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Wills and Estate Lawyering in Israel: Trusts and Probate in Israel, the US, and Beyond*

For those with complex or even relatively simpler estate planning needs in Israel, the US, and internationally, there are a few key issues to be addressed:

1. What Is the Law That Governs the Assets?

Depending on where your assets are, you may find yourself subject to multiple laws, requiring a set of will and trust documents in order to minimize administrative problems for executors or trustees for the estate.  For those with both Israeli and US assets, Israeli law certainly apply to any assets held in Israel, while a US trust is the frequent choice of those with American assets as well.

2. What is the Tax Treatment of the Heirs and Beneficiaries?  

In some countries, most especially the United States of America, confiscatory inheritance taxes are imposed on non-resident aliens (people without US citizenship or legal residency), approaching 50% tax rates in many cases.  It is important to plan wisely, including the use of generation-skipping trusts, in order to legally minimize such taxes.

3. Are There Heirs or Beneficiaries With Special Needs?  

Occasionally an heir or a beneficiary is struggling with substance abuse, mental health issues, physical health, a difficult divorce or custody battle, or a gambling problem, or simply an inability to prudently and competently handle financial issues.  In such a case it makes sense to create a special trust arrangement to effectively address the special needs of such an individual.

4. Who Should be the Executor or Trustee for an Estate?  

Choosing an executor or trustee is very important:  People with prudent judgement, sometimes even more than one person, can be chosen, such as a trusted family member, friend, or professional advisor.  It is also of key importance to pick alternate executors or trustees in case a particular individual is unable or unwilling to serve in that role.

5. When Should You Have a “Living Will” and a Durable Financial Power of Attorney?  

It is important to plan for a time when there may be a temporary or permanent inability to make important healthcare or financial decisions.  For this purpose, an Israeli or US or other “living will” can be executed for people authorized to make important healthcare decisions when you cannot do so.  A durable financial power of attorney document can be executed for important financial decisions.  Obviously in both cases, the individuals chosen have a level of fiduciary responsibility to make good decisions – and not self-serving  decisions – on your behalf.  These documents need to be drafted thoughtfully and carefully.

6. How Can You Keep Current With Changes in the Laws? 

It is important to understand that inheritance and tax laws can change.  For this reason, it is not only important that your legal counsel keep abreast of the issues, but also that there be mechanisms within trust documents, such as the office of the Trust Protector to ensure that legal changes can be effectively incorporated into key decision-making under trust and will structures.

7. Is Probate Necessary?  

That depends where you are, in the US or Israel.  In the US, probate has been largely replaced by trusts, although in the absence of a trust probate in a US probate court of a particular state may be necessary, especially for real estate assets.  In Israel, there is no way around the Israeli Probate Court.  In Europe, many countries will give authority to Israeli probate decisions, depending on how a will is written.

8. A “Halachic Will” For Jewishly Observant People?  

According to most Halachic authorities, it is desirable to have a so-called halachic will in place.  Effectively, this will serves a dual purpose of addressing the need for a halachic will (desirable in itself) and of ensuring that no games can be played via Rabbinical Court (Beit Din) involving the will and trust structure.

* Information contained on this page is not meant to constitute or substitute for specific legal advice addressing actual legal situations as is meant as general guidelines only.  Readers are advised to seek competent legal counsel appropriate and tailored to their particular legal situation.

Pursuant to U.S. Treasury Circular 230, please be advised that any tax advice contained in this communication is not meant to be a Covered Opinion and is not meant or drafted, and may not be used, for the purpose of either avoiding tax-related penalties or promoting, marketing, or recommending any tax-related matters that may be found in this communication.

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