Last Will and Testament Considerations

Putting Affairs in Order

It is appropriate for a person to give thought before passing away, and to inform kosher witnesses about all their affairs and assets, loans and deposits belonging to others, so that their heirs will know how to handle their property and not stumble into the prohibition of theft, Heaven forbid. However, if there is concern that telling someone to prepare their will might weaken their spirit and worsen their condition, they should not be advised to do so. (Chapter 335:7, p. 89)

The Talmud (Tractate Berachot 18b) tells of the Amora 'Abba' who was righteous and upright, and with whom people would deposit orphans' money. When Abba passed away, his son Shmuel was not by his side, so he could not instruct him about his assets, and Shmuel did not know where the money was. Due to suspicion, people began calling him: 'Son of one who eats orphans' money.' What did he do? He went to the cemetery and saw the spirits of the deceased there and asked to speak with his father. When his father came, he asked him where he had placed the orphans' money. His father told him, "In the ground beneath the millstone there are three rows of money. The top and bottom money is ours, and the middle money belongs to the orphans." He asked him, "Why did you do this?" He answered, "So that if thieves come, they will steal our money on top. And if the ground ruins the money, it will ruin ours, thus keeping the orphans' money well preserved."

Writing a Will

It is appropriate for every person to write a will regarding inheritance, and distribute to all their children in an orderly manner, so that quarrels and disputes will not remain after their death, and they will live in brotherhood and peace after their passing. Therefore, one should go to a halachic authority who is knowledgeable in monetary laws [not to a lawyer], and consult with them about what language to use in a way that is effective according to halacha [and also accepted in court]. Otherwise, the will is generally not valid, and Torah law applies to the inheritance, and sometimes the heirs act improperly. (p. 90)

Inheritance to One Child Only

One who has two sons, one who fears Hashem and observes Torah and mitzvot, and the other who desecrates Shabbat in public and does not educate his children in Torah, the father is permitted to write a will transferring the inheritance to benefit the God-fearing son. This is especially true since the other son might desecrate Shabbat with the assets he inherits from his father, which would be like assisting those who commit transgressions. Nevertheless, the father should act with moderation in all this. It is good to entrust part of the inheritance to a trustworthy person, with a complete condition according to halacha, that if by a certain time the son returns to complete repentance, or if he has children who return to repentance, then this portion will be given to them. Otherwise, it should be given to the son who observes mitzvot or to charity.

The Igrot Moshe wrote that the prohibition against transferring inheritance even from a bad son to a good son applies specifically to a generally bad son who isn't careful with all mitzvot or doesn't honor his father, but who believes in Hashem and His Torah, and educates his children to follow Hashem's Torah and commandments. In such cases, the Sages said not to transfer the inheritance, because there is still hope that perhaps a good son will come from him. But a son who desecrates Shabbat in public, violates Torah prohibitions, and does not educate his children in Torah and mitzvot - we need not worry now that perhaps a good, God-fearing, mitzvot-observing son will come from him, because children follow their parents' actions. And although sometimes Torah-observant children do come from those who desecrate Shabbat in public and transgress, nevertheless the Sages did not worry about these cases that good offspring might come from them. Therefore, the father is certainly permitted to give his property to others or to charity, and the spirit of the Sages is pleased with him, and he should be remembered for good. This is also explained in the Chatam Sofer and the Sma. The Rambam writes (Laws of Theft and Lost Objects 11:2): "Even if the owner of the lost item is wicked and eats non-kosher meat out of appetite, it is a mitzvah to return his lost item to him. But one who eats non-kosher food to anger Hashem is considered a heretic, and it is forbidden to return his lost item, because heretics, deniers, idolaters, and those who desecrate Shabbat in public - it is forbidden to return their lost items, just like a non-Jew." This is also ruled by the Shulchan Aruch (Choshen Mishpat 266:2). It is clear that even for one who desecrates Shabbat in public, we do not worry that perhaps a good son will come from him. And since it is forbidden to return even a lost item that is actually his property, certainly it is permitted to transfer his inheritance which he has not yet acquired. This is also written by later authorities. (Responsa Yabia Omer Vol. 8, Choshen Mishpat 10)

Increased Inheritance for One Child

One who has several sons who all fear Hashem, observe mitzvot, and set times for Torah study, but one son has merited to diligently study Torah and has become a Torah scholar, the father is permitted to write in his will that most of the assets should be given to his scholarly son, with the remainder divided among the other sons. This is especially true if the scholar's financial situation is tight, and through this he can engage in Torah study more comfortably.

Although generally one should not transfer the entire inheritance to one son alone, in our case there is a double uncertainty: Perhaps for a son who is a Torah scholar, it is permitted to transfer the inheritance due to the honor of Torah. And perhaps the prohibition only applies when giving one son everything and the others nothing, but when giving more to one and less to another, it is permitted. All the more so if the father writes this while healthy, he can certainly give as he sees fit, as a person can do whatever they wish with their property. (Responsa Yabia Omer Vol. 8, Choshen Mishpat 9)

Inheritance for Daughters

According to our holy Torah, daughters do not inherit, only sons do, and only if there are no sons do the daughters inherit. As it is written (Numbers 27:8): "Speak to the children of Israel, saying: If a man dies and has no son, you shall transfer his inheritance to his daughter. If he has no daughter, you shall give his inheritance to his brothers. If he has no brothers, you shall give his inheritance to his father's brothers. If his father has no brothers, you shall give his inheritance to his nearest relative in his family, and he shall possess it. This shall be a statute of judgment for the children of Israel, as Hashem commanded Moses." This should be made known to the wider public because, unfortunately, there are many who "do not know and do not understand, in darkness they walk," and they sue in court for a share of their father-in-law's inheritance, contrary to our holy Torah. Anyone who takes from this money is committing outright theft, and is disqualified from being a prayer leader or witness until they return the money to their wife's brothers and appease them with words so they will forgive them.

In certain cases, daughters receive a specific portion of their father's inheritance, such as when they are not yet married, in which case they receive food, clothing, and needs for marriage and dowry. (See further elaboration on this subject and its reasons in the booklet "To Be a Woman" page 38)

When does this apply? When the father did not write in his will to give to his daughters. But since it is customary to give a portion to daughters as well, a wise person will specify in their will to give part of the inheritance to their daughters, thereby preventing quarrels and disputes. [The book Gesher HaChaim suggests giving each daughter half of a son's portion, though clearly everything depends on the circumstances.] Especially if his sons-in-law are Torah scholars, and all the more so if their financial situation is tight, he should certainly do this, and may the blessing of goodness come upon him. (Gesher HaChaim Vol. 1, p. 41)

The book Gesher HaChaim relates a story of a wealthy scholar who had three sons and three daughters, and in his will he left all his property to his firstborn son [a double portion] and his other two sons according to their share, but left nothing to his three daughters, even though the firstborn was wealthy and not a Torah scholar, and one of his sons was poor and an outstanding Torah scholar, and his sons-in-law were known for their Torah learning. His actions caused hatred, competition, and division in his family, to the point where people said it would have been better not to leave property and inherit hatred. Even the rabbis criticized him, saying it would have been better to give a nice sum as a gift to the son who was a Torah scholar and to his daughters, with the remainder divided as inheritance according to law and halacha.

Suing in Court

One who sues for their father-in-law's inheritance in a court that does not judge according to Torah law, besides the prohibition of theft mentioned above, the very act of suing is absolutely forbidden. The Rambam (end of Laws of Sanhedrin) and the Shulchan Aruch (Choshen Mishpat 26:1) wrote about this: "Such a person is wicked, as if they have blasphemed and raised a hand against the Torah of Moses our teacher."

Rabbi Tzvi Pesach Frank, the Rabbi of Jerusalem, in response to a religious lawyer who was astonished to hear that the Rabbi considered the courts in the State of Israel as non-Jewish courts, wrote among other things: When we consider the reason for the prohibition of judging in non-Jewish courts, which is because one who judges before them honors their deities by considering them important, as it says "and our enemies are judges," meaning when our enemies are judges, it is testimony to the elevation of their religion. Therefore, one who judges before them is wicked, as if they have blasphemed and raised a hand against the Torah of Moses. For this same reason, even a Jew who judges according to their laws is certainly worse than a non-Jew, because a non-Jew is not commanded to judge specifically according to Jewish law, but this Jew who is commanded to judge according to Torah, but turns away from it and judges according to the Ottoman Mejelle and other laws of the nations, about whom it is said: "They frame mischief by statute, gather against the soul of the righteous, and condemn innocent blood" - such a person is wicked and raises a hand against the Torah of Moses. As the Rashba wrote: "He destroys the walls of religion, uproots it root and branch, and the Torah will demand an accounting from him." The same applies to one who goes to be judged before him. We are very distressed that the government and the Knesset have adopted these laws to judge by in the State of Israel, and there is no greater insult to the Torah and its standard-bearers than this. Woe to people for the insult to the Torah; may the Master soon come to His house and restore our judges as at first and our counselors as at the beginning.

The Chazon Ish also wrote: It is clear that there is no difference between judging before non-Jews and judging before a Jewish judge who judges according to foreign laws invented by the nations. On the contrary, it is more disgraceful that Jewish judges have exchanged the laws of Hashem and His holy Torah for the vain laws of the nations. Even if all the city's residents agree to this, their agreement has no substance, and their judgment is violent, oppressive, and theft, raising a hand against the Torah of Moses. Rabbi Isaac Herzog, the Chief Rabbi of Israel, wrote that now when the Jewish people dwell in their land, and to our sorrow judge according to foreign laws, the matter is a thousand times more serious than an individual or community in Israel going to be judged in non-Jewish courts, for is there no God in Israel, Heaven forbid? The Sages have already said (Shabbat 139a) that all punishments that come upon Israel, go and check the judges of Israel. And we see, unfortunately, how difficult the security and economic situation is today, when each day's curse is greater than the previous one, until a spirit from on high is poured upon us, and the earth is filled with the knowledge of Hashem. (Responsa Yechaveh Daat Vol. 4, No. 65).

Gifts to Daughters

Even if the father did not command to give part of the inheritance to the daughters, nevertheless if the daughters and sons-in-law fear Heaven, it is good for the sons to be stringent and give up part of their share as a gift to their sisters, to prevent disputes and distress. (p. 92, Gesher HaChaim Vol. 1, p. 41).

The Mitzvah of Charity

Before a person's passing, they are permitted to distribute much of their money to charity, as the mitzvah of charity is great in saving a person from an unnatural death and from the judgment of Gehenna, and meriting them to the World to Come at very high levels, as long as they give to worthy people who will increase Torah and mitzvot with their money as much as possible. Through this, their merits will multiply and grow immensely, even though they are no longer in this world. The Sages have already said (Berachot 64a): "The righteous have no rest, neither in this world nor in the World to Come, as it is said (Psalms 84:8): 'They go from strength to strength,'" meaning that even though they are already in the World to Come, they still ascend from level to level, again and again, due to the fruits of their good deeds that they performed here in this world.

The Talmud (Ketubot 67b) tells of Mar Ukba who was a great philanthropist, and before he passed away, he asked to bring him his charity account book, and found that he had given seven thousand dinars. He said: "I have prepared too little provisions for the journey, while the journey is very long and this is not enough." He immediately rose and distributed half of all his money to charity. The Sages' enactment that a person should not give more than a fifth [20%] to charity applies only during one's lifetime, out of concern that they might lose their assets, but when going to die, they should give as much as possible. (See also Baba Batra 10a and Shabbat 156b)

Don't Miss the Opportunity

A person whose family members do not properly fulfill the commandments of the Torah should use this opportunity and write in their will that they command them to strengthen themselves in the way of Hashem. For there are many who do not pay attention to explicit words of Torah, but will be careful to fulfill the will of the deceased appropriately. It is good to ask them to at least be consistent in one thing, and one mitzvah leads to another. (p. 90)