Lesson # 237 • .Laws of Wills and Estates (Intestacy)
I am frequently asked to review wills. People who want their will to conform both to the land where they are living, and also to halacha. It is not difficult to reconcile the two. This lesson begins a series of lessons discussing how property is divided up when a person dies. These lessons are not intended to render legal advice. Please consult your attorney for legal advice. These lessons are intended to show the reader how halacha handles the problems involved in transferring assets from one generation to another. Also, I intend to write these lessons without using “legalise”.

When I was practicing law in New York City, my firm, Quint, Marx and Chill did a fair amount of estate work. When someone died in New York County (Manhattan), a file had to be opened in the Surrogates (Probate) Court. The petition to the court was filed, a fee was paid and the file was assigned a number. If the person who died left a will , the file received a number beginning with the letter “P”, such as P425) The letter “P” indicated it was a probate file, that is, the decedent (the person who died) left a will. If the person died without leaving a will, the number received was preceded by the letter “A”, such as A426. The letter “A” indicated the file was an administration file, meaning that the decedent left no will. If I recall correctly, (its been over 20 years since I have been in the Surrogate’s Court), the numbers beginning with P and those beginning with A were almost even. This shows that only about half of the people who died in Manhattan had wills and about half died without leaving a will. If a person dies without leaving a Will, it is stated that he died intestate, without a will.

This is the first of a series of lessons devoted to the laws of inheritance of a person who died intestate, that is, he died without a will disposing of his assets, neither did he make a gift causa mortis before he died disposing of his assets.

What is a gift causa mortis? It is something that the halacha recognizes, it is a gift made in contemplation of death. When a person is on his death bed he wants to spend as much time in thinking of his Maker and preparing to meet his Maker. Assume this dying person did not have a will, and there is no time nor a person who can write a will. This dying man can make an oral declaration of how he wants to dispose of his assets, and in halacha, this declaration is given full force and effect. See lessons 204 to 208.

The person who dies intestate, without a will (the "decedent") is designated as "Reuven." Ordinarily; the assets of a dece- dent who dies intestate are disposed of as set forth by the secular civil intestate statutes of the jurisdiction (place) where the decedent dies. However, the surviving heirs of the decedent can agree to divide the assets of the decedent according to the laws of intestacy as stated in halacha. In many Orthodox circles, such agreements are not infrequent; most importantly; many Orthodox people write their wills to conform to the laws of these lessons as if they died intestate (without a will) under the halacha system, or at least try to approximate these laws in their wills.

The laws of distribution of assets of the decedent upon his death are based upon the Torah command found in Numbers 27:6-11 dealing with the laws of intestacy and Deuteronomy 21:15-17 dealing with the laws of primogeniture (the laws of a firstborn son). I could set forth these verses here but I suggest that the reader take out his copy of the Chumash especially one with a good English translation and mark these passages so that they will be easy to find when discussing this lesson and following lessons (or photocopy these verses to have handy.)

As is seen from these verses, if there are female heirs and male heirs on the same level of kinship, the males inherit and the females do not. Lacking males or their descendants to the end of the line, the distribution is made to females on the same level of kinship. The effects of this principle are certainly ameliorated by the decrees of the Rabbis in the Talmud regarding obligations of the estate and the male heirs toward the widow and the daughters of the decedent.

Obligations of the heirs to the widow and daughters of the decedent
The widow is entitled to be maintained by the heirs of her deceased husband out of the property that they inherited from her husband. She is entitled to food, clothing, and shelter. She may continue to reside in the family residence occupied by her late husband and has the services of all household employees such as maids and chauffeurs that she had before he died. All of these things are to be provided in keeping with her station or her husband's station, whichever is higher. If the widow becomes ill, she can obtain unlimited medical treatment from the estate; if she requires limited medical treatment, she must pay for it by herself from her kethuba. If she dies, the husband's heirs must provide for her burial. All income from the property that she brought into the marriage belongs to her. All of these are provided to her until the earliest of three happenings: (1) her death; (2) her remarriage; (3) her claiming her kethuba.

Upon the death of a father, a fund is taken from his estate to provide his daughters with a livelihood, according to his station in the community; If there is no way for Beth Din to know how much he would have given, each daughter receives 10% of the estate. In practice, the first daughter to get married gets 10% of the estate, the next daughter gets 10 percent of the remainder of the estate, and so on. Otherwise, if there were ten daughters, there would be nothing left for the sons; and if there were eleven daughters, the last daughter to get married would get nothing. The estate is also responsible for the maintenance of the daughters until they reach their legal majority at the age of 12 years, 6 months, and 1 day or become betrothed, whichever is sooner. The maintenance includes food, clothing, and shelter.

Beth Din always has the right to see that the widow and daughters are adequately provided for out of the estate. If there are not sufficient assets in the estate to provide for both the widow and the daughters, the rights of the widow have priority.

The subject matter of this lesson is more fully discussed in volume VIII chapters 273 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il

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