This is the most common question I am asked at kiddush, after, “How is it being back in Englewood, 25 years after you made aliyah?” The answer (to both questions) is not so simple.

Since I came to Englewood three months ago and started reading The Jewish Link, I have read many informative articles about wills and intestacy, trusts, prenups, postnups, real estate and other U.S. and Israeli legal matters.

In a series of articles, I hope to provide you with further background and understanding regarding these and other issues and to provide some guidance about popular solutions for various situations. Of course, everything I write is general and not case-specific and therefore should not be relied upon as legal advice.

Now back to this week’s question.

The first issue that needs to be addressed is whether you have a will here in the U.S. As others have written before me, if you don’t have a will, the rules of intestacy apply. Each state has its own rules of intestacy, so the question of which law applies is crucial. In general, the laws of the state where you are a resident when you pass away will be the law that governs your estate. However, if you own real estate in another state, then there is a good chance that the intestacy laws of that state will apply to your real estate.

In New York, if your spouse and children (from that spouse) survive you, your estate will get split 50-50 between your spouse and your children (plus an additional $50,000 to your spouse). In New Jersey, your spouse would receive the entire estate.

Most people who come to see me in Israel assume that the Israeli rules of intestacy are that the surviving spouse receives the entire estate (like New Jersey). However, the Israeli rules of intestacy are similar to New York, where the surviving spouse and the surviving children each receive 50% (there are some exceptions).

In my experience, most spouses/parents don’t want to leave their surviving spouse owning part of a home together with their children. Often the surviving spouse wants to sell the home and move to a smaller apartment or one more suitable for the needs of an elderly individual but the children object since they want the home to stay as the family’s vacation home. And, sometimes children want the parent to sell and move to a smaller place, while the surviving parent does not want to move. So, leaving matters to the rules of intestacy is usually not a good idea, especially in Israel.

I hope that you now understand the importance of having a will for both your U.S. assets and for your Israeli assets. The question then becomes, “If I already made a will with my attorney here in the U.S., does it cover my Israeli apartment (and bank account) or do I need a separate will for my Israeli assets.”

The answer is both yes and no.

While your U.S. will would most probably cover your Israeli assets, since most wills refer to “all of my assets, wherever located,” and while Israel would accept a will validly executed in another country, there still may be complications.

For example, wills drafted in the U.S. rarely list any identifying numbers or details of the testator (the person making the will) and the heirs. In Israel, a valid will must include the testator’s Israeli ID number or some other identifying number. This is not only because there are thousands of Sarah Cohens and Yaakov Levys in Israel. If your heirs probate your U.S. will in Israel, they will be required to submit various affidavits (which will need to be notarized and receive an apostille stamp) proving the identity of the testator and of the heirs.

In addition, to probate your will in Israel, your heirs will need to submit the original will. Since the common practice in the U.S. (for various good reasons) is to sign only one original copy of the will and that one original will is usually submitted to probate here in the U.S., your heirs will have to file an additional request in Israel to accept a certified copy from the U.S. court (with an apostille stamp added) together with several affidavits (notarized and apostilled) in place of the original sill.

For the benefit of your surviving spouse and for your heirs handling the probate of your will, I therefore recommend a separate Israeli will.

In the coming articles, I will delve a little deeper into this topic, including the implications for the Land Registry and other topics related to your assets in Israel.

Andrew Treitel, Adv. TEP, is an Israeli and New York lawyer based in Tel Aviv who is spending this year in New Jersey. He is available to discuss the issues raised in this article or any other Israeli-law related matter at [email protected].