Wills in estate planning: what a will does and what it does not
The will is the best known document in estate planning, but it handles one part only: what happens to the assets in the estate. A substantial share of a person's property passes outside it, and anyone unaware of that is planning half a picture.
"Most failures are not a defective document. They are two perfectly good documents prepared at two different times by two different professionals, with nobody reading them through as one."
Adv. and Notary Igal Mor
The role of the will within estate planning
Many people treat estate planning and making a will as the same thing. The will is indeed the best known document, but it deals with one part of the picture only: what happens to the assets that are in the estate at the time of death.
Three other questions are not addressed by a will at all:
- Who manages affairs while the person is alive and unable to manage them. That is what an enduring power of attorney is for.
- What is to be done medically. That is what advance medical directives are for.
- What happens to assets that never pass through the estate. A substantial part of a person's property passes outside the will, as the next section explains.
The question is therefore not whether to make a will, but what place it holds within a complete set of documents. An excellent will that is not aligned with the others can be less effective than a simple one that is.
What passes outside the will
This is the most common gap between what a person intends to leave and what will actually pass. Certain assets are not part of the estate, so a provision in the will does not apply to them.
- Provident funds, pension funds and life insurance. Where a beneficiary is designated, the money passes to them under that designation and not under the will.
- A joint bank account with a survivorship clause. The balance passes to the other account holder.
- Jointly owned property. It depends on how ownership is registered and on the underlying documents.
- Gifts made during lifetime. An asset already transferred is not in the estate.
One practical conclusion follows: before a will is drafted, map the assets and check for each one whether it passes through the estate or outside it. That mapping often changes the wording of the will itself. See estate planning.
The forms a will may take
The Succession Law, 1965 recognises four forms of will, each with its own formal requirements. A defect in form can lead to an objection and sometimes to invalidity.
- A handwritten will. Written entirely in the testator's own hand, dated and signed by them.
- A will before witnesses. The common form. In writing, dated, signed before two witnesses after the testator has declared to them that this is their will.
- A will before an authority. Made orally or filed in writing before a judge, the Registrar of Inheritance Affairs, a member of a religious court or a notary.
- An oral will. Available only to a person on their deathbed or who sees themselves as facing death, and subject to particular limits.
The choice of form is not merely a matter of convenience. A notarial will, for instance, is harder to challenge on the ground that the testator did not understand what they were signing. See wills and inheritance.
Special provisions in a will
Beyond the division itself, the statute allows provisions that direct what happens further down the line. Two of them appear in almost every properly built plan.
- A substitute heir, under section 41 of the Succession Law. The testator sets out who inherits if the first heir does not take, for example because they died first or renounced the inheritance. Such a provision prevents part of the estate being left unaddressed and divided under the default rules.
- A successive heir, under section 42 of the Succession Law. The testator provides that the asset passes first to one heir and then, on an event specified in the will, to a second. This is the tool used to keep an asset within the family after the surviving spouse dies.
Both are useful and both are complex, and each calls for precise drafting. In many cases a trust offers more flexibility than such a provision in a will. See trusts in estate planning.
Estate administration and carrying the will out
A will does not execute itself. After the death a process before the Registrar of Inheritance Affairs is required, and only at its end can the provisions be given effect. Between the death and the actual distribution there is an interim period in which someone has to safeguard the assets.
Two tools shorten that period and reduce friction:
- Appointing an estate administrator. A person who holds the estate assets and manages them until distribution. Particularly important where the estate contains an operating business, income producing property or debts.
- Detailed execution provisions. Who is authorised to do what, how assets that cannot be divided are dealt with, and what happens when an heir asks to receive a particular asset rather than a proportionate share.
The process itself and the documents required are set out on probate and succession orders.
Alignment with the other documents
Most failures in estate planning do not come from a defective document. They come from two perfectly good documents that do not speak to each other, prepared at different times by different professionals, with nobody reading them through as one.
- Will against beneficiary designations. If the will leaves everything to the children while the designated beneficiary on a provident fund is a former spouse, the designation prevails over the intention.
- Will against a property agreement. An agreement determining what happens to property may affect what is in the estate at all.
- Will against company documents. Shares subject to a transfer restriction in the articles reach the heir subject to that restriction. See family businesses.
- Will against a trust. Where a trust exists, the will has to refer to it expressly.
- Will against an enduring power of attorney. The two apply at different times, but acts done under the power of attorney affect what remains in the estate. See enduring power of attorney.
The simplest check is to read all the documents through once a year and confirm they still tell the same story.
What puts a will at risk
Wills are usually challenged on three main grounds. Knowing them in advance changes how the will is prepared.
- The testator's capacity. A claim that at the time of making the will the testator did not understand what they were doing. The risk can be reduced by medical documentation close to the date and by choosing a documented form of will.
- Undue influence. A claim that the testator acted under pressure from someone who benefits under the will. The presence of a beneficiary while the will is made, or their involvement in bringing the testator to the lawyer, strengthens the claim.
- A defect in form. A missing signature, date or attestation. Formal defects can sometimes be cured, but curing them requires proceedings.
Beyond that, a document with no orderly copy, or whose location nobody knows, may simply never be found. Depositing the will with the Registrar of Inheritance Affairs solves that. See contesting a will.
When to update
A will is not a document made once. It reflects a family and financial position at a given moment, and when that position changes the will can become a source of dispute rather than a solution.
Events that warrant a fresh look:
- Marriage, divorce or separation, whether yours or one of the heirs'.
- A birth or a death in the family.
- Buying or selling a significant asset, including entering or leaving a business.
- A change in the health of the testator or of one of the heirs.
- A move to another country, or acquiring an asset outside Israel.
A simple rule of thumb: review every few years, and again whenever one of these events occurs. Updating an existing will is far simpler than later working out what the testator meant.
In summary
A will is a central tool in estate planning but it is not the whole of it. It governs the estate assets, and it does not reach assets that pass outside the estate nor the period while the person is still alive.
- A substantial part of a person's property passes by beneficiary designation and not under the will. Mapping comes first.
- The statute recognises four forms of will, each with formal requirements whose breach creates exposure.
- Sections 41 and 42 of the Succession Law allow a substitute heir and a successive heir; in some cases a trust is more flexible.
- Most problems come from documents that are not aligned, not from a defective document.
- A will is reviewed at life events, not only when someone happens to think of it.
Sound preparation begins with mapping the assets and reviewing the existing documents, and only then with drafting. The reverse order produces a will that looks correct and does not do what was intended.
If you want to make a will or to review one you already have, contact us for an initial assessment. We will map the assets and the documents and set out the options available to you.
Questions that recur about wills in estate planning
These answers are general and do not replace advice on your own file.
Is a will enough for estate planning?
Which assets do not pass under a will?
What forms of will does the statute recognise?
What is a substitute heir?
What is a successive heir?
What does an estate administrator do?
On what grounds are wills actually challenged?
Is it worth depositing the will?
How often should a will be updated?
What happens when the will conflicts with a beneficiary designation?
Can shares in a family company be left by will?
Does a mutual will restrict later changes?
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An initial assessment call maps the assets, checks which of them pass outside the estate, and finds conflicts between the will and the other documents before they turn into a dispute.