The Will In Halacha - Rabbi Ari Marburger

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out the envelope she sees there's a note from her husband and it's addressed to her and it says dear spencer if you're reading this note it means that i'm no longer with you i know how difficult it must be this first pesach and therefore i want one to cheer you to cheer yourself up a little bit buy yourself something nice for yantev and there were two thousand dollars of cash sitting in the envelope you can imagine how touched she was and the next day on her way to the jewelry store she was telling over called her brother to tell her how about what happened and how thoughtful her late husband had been and her brother listened to the story and then said wait a second not so fast who says this cash actually belongs to you are you so sure that you're entitled to spend it and buy yourself jewelry we all know as a matter of halacha the children are are the arsham your husband left no will there is a note is that opinion is that it's alva is that a legal will perhaps not perhaps the money actually belongs to your children they're minors they cannot even be michael so it may not be permissible for you to go by yourself with this piece of jewelry this is a real problem in halacha now before anyone gets too outraged about this story let me assure you it never happened but nevertheless this anecdote illustrates a few points about hillcocha the first is what a person might want to happen to is this estate if he doesn't execute the appropriate will the appropriate sava may not actually be enforceable or holologically permissible it shows also that doing what seems fair and what's right may not be what's motor or what is legal it's two very very different questions it also shows that when it comes to hokus russia and state and state state matters it's almost never about the dollars alone there's a lot of emotional baggage that comes along into any question and preparing appropriately can save a tremendous amount of stress and aguasnetfish in the future and lastly perhaps it shows that you can have a terrible heart-wrenching situation which could have been completely avoided and resolved with just a little bit of planning and a little bit of foresight so with that in mind i'd like to spend tonight to walk everyone through some of the basics of hiluko surusha we'll begin with the seder hayarusha what happens if a person dies intestate without any salvo with any halogen binding will how the estate is divided we'll then focus a little bit about actual estate planning the permissibility and how one changes the the default sata urushi in in aloha and we'll end off with just some practical advice on halal things to keep in mind how when a person is setting up his estate to try to minimize mach like us so let's begin with a sader high russia if a person dies he has no will he has no salva he has no specific instructions so halakha has a cedar high russia a way in which the assets are divided now before we go through what the state arusha is a brief comment about what it is not it's not politically correct the state of hai russia is not consistent with western liberal values there's just no way around that fact it's mishpat and in truth whenever we come across a halacha that doesn't seems inconsistent with with the values of the society around around us it certainly should give us pause about the real um utility or the appropriateness of some of those values but what's interesting is that the state of hyurusha has been not been politically correct for at least a thousand years the chubus rush discusses a case where someone had asked him for help working out an estate plan that was different than the halal default apparently back then it was stylish to give everything to your buchar to the oldest son and completely cut everyone else out of the the estate kings or monarchs did not want that when they passed away their kingdom would be divided among all their children so they would give everything to the eldest child he would become the king he would usually wipe out the rest of the family and there was no division of the assets the rush was asked to devise a similar estate plan and he writes in very strong language i see that you're that you're trying to copy the ways of the gentile society around us if that's your intent i want to have nothing to do with this and he declined to get involved and to assist in that estate planning so what is the state of hyurusha if a person passes away in halakha his sons yarishan the entire estate if he has sons and daughters it all go is divided among the sons now interestingly a wife is not a you irish mina tyra a woman does not inherit her husband this is one of the most significant differences between the al-aqsa stadius and lahavdil the legal plan distribution of assets but legally a wife does it does the irish in a portion of it there are statutory minimums she cannot be cut out as far as how lucky a woman is not a yogurt the converse actually if the woman pre-deceases the husband the husband does harsh in her but in general as we will we will see the senior hyusha follows the mail line the assets generally stay within the shavit so if a father dies he leaves over sons and daughters this the estate is is is divided among the sons grandchildren receive nothing if their parents are alive it's simply not your shim it goes to the sun's it's only if one or more of the sun's the pre-deceased the father then that son's children will step in their place their yarsham will step in their place but if the sons are alive grandchildren do not receive anything well it depends if if a person if they if person's son pre-deceases him if he has sons then the grandsons were yours if he has only daughters then that daughter will step into her father's shoes and receive a share of the estate so you know in theory if a person has a son and a daughter the son dies first and leaves over a daughter that daughter will will get the entire estate now if a person dies without any children without any sons and and without any daughters then the uruguay flows up a generation it goes to his father if his father is no longer alive then his father's yarsham his father's children first the sons um if he has any if he has no sons then his daughters will step in their place we'll do the we'll receive the the the estate uh if the father has no yarsham you know the deceased le has no brothers sisters nephews or nieces or anything of the sort then it goes up a generation to the grandfather grandfather presumably is no longer alive but from the grandfather it flows to his yarsham so ready we're dealing with cousins and second cousins etc now if you go up far enough every jew is related if you go back to yakovino we're all distant cousins and therefore eventually a yo-yo will be fine will be found so essentially when a person dies a wife is not irish um it goes the person's sons are the ocean or if he has no sons it's his daughters um again if any of the sons or daughters predecease them it goes to their children if if there are no your underneath him it goes up in generation and then to the side et cetera until a yo-yo is found now a there one other important is the concept of if the first born child is a male he's able and he was born naturally a someone who is a born via see a c-section does not have a din of bakarala nakhla but a bachara nakhla receives a double share he receives pishnayam which means if a person has two sons the state will be divided into three portions the bachara will receive two or two of the portions the parasite the regular sun will will receive one of the portions that means the will will get pishnayam if you have three suns you'll do the same you'll divide the estate into four into four portions the car will get two of them or half of it and the other two sons will will receive the remaining half 25 percent percent apiece now this is the the the default seder haya russia if you will now based on this there is an assumption that if a husband dies the wife is left penniless she's not a your ish she receives nothing now for a number of reasons for a number of practical reasons this is not true and the reason is the reasons ours is following the first is we're discussing you russia when a person dies he no longer you know you don't take your wealth with you this these states ha the the assets have to be divided among the arsham and the state of haiyurusha tells us who the yoshimar but many people especially if they have a more modest estate the bulk of their wealth will be tied up in their house where they live many couples their house is un jointly owned by both the husband and the wife if that's the case they're partners in the house 50 will belong to the husband 50 will belong to the wife this has nothing to do with hillcochia in such a case where where the house is jointly owned and we're going to assume it's a 50 50 partnership then the wife will is entitled to happen fifty percent of the house not as in ilkhos yerusha but simply because she is a partner in this asset we're getting there okay um so that's why in in practical sense as long as she's on the net now there is sometimes a debate sometimes one spouse will say was really in my house it was on your it was put under your name to qualify for bank financing for tax reasons whatever that may be we have all sorts of interesting and somewhat acrimonious dna tyre about it but the end result or the default assumption is this is going to be owned fifty percent by each regardless of hilkarusha it was it was it's a montana essentially where it was put up by putting it under her name it's essentially giving her a gift of half of the house now that's the house what about the bank accounts many people have bank accounts or their joint accounts as well now here perhaps there's even a stronger argument um but the idea the idea being that first of all by putting creating a joint account and depositing funds into this joint account there's a very strong argument that essentially you're making both account holders partners in in in in the funds now here it's a little bit different they're they're in in two ways the first is depending on which state you live you live in it's not necessarily 50 belongs to the husband 50 percent of the wife there it could be a tendency in common or where each of them owns the entire amount where in which case you can make the argument and it's an account really any account with rights of survival the argument can be made that in such an account when one person passes away the account is structured where the entire account passes over to the survivor by operation of law it doesn't go through probate it's not you know nahim considered a form of urusha or or inheritance it's simply operation of law of law because that is what how the account is structured to begin with and therefore therefore argue arguably there is a kenyan mechaim to have that whoever survives will own the entire asset on top of that makes a fascinating technical argument and that is when you own a house that's an asset that belongs to the owner belongs to the husband belongs to the wife a partnership whatever it may be when you deposit funds in a bank what you're really doing is you're lending the the funds to the bank now when you lend the funds to the bank there are certain terms to this loan and the terms of the of a joint account are that the entire amount should be paid to the surviving spouse if that's the case forgetting about hellhouse russia forget about whether there's a good kingdom this bank which for argument's sake will assume is a non-jewish bank took money and agreed to pay the surviving spouse the entire balance they're going to do that nothing to do with hillary and therefore there's a strong argument that money in a joint account certainly 50 will be hers um arguably if there's she's the their rights of survival arguably she'll be entitled to the entire amount eve regardless of the fact she is not a halal kirish now a similar dynamic would come into play with life insurance if a person buys life insurance and let's keep it simple we'll talk about term term life insurance so they're assuming the wife is is the named beneficiary he'll serucha is irrelevant no one yarshins the the death benefit the death benefit is simply a contract that the insured pays the insurance company and the insurance company contractually obligates themselves then the event of his death they will pay this benefit to the named beneficiary that's not to do with russia so whoever is named as the beneficiary will be entitled to it regardless of whether or not they are classified as a irish so the first point is although people walk around this idea they're in halacha the wife is not a irish and therefore she ends up with nothing for many the way finances are structured in many families she will before you even begin discussing helpless russia she will be entitled to at least half and sometimes substantially more than the estate well to the extent that the house belong half of it belongs to her you can write a will to give away your assets you can't write a will how to give away your wife's assets so to the extent that something belongs to her or will will not have the ability to change that now okay good okay good question good question and if they get divorced these are all sorts of dna he could no no he could he certainly he certainly could no no no he certainly certainly certainly could the question is whether that's the intent if he gives her a gift and then they get divorced sometimes he has a claim for her back he gave it to her while they were married but he certainly could and if he does then then it's given now okay you know what give it give give a gift to his wife right now this is this is the first point that the way the way people's finances are structured the woman usually owns a a good chunk but there's another point which also has a tremendous impact and that is we're all familiar with the concept of a cusuva when you get married there's a kusuba which entitles the wife to 200 zuz when if they get divorced or or or if she becomes a widow however there's another token and that is that when a when when a widow is entitled to support from the estate until she remarries or claims the ksuba now what that means is in practice although 200 zoos is not an awful lot of money it's a question of exactly how you value it you know ten thousand dollars is probably is is a rough approximate approximation of what it is that's if she demands the super if she doesn't ask for the ksuba she's entitled to support from the estate she's entitled to missonus she's not to food entitled to a place to live she's entitled to cleaning help as she's entitled to some of her medical bills before daily kitsu um and that ends up being a pretty substantial sum so although in hilchosurusha she's not entitled she doesn't yarish in the underlying assets but nevertheless she is entitled to lifetime support from the estate and therefore her needs are taken care of even though as a matter of fact she's not a yaris now in more modest estates this will very often eat up the entire you know if she survives him and she lives a while longer and she doesn't remarry this will essentially eat up the bulk of of of the estate but what really happens is is that the woman is taken care of for life her needs are almost all of her needs are covered the only thing that she cannot do because she's not a your ish is she can't give away the assets the underlying assets aren't hers to start giving away to her favorite anecdote giving away nice hanukkah presents so to the extent that she she doesn't have assets in the assets were not under her name in her lifetime and she's relying on support she won't be able to give away the assets she gets remarried she will not be able to take the underlying assets with her but nevertheless is until she gets remarried her needs are more or less taken care of from from from the estate again regardless of hillary russia so this is a good example of while if someone opens up a hamish and just concludes that the wife is not a irish she ends up penniless destitute and on the streets in practice because of the way things are set up she will end up with a very large chunk chunk of the estate and what's fascinating is is in more affluent estate planning very often this is really what's the way what's set up bidding him money is put in a trust where the income is there for her support and and maintenance but the underlying assets are very often kept in this in the trust with the expectation or where the idea that after she passes away or if she remarries the bulk of the estate is still there for the the testator's children and won't be passed along to a a a a second marriage if you will now this is as far as the the the rights of of of a woman the bihar as well the in practice is much more is much less clear than it sounds like in theory and that is although bakar gets peach nym although he gets a double share that only applies to assets that are there are tacos they're music they're they're takas yada he has he is in physical control of on the other hand an asset which is roi which is it's debt that's owed to him that he'll receive in the future there is no din of pishnaya now in practice if the deceased had you know diamonds or owns real estate that's muksak that's a hard asset that he owns and the bakara would be entitled to peach and i am he'd be entitled to a double share what's less clear is what about money in the bank when you have when you when you have funds that are in in a bank account we think about it as a deposit people think about it as i have money in the bank in reality that's not true there's no dollar that belongs to me essentially when you depos when you put money into a bank account you are lending the funds to the bank it's owed back to you now it's collectible at any time the bank is a very secure borrower you have a lot of confidence that they'll pay and if not the fdic stands behind them but at the end of the day it is a loan it is an obligation the bank has the account holder and therefore the argument can be made the bachara would not get p shnayam for money in in a bank account it's only a a hard asset now you can you can you know if you have a jewish bank things get even more interesting jewish banks we all know there's an issue of ribbons cannot charge interest they have to risk if you ever if you ever actually read through a heteriska what it says is is that half of the deposit is a loan which alone is not subject to patient i am half of it is a picotin where the bank holds this money and invests it on your behalf ap coding is something which is considered moksik although you you're not physically holding it but if it's yours then it should be subject to pishnayam uh so arguably if you deposit money in a non-jewish bank the bihar would not get his double share in any of the funds it's all alone on the other hand a jewish bank that has operates with hatariska the bahrain would get his double share on the capital not on the ghetto camouflage now in truth this analysis can get a little bit more complicated um and that is what is the bank doing with your picada banks lend the money that means your piccadoin was in turn given out to another borrower with a heteroscope which half of your recovery then turns into a loan to the to the bar to the to the bank's borrower so again i don't want to get too far into the weeds but really what should come out is that a deposit in a non-jewish bank has no peace and i am a deposit in a jewish bank with a heteriska there would be peace nyam on one quarter of the deposit uh now and this is just a good hmm it's true you would have you would have to make adjustments for reserves you'd also have to make adjustments for non-jewish borrowers so to the so so this is a good example of if you go if takes his brothers to an entire which again i'm not advocating but if that does happen and you get up stock where the besden you know gave the bahar an extra 3.76 percent of the assets and you walk out like how could the best and do this they don't know simple math piston i am a little bit more complicated than that especially in in today's world um so this is the this is the the idea the the the concept of of what he does get his double share in and what okay so stop stocks are arguably should be a partnership if we view it stocks as a great partnership where when you own a share of microsoft you are you own one billionth of the company so to the extent that you own a company that is something which is you know it shuts this is music no one owes you anything and therefore in a simple understanding of stocks there should be a piece nyem where things get more complicated is really twofold they're open on jabbas they're charging interest how can you own stocks of any company that's engaged in devarum surum and the answer is is that the people are signed up on the ig on the famous igras moshe evan evans in zion that writes that when you when you invest in a public company and you own a minimus amount of shares he says that's not a real a true partnership you're just buying the rights to future dividends capital gains whatever it may be you don't really you're not a real partner in the underlying asset and that's why you don't have to worry about the majors or any of the underlying isurim these these companies are are being over now now if we if you if you if you if we take that analysis to the end that you are just buying the rights to future dividends that's roy and then there should be no peach schneider so if you're being similar with moisture and saying i don't have to worry about shabbos ribbons tireless or anything because i don't really own the company i just have rights to their profits then at the same token you shouldn't be entitled to a peach schneider rev radical roth actually has has a little bit of a of a different different out view when he says really means a debt that you're going to collect stocks which are true the stock itself is traded he says would be different again if it's not complicated enough i'll just add that if you have a margin account the stocks that you think you own may not exist your brokerage can short sell them and it can and and sell and it can lend them out you have no idea whether your stocks are actually there and there's real you know there's no real way to track it and this is again it's it's another example of how if someone dies without any sort of estate planning and beznin has to sort out what pischenaem is it's a nightmare because there are so many you know detailed and intricate questions that you know it's just impossible to really to really [Music] well know i would argue that when you when you when you have an asset you take out a mortgage it's yours there's a shibuya there's there's there's some sort of debt i mean i don't know what state you're from there's the lien theory and title theory of mortgage but today in most most states it's it's really just a lien against the asset it belongs to the belongs the owner so i don't think that analysis would be correct so this is the the default cedar high russia now i would if i had to hazard a guess people in this room i hope each and every one of you has a will um probably it is not consistent with this seder hyusa and this raises two questions the first point is it highlights the danger of a person that does not write a will because if a person dies without a will as a matter of how local what happens to the assets they get divided the way i just described it as a matter of law what happens to the assets it follows a whole different set of rules there's no idea of pishnayam there's no there's no priority for a son over a daughter none of this exists which means that you go that what you'll have is a terrible situation you'll have a situation where in halacha the asset will belong to one person legally the judge will distribute it to someone else one of two things has to happen either the legal beneficiary has to have the gevorah sanefesh and the presence of mind to say you know what i'm not entitled to the to these funds and go ahead and the sister go the sister going ahead and give over her entire urusha to her brother who is the halaq the alternative is they can be thieves they can keep the money that they're legally entitled to but as far as it's not theirs it's simple gazella and it's simplexayla and the ones that if you're not a irish and you're keeping these funds you're simply robbing your brother son whoever it may be and the tragedy is that many people work for substantial amount of their lives because they're concerned about the future generations they want to make sure that after their death their family is provided for and they want to leave over as much as they can and all too often what can happen is without planning every extra dime that you've earned is just making one of your one of one of your children into a bigger gun into a bigger gosling which is just it's just tragic on so many levels and it's easy to be avoided a person writes a will let's have all he can take care of it but he does nothing that he's creating a terrible terrible nissanian for his family and just really really creating a what could be a tragic situation so a person decides he wants to change the state of hyurusha he wants to provide for his wife he wants to provide for his daughters is one allowed to do that perhaps the torah says this is how the russians should be divided perhaps that's how it ought to be divided do you have the right to go ahead and change that in other words the question is when the torus says a seder hyurusha is this just the default if a person does no planning or has no will we have to have some way of dividing it so the torah says do it like this or is it more than that or is the torah saying this is the way it ought to be done and it should not be changed so then this is actually a mission mission mission tells us if someone writes his assets to strangers and forsakes his children what he did if it's done appropriately and with the correct kenyan which we'll discuss a little bit later it works person who has assets he has the halachic ability to do with it as he chooses nevertheless the mission writes are not happy with your actions and the mission is making it very clear they say their heist is more than just a default it's more than just okay we have to figure out we have to do something with the assets it's what the torah wants and if a person changes it he has the ability to do so but it's not the right thing to do now the rama actually brings down a fascinating mordekai a woman on her death bed she realized she was dying she her close friend was in the room she hands the friend a sack of gold and says do the best thing possible do the best thing possible with these with this bag of gold and with those words she passed away so if you were in that room what would you do with this sack of gold give it to your favorite stucco yeshiva shule find a worthy cause i know you know what you do with gold give it to the ocean and it's a very simple proof when a person dies the torah doesn't say the queen comes takes the money and gives it to the base of magda tara doesn't say it all goes to yeshiva or to jules tyra says it goes to the ocean so that is the rod sign of the torah then in this case as well what this friend should do is distribute the the the assets according to the seder hiroshi now based on this it seems like all of the estate planners are in big trouble because mr saying it shouldn't be changed so this leads us to the famous cheetah of the eater the is quotes an eater that says the following that true the mission says you cannot cut you shouldn't be cutting out your child and giving and and and giving the assets to a stranger zuck the ether that's when you're completely disinheriting a irish zero he's cut out he gets nothing on the other hand he says if you leave dalai zahoovah if you leave four gold coins to your yarsham there the eater says you're free to do what you what you'd like with the rest of the estate now this ether is a tremendous radish but it's a very very important cooler according to the eater to cut completely disinherit a child that's going to be awesome but if you're not completely disinheriting them you're leaving them at least dollar dehum then a person is free to go ahead and distribute the rest of his assets as he as he sees fit now according to the ether there is would seem to be very uncommon how many people in this room in their wills disinherited the irish anybody probably every single one of you did disinherit a irish why many wills especially the the simpler estate plans have reciprocal wills where the husband and wife both both write that if whoever whoever so that if one of them whoever dies first the surviving spouse gets the entire estate the the second to die then already gets distributed among the children equally now assuming the husband dies first as a matter of halacha what should happen to the estate it should go to the suns if you ride a reciprocal will what happens to the estate it all goes to the widow this is a simple and common case that violates this mission at that point you are disinheriting your children now although the expectation is that when the wife dies at that point the children will receive the russia okay that could be in a year 10 years 20 years right now there's a russia that's taking place and right now in such a will you are completely disinheriting your halal gershom and therefore this is something that should not be done if a person is writing a reciprocal will he should carve out dalai zahuvim he should make sure some assets flow immediately to his yarsham kaffi the seder high russia and again the rest of it if he wants to leave to his wife whatever he's going to do we'll discuss that in a moment but there should always be a carve out where the yorsham and halokem are never being completely completely will isn't disinherited uh tantamount to giving her a gift during his lifetime no because because a will is not effective until death and at that point that's where this havaras nakhla comes in comes into play primarily um so this is again one takeaway is a simple will where where where the wife gets everything if she survives the husband violates the salah there should be a carved out four dollar for dal zehuvin now how much is dollars of him this is not very clear um rav moisher writes it's an amount that has some kashivos you can't just say i'm giving my yorsham 25 cents it has to have some level of kashivas he has three true voices and one one troop of the displeasure is says a thousand dollars is enough the other time he says it should be the house um the other time he is is about a third of the estate it's hard to know exactly what the cases are how big or how small the various estates were um rav oman has achieved where he writes that donald trump if aksuba is 200 zos and that is the living expenses for for one honey for one year dollar zoom essentially is how much a proper would need to survive for one week without his family which revlon writes a hundred dollars is sufficient i guess this is written a long time ago before before covet inflation but be that as it may it's an amount that has some level of kashivos certainly should not be enough that will cause a much loykas but should have a certain amount of hashibas it shouldn't be you know just it shouldn't be an insignificant amount it's a rounding error um again it's hard to give exact numbers and it may it may depend on on on the size of the estate this leads us to the next question the eater says you if you can if you if as long as you carve out dollars of him this is not apply many places can argue this is a tremendous much malicious what is that local missile is it appropriate to go ahead and change the cedar hierarchy or not so what many acronyms say is it depends why it depends why if the reason why you're changing the cedar hayusha is that we just started this year explaining that a widow is not a irish but she gets supported by the estate today that's it's very impractical because we're our butte din are just not set up to service this kind of arrangement what it means is the assets will belong to the estate someone's in charge giving her missinus monitoring to make sure she's getting what she's entitled to if the money is not there selling off the assets in order to support her lifestyle you obviously have to have a judgment call exactly how much that lifestyle is for a woman today to have to go to her children every time she needs to buy food or pay her rent is very you know you can as you can imagine it's very very challenging and not so practical so a person says i want to accomplish what ghazal wanted i want to ensure that she lives in comfort and in dignity and therefore i'm going to leave the dollar to who him but everything else i'm going to leave to my wife so she can be taken care of that's certainly a very appropriate judgment call when it comes to daughters most people do not follow the say they're ayusha most people give their daughters a share of the share of the estate now this is not a newfangled american type of approach the rama brings down there was a what was called the star khati zakar the custom in the times the ramo was to give a daughter half of a share of the estate you know before we get a double share the posture would get one the daughters got half a share now a half a share is still substantially more than what she's entitled to in halakhah so the aquarium explained either they're relying on on on the sheets of the eater that as long as the yorsham are getting something you can do what you want with the rest or they explain the daughters were given this as a dowry in order to help them get married that's one of the obligations of a parent and that's why it became the minute to do that now once we're going down that route once we're relying on the ether or relying on the idea that it's appropriate to do so in order to help them get married there's really no difference in sorrow between zacharias or hershalin and for that purpose for that reason if a person is giving his daughter a full share of the estate because of these reasons because he wants to as a dowry if you will because that's the expectation if he's doing it to avoid macholicus then it's certainly very appropriate to rely on the ether on the other hand if he's doing it as a manner of hashgaffer because he believes in equality and he doesn't like this you know quote unquote discrimination so there we have the khazanish writes you know to go ahead and to start saying that i don't i disagree with the toyota and i want to do things differently it's certainly not the appropriate approach however halakhala maison again when i when i get asked if a person would try to follow cedar usua he will probably have world war three break out on at his uh uh on his cover and it will cause tremendous amount of destroy the family and it's usually a very bad idea you do not want to you know although it is a muslius but minor certainly is to rely on the eater and to go ahead and pull and and pull out a homura where it will cause macholicus and strife in the family you know i don't think is the right place where a person should be mahmur but i'll call upon him you just have to give it some thought if it's you if you're if you're if you're if your motivation is to avoid macholica's great do what you want and do come up with a plan that will work the motivation is the hashcoffee issue of equality then you know that you have to be more hesitant regardless you there's car that should be the sun should get at least some amount more to show that you're following the city russia at least at least at least at least now what when a person is changing we're playing with the cedar high russia the martin shabbat says this is not an issue of a hetero question this is more a point of advice that this tree treating children unequally is very dangerous yaakov vino gave joseph the scientists past him the schwartem these the simple in the homeless as a result of that jealousy if you will the results were a tragic goddess and the mother uses this as an example don't be so quick to go ahead and show any favoritism and give one child more than another now very often people will say that one child is very successful he doesn't need the money the other one is less successful and therefore i want to give him a larger share of the estate now that's a very appropriate thought pattern but you have to know your family some families this this is accepted and understood and the wealthier brother will be ver will will be generous and accommodating and accepting other times i've heard people say because my brother's a slimazo i have to lose out my share of the arusha so you have to know who you're dealing with you have to know your family you have to know how how it will be accepted if you have any questions a discussion mikhail is can go won't go a long way alternatively sometimes if you have a child that's struggling helping him out mikhail helping him buy a house very often is a way to avoid the tension the will they'll be treated equally but one of them bought a house bought himself a mansion he doesn't expect any parental help the other one that couldn't couldn't afford the down payments and it sometimes is is just a practical it's uh to to to to avoid tension so now we've gone through the default state of hyurusha we've discussed a little bit about whether it's appropriate to change the state of harusha let's talk for a few moments about if i want to change it how do i change it and this leads to a very interesting question we all know that if you want to buy something you want to sell something agreeing to buy agreeing to sell doesn't have that much meaning in halacha you can tell them you're going to buy you're going to sell it's still yours you have to make a nice opinion some sort of formal action that actually transfers ownership of the goods what's unique about a will or a tava is are you actually transferring ownership when you sign a will no a person should be engaging in estate planning when he's young he's not transferring anything at that time it's a transfer that doesn't take place until ah until the person is it has already died as a matter of halacha you cannot make a kenyan for the very simple reason that the moment a person dies as far as allah is concerned the assets no longer belong to him so to make a kenyan that will not take effect until after he dies is something which in halacha does not really exist and that creates and and therefore the question is a person wants to go ahead and give gift giveaway assets how can that be done so to briefly run through some of the some of some of the approaches you know time is short so i'm going to have to you know just be a little bit a little bit general some people make a opinion on assets guffma young paris la camisa which essentially means they're giving the assets today but they retain a lifetime estate they can use it for their entire life um but but but the goof there is some sort of kenyan in the gopher dover that happens immediately now in theory that's wonderful but that can only work on assets that you actually own at the time you execute this will if a person is riding a will when he's younger and he buys assets in the future there's no way to make a canyon on things you don't own yet now what's typically done is um is what's known as ishtar zakar and essentially that is we have a problem in halakha when a person dies the estate goes to the ocean the person wants his daughters to get a share of his wife to get a share but we can't make a kenyan today on assets that he doesn't own yet so ishtar khati zakar which is again there are already describes this minogue is the following the testator creates an oblig he says i owe my daughter 20 million dollars i owe it to her now it's not payable until a moment before i die now there's a condition attached to this debt if my sons who are the real yarsham sh give their sister a share in the estate they treat her like a regular your ish they give her whatever it is you have in your estate plan then this 20 million dollar obligation is null and void it's a tanai now that creates a very interesting situation as a matter of halal who's the who's the irish the sons the bihar gets pishna and the sons get the rest daughter gets nothing but if the sons exercise that halachic right what happens the daughter comes with this paper that says that my father owes me 20 million dollars and based on that debt she gets entitled to the entire estate the sons now have a choice they want to claim your roosters are wonderful then they'll lose it all because of because of this because of this because this 20 million obligation on the other hand if they voluntarily honor the father's wishes and give the daughter whatever it says in the in the will in the trust whatever estate documents were executed then this obligation this 20 million obligation is null and void it goes away now most sons even if they're the greedy know no math well enough to realize this is a losing proposition and this is a way to kind of force them to honor whatever it is it says in your will and or in your trust regardless of whether they are actually yarsham or not this is known as a star katie zucker if you go to a a dying or today there are some attorneys that will write a halachic will addendum for you this will essentially will will be what it says it crew it's this way to force the halaqim to follow what it says in your estate plan but what if you don't do that what if a person went to his attorney he got a secular estate plan documents whether it's a will or a trust whatever it may be and did not write ishtak shtakati zakhar what is the what is the status of that of that estate so this is a tremendous multilicus technically speaking we mentioned you can't make a kenyan la jamiso a will does not take any effect until after the person dies and therefore in a technical sense the will the civil will should be worthless as a matter of that being said there are a number of reasons why many policemen hold that a legal will is enforceable in halakhah some argue that this is ignorance moisture writes that it's a kenyan it doesn't happen in the academies it it happens at this at the moment of death and he says that a kidney could be done then and therefore they gross moisture right a legal will is a valid kenyan there's no reason to write a stance the will itself is recognized by halakha as an enforceable transfer whatever it says other police kim don't view it as a kenyan but nevertheless there's a concept of mitzvah de bruynes where if a person gives instructions about what what about his assets there's a mitzvah to honor those instructions now this is not just a nice thing to do this is enforceable obligation destin will force the urgent to follow this mitzvah of these instructions so they'll wait a few years but they'll get it now so why then is there a question about this and the reason the answer is is that mitchell county very amaze has a number of technical requirements it has to be hoshoslek the assets have to be given over to a testator to a trustee if you will or an executor with these specific instructions there are a number of other requirements which if you look at medina de solcanaroch a legal will does not does not comply with most of the requirements for mitzvothem devis nevertheless the aggiezer writes that these requirements are all just to show gamira's das they're all there to show that you're serious about this is what you really want to happen to the assets in a case where you execute a legal will where you wrote people rely on it 100 percent because they know this will be probated these instructions will be followed by the judge so perhaps in those cases we do not need the technical requirements we don't need hostile we don't need the various you know technical requirements and therefore the achiever writes that even that illegal will will be enforceable based on this concept of mitslokaim devry amaze now as far as if a person certainly if a person's father pastor or appearance passed away they didn't write if someone wants to know what the right thing to do is the right thing to do is not to make problems with your family if this is your father's wishes there may be myths of keeper of the aim there may be a time to remain where moshe writes it's a kenyan what should a person do a person should not make my life a person should honor it that being said if you have a sibling that's not willing to do that and says no i want to go to bed i want to collect or i want to demand anything that i'm luckily entitled to so then already you're on somewhat shaky ground there aren't quite a number of shitoys or theories why illegal will should be enforceable but each of them are kiddish each of them have other playskim that disagree with it and therefore the outcome in a desden is is is not is certainly you know not clear or hard to predict and therefore if a person has any concern whatsoever or any thought that they're pr that there's any chance there may be a majority it is certainly kadai for a person to go ahead and sit down with a rav and write a salvo to make sure that it's it's it's enforceable now a trust is actually a fascinating question because when you put transfer assets to a trust the transfer happens mayhem the assets are assuming it's an irrevocable trust it's given out immediately to the trustee so you can argue that the moment you transfer it into the trust you've given away matano if it's it is not subject to hillary and whatever instructions are given should should be followed out on top of that in the midst of the kind of rames where the the concern is usually that the assets are not transferred to a third party they're not hoshis a trust is by its very definition and therefore a trust especially an irrevocable trust probably is enforceable in halakha without any need for a ishtar khatizaka that being said you're not really going to find a shock that talks about a trust this is a relatively new thing i mean mother does talk about which personally i think is the same thing as a trust but because we're not dealing with apsuka this is a more modern construct it's you know it's probably kadai if especially if you think there might be a malchus to go ahead and to include it in stark zucker but at least my personal opinion is it was really transferred to an irrevocable trust and was done seriously i don't think that would that would that would really be subject to hillary's erusia so i'd just like to conclude with a few practical takeaways from this year and just some practical pointers if you will from some experience i've had in dealing with these neon the first takeaway is that if a person does not have a will or an estate plan do something get something in place very often people are hesitant because it's not a pleasant topic but more often because they're stuck they don't know what to do their estate planning raises serious questions that very often there are no perfect solutions to and many people just get stuck they get paralyzed they can't they're not comfortable or no solution is perfect and therefore they do nothing that is a disaster because whatever you do is better than doing nothing having the helpless jerusha kick in one way the government weighing in on a second way and the your shim and the family having a third or third idea so the first takeaway is you know even if you haven't had don't have it all worked out get something in place hashem one day you'll come up with the perfect plan you'll modify it you'll modify your your estate then but do it do it now the second point is is that be very careful how you to treat everyone fairly the mishnah the umari that says you have to be very very careful if you're giving one child more than the other it might be very obvious to you they deserve it your children may or may not see it that way so if you're going to do that again there are cases where it's appropriate but when the governor says it means and if you do want to change it you have to be very confident that it will be perceived by everyone else the same way it's probably a good idea to pull over some of the children beforehand and let them know because that leads us to the third point is avoid surprises if your shim goes through their whole entire life expecting a certain things to happen a certain way or expecting a certain amount of affluence and then they're rudely told you have a rude awakening after the patera and they find the father didn't have not nearly as wealthy and maybe a child that was involved in the business now owns more than they thought about that's a recipe for disaster surprising them or shocking them people are suspicious so if you're if if if you if it's important to manage expectations and and make sure people know what what you know what eventually is is going is going to come now another important point and this is very sensitive is sometimes it's important to give up control when people age they get weaker they get more frail and the reality is they become much more susceptible to pressure all too often safe yum of a person in his in in his later years will move into one child and at some point he will change the will in favor of that child now logically there's a very good reason to do so if you've lived with that child they've serviced you they've spent money they've fed you they took care of you hakaras sometimes it makes a lot of sense but at the same time there's a lot of room for abuse there's a lot of room for undue influence or pressure to be brought to beer and therefore it's important for a person before he reaches that stage to make plans take steps sometimes transferring it to a trust where you no longer have the control is a tremendous safety valve it protects you from the pressure and protects the children from any suspicions of foul play because any change that was made was done by the trustee it was done by someone who who was not susceptible and again regardless of whether someone does or doesn't do anything it just removes that that that suspicion another point to keep in mind is that when no one likes thinking or planning about their death today we're focusing on the financial aspects of estate planning and some of and some of the reasons why inside jokes you russia it's important to plan but there are a host of other reasons and there are a host of other considerations to take into account when you go to an attorney besides working at an estate plan they will very often talk to you about a healthcare proxy today we all know there are hospitals kill people the value of life in the secular world and the value in life in in halacha is drastically different and if a person has no health care proxy to a large degree he'll be at the mercy of whichever intern is maybe on call at the moment that of the emergency if he has a health care proxy that sets forth his wishes the organization that he wants to be in charge of things it can be literally be a difference between life and death the same thing is true about having you know there are you know some other other practical matters is having a power of attorney when a person is incapacitated to to make your family in that time of stress to go through the legal hoops in order to get his affairs in order the last thing they need at that point is is not being able to access a bank account to pay for any bills having your affairs in order having have having the power of attorney making sure you have sufficient life insurance to take care of your care of of the family ahmed astrum there are a lot of practical matters that when you sit down and work out your state of your estate plan a lot of other things that will be will be addressed and in conclusion i just want to add one one one additional thought and that is very often as a die-in i get call from a parent they're working on their estate plan they have their attorney they had their ideas but their concern is that what will be with the family what will be with malaikas everyone has heard horror stories about urushios that have ripped apart families now parenthetically i'll tell you that is very rare the overwhelming majority of urushios get settled friendly and amicably within the family it's a minute percentage that blow up but any one that happens is a tragedy and parents are often very concerned what can i do what documents can i put in place to go to minimal to minimize that and what i often tell them is that if you've lived your entire life of greed if you children grew up fighting for every dollar and from your behavior they learned what it means to to fight to fight for every dime you're entitled to there's nothing a dying can do with a document to make up for 70 years of failed it just can't be done the model the role model that you were the behaviors that you that that you looked up to or aspired to be are really what's going to impact your children one of the saddest meetings i've ever had is i dealt with the arusha case if there was a again it was it was a fight everyone meant well was being heirlook but it was a little bit more nasty than it needed to be ultimately was resolved five or six years later the the side that it actually prevailed came to me with his children and essentially this person had realized that he had just gone through a fight with his yerusha what's going to be when he passes away and in that short meeting with him between him and his children it is very apparent that when when he died there was going to be world war iii there was going to be a malaikas and the tragedy was is that this was this is his own doing his children had seen how he dealt with his yerusha dispute they saw and they learned all too well what their father's values were and there was little question that that's going to that was going to propagate to the next generation and therefore if a person goes ahead in adorable he lives a life where his children know being heirlook is more important than being wealthy his children know that shalom is more important than than having the last word again the upper hand and they absorb those values and they see the importance of soloing and not and and and and and and and the tragedy of the hoikas so if you've seen that you don't i tell them my services you don't really need and if they've really absorbed those lessons then forget about the estate you've left them with a treasure worth more than gold and silver thank you [Music] shame against your entire mouse is posting like a character for tonight's share however sponsoring your share or to uh inscribe irrigation to your estate plan and you will call ignorance retire at 718-851-8651.com also to put an ad in the dinner journal the occasion of vegan she retires annual dinner coming just up in just two weeks to honor any of the abundant which you've enjoyed of irregular terror worldwide throughout the year call ignorance your turret 718-851-8651 one of the board members of industrial terror for sponsoring tonight's show i'd like to give biggest occurrence to the owner family for the support for tonight foreign [Music] okay