Part I

As we all know, many Jews in the U.S. have an asset or two in Israel, often a real estate asset, many times a bank account, and sometimes other assets. As an attorney admitted to the bar in both New York and Israel who often engages in this kind of proceedings from my office in Rishon L’Zion in Israel, I know the great confusion caused to those facing the situation. I hope this article (and the next one) will put some order into things, making it easier to cope with the issue. Although it is impossible to cover the entire matter in this one article (or even a few), I hope to give you at least the general outline of the proceedings.

Some people die leaving a last will and testament, or in legal lingo—they passed away “testate.” In their case the final outcome sought is a “probate order.” That’s an order stating that the will they left is valid and should be followed and executed de facto.

Some people die leaving no will (or leaving a defective, and therefore invalid, will: highly unrecommended). The term applicable to them is “intestate,” as in “died intestate.” In their case the final outcome sought is an “administration order,” or alternatively in Israel, an “inheritance order” or a “succession order.”

All probate or administration orders are territorial, or, to use legal jargon—jurisdictional. That means they apply to the assets located in the relevant jurisdiction. In most U.S. states, if you have an original probate or administration order in one jurisdiction (state), you can have it recognized in other states under the full faith and credit rule. Alternatively, if you have an order from a foreign jurisdiction, in many U.S. states you’ll only need an ancillary proceeding, which is shorter and simpler.

In contrast, Israel has no ancillary probate or administration proceedings. Therefore, if you have a probate or administration order from a New York’s Surrogate’s Court (for example, or any other jurisdiction in the U.S., or some other jurisdiction), that won’t help you with respect to any assets the deceased left in Israel, and you’ll have to initiate a new, original probate or administration proceeding in Israel as well.

In the case of foreign deceased persons, the Israeli Family Court held jurisdiction to hear the motion until July 2023. Now it is under the jurisdiction of the Inheritance Registrar.

We covered the two basic scenarios (testate vs. intestate); we know we’ll need a new proceeding regardless of any existing probate or administration order in another jurisdiction; and we know whom to address, but … who is considered a “foreigner” for the purpose of probate proceedings in Israel? That is one of the most confusing points for legatees, heirs and even attorneys. Well, unlike what many people think, it has nothing to do with the deceased’s citizenship or place of death (for instance, if the death occurred in Israel while the deceased was there on vacation). It also has nothing to do with the legatees’ or heirs’ citizenship or domicile. It has to do only with the deceased’s domicile right before the demise. That means that if the deceased used to reside outside of Israel and has the center of his life in such a place, he is deemed a “foreign deceased” for our purposes. That will remain the case if he had an Israeli citizenship, used to live in Israel before, or even used to visit it frequently.

So the deceased is a “foreign deceased”—so? Well, the most important consequence is that the law of the deceased’s domicile is the law applicable to his estate, not the Israeli law (except for cases of renvoi, a term I’ll address elsewhere). That means that if the deceased was a New York domiciliary, his will’s validity will be reviewed under New York law; if he was a New Jersey domiciliary, by New Jersey law. The same will be the case with respect to intestacy rights of his heirs. Differences may exist.

It is worth noting that most U.S. jurisdictions adopted the “Lex Situs” rule, which means that real estate will be distributed under the law of their location. That means that with respect to real estate, the division between heirs (in case of intestacy) may be different than that under New York, New Jersey or other U.S. jurisdiction law.

In the next article I’ll discuss some of the practical implications of handling a probate proceeding in Israel when the deceased is a U.S. domiciliary.

I hope you’ve benefited from this article, and I’ll be happy to be at your service for legal matters in Israel. For any questions and comments, you are welcome to address me at 212-461-1088 or by email at [email protected] or [email protected].