Many people decide against having a last will and testament. They do not want to think about what it implies. Putting one’s head in the sand can be disastrous. A person who dies without a will is considered “intestate.” In the absence of a will, state laws determine how a decedent’s property is to be distributed. In Florida, Florida Code Section 732.101 et seq. delineates the persons who are entitled to receive probate assets (after the payment of claims, debts, taxes and expenses). Having a will helps ensure that you decide who inherits your property, and not the state.
What should you do if you wish to execute a will? Seek out a qualified lawyer to ensure that your will is correctly memorialized under the laws of your state, in this case Florida. Failure to create a will that satisfies the requirements of Florida law could result in a court finding that the document is void and unenforceable. One of the most important aspects of these requirements is proper signing and witnessing of the will.
The next piece of advice may surprise you. Before drafting your will, it would be advisable to pass it by your rabbi. The reason it makes sense to consult a rabbi is that while many people are familiar with the basic requirements of Jewish law as it relates to holidays or kosher products, far fewer individuals remember to consider Jewish law when deciding how to apportion assets upon death.
The Torah addresses many civil law issues including the laws of inheritance (see Numbers 27:6-11 dealing with who inherits, under what circumstances, and in what order). A potential conflict arises when a person wishes to have property divided after death in a manner that differs from the biblical injunction.
A rabbi can suggest how to best structure the planned transfer so that at least the technical requirements of Jewish law are not abrogated. Part of the solution involves adding a clause to the secular will stipulating that so as to satisfy the strictures of Jewish law the assets should transfer to the heirs as a gift in the moment prior to death. This language is included because Jewish inheritance laws do not restrict a person’s ability, while alive, to distribute assets however the person chooses.
Secular and religious laws of inheritance and will writing can be complex, and a much longer article would be required to treat these matters in depth. Raising this topic will hopefully create greater awareness of this issue and also encourage attorneys to discuss with their clients the option of drafting “kosher wills.” In this way, more people will be able to effectively protect and bequeath assets within a framework that also respects and honors our Jewish legal traditions.
Rabbi Yelenik is a member and founding partner of the civil practice law firm of Yelenik, Lisbon & Associates. The firm has partners and associated attorneys holding bar membership in Florida, Georgia, Maryland, New Jersey and Israel. Jacalyn Scott, Esq., provided research for this topic drawing upon her background in elder law and wills and estates. For further discussion and comment please call 786-449-6238 or write the author at firstname.lastname@example.org. Nothing in this article is intended to serve as nor should be relied upon or considered to be in any way legal advice.Rabbi Daniel Yelenik
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