Articles and Opinions
Inheritance matter in Israel and the requirement of an expert opinion of foreign law
Lawyers who handle Succession matters in Israel will quite often run into a case where foreign law will play a major role in the administration of an Estate. This is based traditional conflict of law rules requirements when two or more legal systems comes into play and also because Israel is state of new immigrants and many foreign residents own real estate and other forms of property in Israel.
This will require the competent lawyer who handles the probate proceedings to have a working knowledge of foreign law or hire an expert to advise him on foreign at all stages of probate proceedings from the time the testator drafts the will, waivers and contract and also advice on tax consequence of each transaction. And finally advising the Judge and the parties on how exactly the distribution of the estate should be shared among the heirs whether a will was drafted or in case of intestate (no will) succession.
An expert opinion to prove the foreign law to administer the estate is statutory and require pursuant to chapter 7 of Israeli inheritance law of 1965 Section 137.
Choice of Law:
Choice of law in case of International matter will be determined by law of testator domicile at his/her Death.
Domiciled does not have an exact defintion and is based on various factors and court interpretations: Generally, domicile means a place of residence or “Permanent Residence”. However, a person may have many nationalities, but only one place of domicile. This could pose a challenge to parties and the court where an individual had two or more residences and considered both his “Home”.
The law of domicile will determine the substantive law of the distribution of the estate and whether any wills or any other document will have legal validity. This is plays an important role in contested cases. Where the application of foreign law can mean the the heir’s will receive a share of the inheritance or not at all.
In recent case was I was involved the issue whether the testator freedom of attestation under Israeli law prevails over the foreign law that required a “reserve portion” to all immediate heirs. Will a nonprofit organization for dogs and cats will receive the whole estate or will the immediate heir’s .
Israeli courts will have jurisdiction when the property is located in Israel or the deceased was domiciled in Israel. This is based on Israeli Inheritance law of 1965 section Section 136 and well established in Israeli case laws. This is based on traditional international principle of “lex situs”: the law of the place in which property is situated will prevail.
If cases where the deceased left properties outside the boundaries of the state of Israel. Israeli Courts are bound to follow foreign law especially when the principle of “Res Situs” applies. In case of “Renovi” : The foreign law refers back to Israeli law, Israeli Courts are free to use Israeli Internal law based on Section 142 of Israeli Inheritance law of 1965.
Not only will you use the expert opinion to determine how to probate and distribute the estate but also procedural issues such which country has jurisdiction to handle the whole estate and whether the will is valid under Israeli internal and International law and make sure that administration of the estate is done in timely and efficient manner.
*Law offices of David Ben Asher handles all international cases and cross border wills and estate matters and prepares expert opinion for Israeli Courts. His mailing address is PO BOX 33228, Tel Aviv, Israel. Davidbenasher@walla.com or Tel 0524537214.
**Disclaimer: This Article is for general information purposes only. Readers should take specific advice from a qualified professional when dealing with specific situations.