Nachum Segal and Rabbi Asher Lowenstein Discuss Halachic Wills on JM in the AM

Monday morning here at JM in the AM. Well, I said that uh our topic is going to be hahik wills and Rabbi Usher Loenstein is with us live via telephone. Rabbi Usher Loenstein is a Harvard Law School graduate. He's a lawyer, an attorney who deals with trusts and estates. And because of his extensive background in the area, he is very knowledgeable about halahik wills. In fact, he has an amazing article that's not has not been published yet, but I'll ask him during the conversation if it's available for people who'd like to read it. A really extensive piece about hala and inheritance and haka and wills in general. Rabbi Asher Loenstein, a pleasure to welcome you to JM in the AM. >> Thank you, Nakam, great to be here. >> Uh, we should really um, and by the way, not just for the audience's benefit, but for my benefit as well, we should frame this conversation properly because a lot of people throw around different terms. There's hahikic will, there's living wills, there's hahikic living will, there's proxies and health proxies and different things that are related to end of life issues. What is the exact uh what is what are the exact topics that fit into the discussion about a halic will? >> Okay. So, you're absolutely right that these terms often get confused with lots of similar terms. The halahic will can be used in a few different ways. I don't think of it as a specific document, right? what what I when I use the term halak will I like to refer to an estate plan that's structured in a way to comply with hala and there's there's a number of ways to do that but and and the most you know the most common mechanism is to use a document that many people refer to as a will but there are other ways to do it as well. Is there a way to uh to in fact do it according to and not in any way um uh uh uh interfere let's say with the American legal system? Can this hakic will uh live alongside the American legal system and be recognized by everybody so to speak? >> Yeah, absolutely. So that's that's the goal. That's what we we're trying to do to make something that allows people to comply with halaka without interfering too much with other plans that they're doing. And and that's why what we provide generally when when we're doing what people will call the will is we'll add a document called the will addendum. and that goes along with a regular will or trust or whatever documents we're using in an estate plan. And it allows that plan to be accepted to be affirmed in a you know holically acceptable manner. >> And and I guess like anything the fear is god forbid that if someone goes ahead innocently and uh you know arranges for their estate to be uh distributed in a certain way. God forbid it's possible that that that one of the aspects of that arrangement could be against right. Is that is that what we're concerned about? that god forbid a Jewish family or a Jewish person might do something and they don't realize that it's connected that it's against what our rabbis have taught us over the centuries. >> Absolutely. I think that's the most important part. So, and this is the the post can have spoken about this, but but somebody uh what does it mean let's step back a second and and what does it mean to to do to set up what would it what would your estate plan look like if you doing >> right >> and and and would it look very different from just using a standard regular American attorney >> right 100%. So in the in the in accordance to the Torah, a man has sons and daughters, daughters do not inherit. >> Right. >> The sons get everything. >> Right. >> Right. And the second sort of big feature is that the oldest son, if it's the oldest child, is the son receives a double portion. >> Right. >> And this is obviously this creates tension with contemporary expectations where parents want to treat all their children equally, right? That's sort of the the crux of the challenge. And but you're absolutely right that if somebody went ahead and set up without doing any sort of planning to set up their will um with the best intentions meaning to give all all the all of his or her assets to their children equally, you would have a potential problem because and ha because under as soon as somebody passes away their their their assets their money immediately point to becomes possession possession of their children, >> right? >> And here it would be the sons and if the daughters do get a portion of that, then the daughters essentially perspective would be stealing this. >> All right. So, so we better get to this next question before everyone starts to panic who's tuned in. Is there a way around this? Is there a way to and and I did say I did ask at the beginning if the two could live side by side and you sort of said yes. Uh is there a way to distribute the way we're used to distributing in American society and you've basically have outlined that for us and at the same time comply with what the hala demands. >> Right. Right. So there there are a number of approaches which we don't have to get into all the approaches and I think the most important one the most common mechanism is this hal will addendum >> right >> what that goes along with the with a will. So people come to me for to draft you know to work on an estate plan and they'll get a will or there'll be a trust and then along with that there'll be a hah will addendum which works from a hal perspective and and basically what it does is as follows. So there's a parent, usually it's the parent we're dealing with, and they create what is what I call an acknowledgement of indebtedness. It's not exactly a document saying I I owe money. It's more of this acknowledgement, >> right? And but it refers to this obligation that the person whose whose money it is the let's call it the parent obligates himself or herself to pay daughters or other non-halafic heirs a substantial sum of money and and it's important that this is a lot of money and it's more than they would get from an equal distribution. >> Wow. So let's say somebody's got a, you know, somebody's got a couple million dollars, right? So we'll say that the daughters will get $10 million. >> And this is an obligation that will take effect immediately before that person's death. >> And after he dies, the sons who are theairs, they have a choice. They can either honor their father's wishes and give their sisters the intented shares this equal portion or they can say we don't want this we want to go with halah you know we don't like the secular will business >> and but then they'll face this obligation >> of the $10 million >> the father create ex of the $10 million >> brilliant brilliant imagine imagine that imagine that a >> imagine that >> a good a good Ivy League Jewish lawyer has come up with an answer. I like that. Very good. >> Well, I didn't come up with it. >> There are there long history. >> There are postkim who've dealt with this as far back as when >> so we know the the first reference we have to this exact not exact but the the basis of this mechanism goes back to the 16th century. And this is the Ramos in he mentions it not less than five times he refers to this strategy. And so obviously if he's referring to it five times this was something that was really prevalent in his time, >> right? >> And it it was something common for people to use. >> Wow. Very interesting. >> He says says so is the custom. He he says that somebody who puts this in place, the sons are obligated to give the share specified in the will to those daughters. >> Right. Rabbi Asher Loenstein is with us live via telephone talking about halak wills. Are are there things in halaka that are not um generally uh that are not generally in the same category as money when it comes to you know inheritance. H I mean I I guess I and I'm just making an assumption in the United States for instance I would assume the legal system calls for all possessions that you know can can be distributed you know via a will. Uh are there things that are not included in that when it comes to hala? >> So you mean does haka separate some kinds of assets from others? >> Yeah. Does halaka separate cash from real estate or cash from I don't know silver objects you know I mean does it is is there any difference >> yeah so I would say not really I wouldn't say there's much of a difference in cash and real estate but there are differences so and this is similar interesting you you brought up the the way how secular law looks at some objects that could pass through a will right >> at the same time the secular law recognizes that there are objects that avoid the will, they they get passed on not through the will, >> right? >> And and one of those and this is connected to to gas also. One of those is life insurance, >> right? >> So somebody has a will and they also have a life insurance policy. The the will can have whatever distribution, you know, the person puts in the will. If they have a a life insurance policy that has a different scheme, they want things separated differently for the the life insurance >> different bene different beneficiaries. >> Exactly. There could be different beneficiaries and that does not not get affected by the will. So similarly in hala you have the some some assets also a life insurance policy will be one of these. They are not classed in the same group of assets as as uh sort of money and property. And the the reason that is is because it's the the life insurance policy the money coming in does not belong to the the saving the person dying. It it's a contract they have with the the life insurance company that when they die it gets passed to their to their beneficiaries. So that is one of the ways you might think and some people like to do this. It's a very elegant way I think to uh set up a will with equal distribution according to halaka and that's to do to really put a focus on life insurance to set up a policy that pays out equal amounts to all children. >> So after a few minutes with you Rabbi Usher Lowenstein here's my conclusion or at least my observation I don't want to say conclusion. It seems like uh the American legal system for example, others I'm sure as well and hakic wills can coexist but it seems like there's two major issues. You got to deal with the male female issue hakically and you got to deal with the firstborn and other children issue hakically. Am I right that those are the two major ones? >> I I think you got it. Absolutely. and the and no and have other things seeped into your practice or those are really the two that uh that have to be addressed headon when someone wants to estate plan holocically. Yeah, I think those are the the two ones, but I but I think it's really important to for people to keep in mind in in today's day and age when we don't set things up according to we we could be really inviting family disharmony, >> right? Because people have expectations, children have expectations on what they're going to get. >> And you have to set up and you have to make it clear to everybody that so they see after after the person's gone that it was set up discord fights in the family. This it's really important to to convey what the plan is and how it complies with >> uh Asha Loenstein. How do people get a hold of your article? Is there an email address where if someone writes to you they can get the article at number one and it's a very comprehensive and very informative article and can people actually set up a meeting with you to discuss all this because there are probably people in this audience uh no matter how much money they do or don't have that you know want to follow hala frankly. Yes, thank you. That that's uh two great points. Um my email is asher asshopppstelelegal.com. Anybody who's interested in seeing that write up that I sent to you is welcome to reach out to me. They could also feel free to reach out about other questions. If they want to talk about holic world, they want to set something up for themselves, set up, you know, any other aspect to speak about, they can that email or my my website lowestlegal.com. Uh there's a lot of information there and my contact information is on the website as well. >> Website is loensteinal.com. Uh Rabbi Usher Loenstein's direct email address is usher asshoenstein legal.com. He does have an amazing article about halaks that he's making available to the public. So you could ask just request by email that he send it to you. will be more than happy to do that. If you want to meet with him or get his suggestion of who to meet with regarding all of this uh to estate plan properly according to Hala, he's more than happy to give you advice and to lead you in the right direction. Rabbi Loenstein, I uh I am I am grateful that you and honestly, more accurately, your wife brought this topic to our attention. >> It is more honestly my wife and and maybe you should have her on. She's a a force of nature. She's much more interesting and more opinionated than I am. >> What indust What industry? What industry is she in? >> She's a teacher. >> Say it again. >> Strong opinion. >> Say it again. >> She's a teacher. >> Oh, a teacher. >> She's a teacher in uh Yes. >> There you go. >> In our Torah school in Queens. >> Oh, we know Hart Torah. Very nice. All right. Tell us in regards to uh Elliot Weiselberg. Is Elliott still a harder folks? He might be. I don't know. I'm sure he's still affiliated with them. uh Rabbi Loenstein big on this and uh thanks for making this available to everybody and I hope this does encourage people to follow another important area of life uh hakically. Thank you sir. >> Thank you very much. I appreciate >> Rabbi Usher Loenstein usher at loensteinlegal.com. More coming up. You know what it is? It is a uh Monday morning broadcast at JM in the A.M.