Rabbi Braun: The Halachos of Kosher Wills
In connection to last week’s parsha being Parshas Vayechi which contains Yaakov’s instructions to his sons before his passing, we present halachos concerning tzava’os, wills of testament, by HaRav Yosef Yeshaya Braun shlita, Mara D’Asra and member of the Badatz of Crown Heights • From Beis Moshiach Magazine • Full Article
Inhibitors for Inheritance, or Rules for Non-Relatives
What the Gemara says about yerusha (inheritance): Do not withhold it from the rightful heirs by distributing assets to others, even if the heirs are not worthy–dilma nafik minei zar’aa maalya (perhaps his children will be great) and the subsequent beneficiaries will use the wealth honorably. Of a person who distributes their capital to non-heirs in this shortsighted manner, Chazal state, “Ein ruach chachamim nochah heimenu” (the Sages do not approve [of his actions]).
This applies even to tapping the inheritance for tzedaka (charity) in circumstances where generous grants would leave little for the children. However, various leniencies exist for endowing others in addition to a person’s own progeny; one of these is for tzedaka bequests that do not leave inheritors wanting—even more so, such giving is encouraged as a zechus (special merit) for the deceased.
Many poskim maintain it is permissible to bypass the rightful heirs if the tzavaah (last will) bequeaths them at least a shiur chashuv (a significant measure). A range of amounts defining what is chashuv are mentioned in poskim: four zuz (ancient silver coin); one fifth of total assets; or, in contemporary terms—as codified by Rabbi Moshe Feinstein (20th century)—one thousand dollars. Nevertheless, a wealthy person should rather bequeath their assets to their own children if they are needy rather than other causes, especially if their indigent children eschew money-making endeavors for Torah study.
The general practice, however, is to extend the shiur chashuv and ensure sufficient funds for each child to be self-supporting. After accounting for these allotments, the remainder may be distributed as desired. In cases where the heirs are mochel (forgoing of) what is rightfully theirs, a person’s wealth may be distributed any way they like.
Many authorities, including the Tzemach Tzedek (third Lubavitcher Rebbe and 18th century halachic author), maintain that all these rules apply even to gifting non-heirs during a person’s lifetime. Some poskim maintain, however, that those assets that are not normally part of a yerusha may be disposed of by the owner at their discretion during their lifetime. The Tzemach Tzedek rules that if the purpose of the gift is so that the recipient will be able to support the donor in their old age, or for a similar legitimate reasons, it is permissible, because a person may spend money for their own needs without censure. Just as an individual is permitted to sell their assets, they may likewise gift them or spend the money on themselves; the concern is only if they are depriving their children of their rightful yerusha, not if their finances are spent with just cause.
It is machlokes haposkim (a halachic dispute) whether favoring one child in a tzavaah over others by distributing assets unevenly is permitted, and it is good to follow those who promote even-handedness. It’s also permitted, according to some poskim, to cut a child out of a will if theyare mechalel Shabbos b’farhesia (desecrator of Shabbos in public). Some poskim state that it is halachically acceptable to leave one child more than the others in a case where the favored child is a talmid chacham (a Torah scholar), especially if done without the others’ knowledge—though it may not be a good choice for obvious reasons. Halacha2Go #822
Does a Bechor get a Double Portion of a Bank Account?
A bechor (a firstborn son) receives pi shnayim (a double portion) of his father’s inheritance. However, he is entitled to a double portion only of assets that were b’muchzak (in his father’s possession at the time of his passing). A bechor does not receive a double portion from assets b’raui (that have not been actualized yet). There’s a discussion among poskim whether stocks, bonds (corporate and government), bank accounts, and insurance policies are considered muchzak or raui. While there are a range of opinions on the matter, the following is the consensus among poskim:
Shares of stock in a company have the status of muchzak; they are considered to have been in the father’s possession at the time of his passing since they confer ownership in the company.
Bonds have the status of raui, since it is considered a debt owed to the father.
Bank accounts are raui. One reason for this is that banks usually invest the depositor’s money, and don’t hold it at the bank; the money would therefore not be considered as being in the father’s possession at the time of his passing. This is the position held by most poskim despite the fact that these days money in the bank is generally more secure than if it were kept at home.
The proceeds of a life insurance policy are considered raui, since the money isn’t paid out until the passing of the insured.
In any inheritance case the particulars of the situation should be addressed in a din Torah, or through a neutral party such as a rav, who would arbitrate among the brothers in a fair manner al pi Torah (according to Torah). Halacha2Go #427
A Will In Accordance with Halacha
There are many distinctions between a tzavaah, a will, written according to the Torah and a secular will. According to Torah law, a firstborn son receives double, only biological children inherit not adopted children, only paternal relatives not maternal ones, only sons not daughters (unmarried daughters receive a percentage of the assets, not a regular portion) and spouses do not have equal rights to each other’s inheritance.
When writing a tzavaah, it is crucial to do so with the advice of a seasoned rav or a Torah-observant lawyer to ensure that it is done in accordance with halacha. There are halachically acceptable ways that one can grant parts of their inheritance to people who do not inherit according to Torah law. However, one should always ensure that a sizable portion goes to those who are inheritors according to halacha; this also should be done with the guidance of a rav who has expertise in these matters. Halacha2Go #236
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