from the male heirs, because providing for ones daughters enhances their chance of finding suitable shidduchin (Shu"t Maharam Mintz #47, quoted by Nachalas Shivah 21:4:2). Although Rabbi Shimon ben Yochai, quoted in the above Gemara, encouraged only providing a dowry to ones daughter and made no mention of inheritance, these poskim contend that knowing that she will eventually inherit also entices a potential groom. (However, note that Shu"t Maharam Rottenberg #998 disagrees with this approach, implying that he would object to the practice of shtar chatzi zachor.)

CONTEMPORARY PRACTICE
It is now common for wills to provide equally for all children, both sons and daughters and to ignore the bechors double portion. Contemporary poskim suggest that one should follow whatever practice is necessary to avoid a machlokes developing because of unrealized expectations, and advise asking a rav for direction (Gesher HaChayim, 1:8; MiDor LiDor pg. 36). Many authorities recommend that one set aside a small amount of property to be divided according to the laws of yerusha (based on Tashbeitz end of 3:147, quoted by Ketzos HaChoshen 282:2).

The Gesher HaChayim records a story of a talmid chacham who wanted his estate divided exactly as the Torah instructs, legally arranging that his bechor should receive a double portion and that only his sons, and not his daughters, should receive inheritance. Unfortunately, the result of this distribution was a legacy of machlokes that created a tremendous chillul Hashem. For this reason, the Gesher HaChayim recommends that a person divide his estate among his children in a way that maintains shalom.

ABANDONING HEIRS
Other than the two reasons mentioned above, (1) encouraging for daughters shidduchin, and (2) maintaining harmonious relationship among family members, halacha frowns strongly on disinheriting the rightful heirs in favor of those who are not, and even disapproves of providing more for one heir at the expense of another (Rashbam, Bava Basra 133b). In order to explain this better, let us examine the following case:

Mr. Rubinstein, who has no children, would like to divide his estate equally among all his nephews and nieces. However, only some of his nephews are his halachic heirs, those who are sons of his brothers. The nephews who are sons of his sisters are not halachic heirs, nor are any of his nieces. If Mr. Rubinstein divides all his property among all his nephews and nieces evenly, he has violated Chazals concept of not transferring inheritance, since he has given away his halachic heirs portion to those who are not his heirs.

Note that in this case, the two reasons that permit transferring inheritance do not apply. Mr. Rubinstein is not obligated to provide for his nieces marriages nor is it likely that limiting his will to his halachic heirs will create a family dispute. May Mr. Rubinstein give most of his estate to his nieces and sisters sons as long as he bequeaths some according to the laws of yerusha? The halachic authorities debate this question, some maintaining that one may give a large part of ones estate to those who are not halachic heirs provided that each heir receives some inheritance. According to this opinion, Mr. Rubinstein may dispose of his property any way he chooses, provided he leaves part of the estate according to the laws of yerusha.

Other authorities prohibit any action that deprives the halachic heirs of their rightful portion (Shu"t Chasam Sofer, Choshen Mishpat #151). Furthermore, it should be noted that the prohibition against transferring inheritance applies even when the heirs are not his sons (see Shu"t Chasam Sofer Choshen Mishpat #151; Aruch HaShulchan, Choshen Mishpat 282:3; Shu"t Shevet HaLevi 4:116).

TZEDAKAH
Is it considered abandoning ones heirs if one bequeaths sizable amounts of ones estate to tzedakah?

Some authorities contend that it is not, and one may leave even ones entire fortune to tzedakah. The reason for this approach is very interesting.

A person has no obligation to acquire assets in order to fulfill the mitzvah of yerusha. Furthermore, one has the right to use up all ones financial resources while alive in any way one chooses and leave nothing to his heirs. After all, as owner of the property he is free to do with it as he sees fit.

Donating tzedakah, reasons the Chasam Sofer, is using money for oneself, since all the merits accrue to the donor. Just as one may use his resources for himself however one chooses, so one may donate all the resources that he will no longer need to tzedakah without violating the prohibition of transferring inheritance. The Chasam Sofer reasons that this is equivalent to the testator keeping the property for himself since he receives all the reward for the tzedakah he gives (Shu"t, Choshen Mishpat #151). (From this perspective, you can take it with you!!)

However, although some earlier authorities (Rama, Yoreh Deah 249:1) concur with the Chasam Sofers conclusions, others contend that one should limit his tzedakah bequests to one third or one half of ones assets (Rabbi Akiva Eiger ad loc., quoting Sheiltos; Chachmas Odom 144:12). Still others feel that one should not give substantial amounts of tzedakah at the expense of the heirs unless the heirs are acting inappropriately (Shu"t Maharam Rottenberg #998).

CONCLUSION

It is important to realize that one's legal rights and responsibilities are not governed by secular law. A Torah Jew realizes that Hashems Torah is all-encompassing, and that it directs every aspect of ones life. Thus, one should discuss with ones rav all aspects of the important shaylah -- how to draw ones will.



This Shiur is published also at Rabbi Kaganof's site


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