Estate Planning Series Part I: Halachic and Moral Considerations of Planning Your Estate by Rabbi Chaim Jachter and Martin M. Shenkman, Esq.


Editor's note: For the reader's convenience, due to the large size of the "Estate Planning Series", a table of context can be found here

Elul, Bereshit, and New Beginnings

           Parshat Bereshit represents a new beginning, and for many is a time to recommit to the personal promises and goals set during the recent Yamim Noraim.  Within this context, Kol Torah begins a new series analyzing a group of topics which are so often ignored on a personal level because of the emotional difficulty of addressing them: Yerusha, health care decisions, and related issues.



           Introspection, self reflection, analysis, thought...that result in a new level of religious commitment, that generate goals for further self improvement, and that most importantly lead to Teshuva were the essence of the Yamim Noraim.  Hopefully, each of us has completed the Yamim Noraim with a new commitment to observe a particular Mitzva which we had been lax in observing, a promise to be more scrupulous with regard to particular Midot we had perhaps overlooked, and a sense of inspiration to take us into the new year.  With the beginning of Bereshit, hopefully each of us will remember and reaffirm these commitments.  An area of considerable importance which many of us have overlooked, and which has profound implications to this process, is that of estate planning.


The Forgotten Halacha

           There is one fundamental reason we must observe each of the Mitzvot, and that is because God commanded us to do so.  God gave the Torah at Har Sinai to teach us how to live our lives through observance of the Mitzvot.  This, then, is the basic creed of Judaism: that every Mitzva should be observed.  How many of us have observed the Halachot pertaining to Yerusha?  According to almost all Poskim (to be explored in depth in a later article), if one fails to draft a secular will and take affirmative steps to assure that his estate plan conforms to the Halachic requirements for Yerusha (which typically entails the execution of a Shtar Chov), he violates Halacha by his inaction.  If he has addressed this, but violated the spirit of the many Torah values governing his actions, has he really complied?  The Yamim Noraim were a time of introspection and a time of resolving to undertake more careful observance of Mitzvot.  Perhaps, now with the begining of Bereshit and everyone's begining to carry out the commitments they made, these Halachot can receive attention.


Acknowledgement in God's Sovereignty

           The Halachot of Yerusha are not addressed merely by drafting a will in accordance with Halacha (which will be explored in later issues of Kol Torah).  The issues are much more profound.  The Gemara on Rosh Hashana 16a states that Hashem said concerning Rosh Hashana:  !/9& -51* "9!: %:1% /-,&*&;, that we should recite Pesukim that speak of sovereignty before God.  Acknowledging the sovereignty of God over all of our worldly possessions, and over the world itself, is one of the themes of Rosh Hashana.

           In addition to this theme of Rosh Hashana, many Halachot remind us of God's sovereignty over material possessions.  Shemitah, Yovel, Shabbat, and Yerusha all serve to remind us of the fact that there is but one Owner of all property, God.  The Halachot of Yerusha, on one level, remind us that all of our worldly possessions, the results of a lifetime of toil, are not ours to give away in any fashion we wish.  While the Rabbis have developed mechanisms to assure flexibility in controlling how we bequeath assets, even those steps themselves remind us of God as the ultimate Owner of all material wealth (see Sefer Hachinuch 400).  During this introspective time we should have all endeavored to obtain perspective as to the real meaning of wealth.

           This theme is further echoed in one of the prayers which is part of the motif of the Yamim Noraim, Avinu Malkeinu.  This includes a petition to inscribe us "259 5912% &,-,-%, in the book of sustenance and support.  Many even add a supplemental prayer following this verse asking for material success.  But this is a prayer intended to request sustenance to enable us to pursue the service of Hashem, not to be preoccupied with material needs.  Estate planning is not merely about the transmission of wealth, it is about the transmission of values and a way of life.


Community Responsibility

           In Tefilla during the Aseret Yemai Teshuva we say ,;"1& "259 (**., "inscribe us in the book of life."  During Rosh Hashana, we pray both individually and as a community.  We were hopefully judged, both individually and as a community, for a good year.  Our responsibility to the community can take so many forms, Tzedakah being a common one.  In Musaf we said &;:&"%, &;5-%, &7$8%....  Charity and estate planning go hand in hand.  The Chofetz Chaim encouraged people to make large charitable gifts in their wills (Ahavat Chessed 3:4).  Throughout the country on Rosh Hashana, Orthodox Rabbis were asked to speak of the National Jewish Day School Scholarship Committee program, "The Five Percent Mandate."  This program seeks to have everyone commit five percent of their estate to fund Jewish education, the key to our future as a people.  There are countless ways to address the fundamental Jewish value of charitable giving as part of one's estate plan.  It can also be done in a manner that sets an example for your children as to the importance of charitable giving, &:11;. -"1*+.  Many charitable techniques raise yet further Halachic issues, such as Ribbit (interest), that must be addressed.


Preserving Shalom

           The Halachot of Yerusha include a subtle, and in many ways profound, lesson.  Yerusha is structured so that family members must not permit rivalries or animosities to interfere with their obligations and family relationships. For example, a parent should not permit favoritism of one child over another to influence his following Torah law, nor his behavior toward his children.  Chazal caution us against giving even the smallest degree of advantage to one child over the others to avoid causing jealousy (Tur and Shulchan Aruch Choshen Mishpat 282; Bava Batra 133b).


The Kittel

           On Yom Kippur, we stood before Hashem in wearing a white Kittel.  A Kittel is similar to that which will one day be our last garment.  The somber tone that this Minhag creates hopefully helped each of us to understand the seriousness of the day at hand, and the heartfelt Teshuva we strived to achieve.  Donning a Kittel, while being conscious of its implications, was not an easy task emotionally.  These are the same difficult emotions involved in addressing the life and death issues of a living will, the instruction letter to our executor as to the care of our children, and estate planning generally.  Addressing these issues is vital to minimizing the emotional difficulties one's family will face if, God forbid, he suffers a traumatic accident or illness.



           Each of us has responsibilities to parents, children, spouse, and others.  If we do not take affirmative steps to meet those obligations through providing for the financial well being of our loved ones and minimizing their trauma in the event we experience an emergency, they will suffer.  We will have also violated our Torah obligations as children, parents, and spouses.  If each of us does not undertake some measure of responsibility to support the charities and institutions our communities rely upon, what will the future hold?  The Yamim Noraim were the ideal time reflect upon these responsibilities.  Parshat Bereshit is the time to act upon these reflections.  If one has endeavored to lead his life as an observant Jew, he owes it to himself to assure that during the time of illness, and upon his ultimate demise, the Torah values that were dear to him will be similarly respected.  With the complexities of the legal, tax and medical systems, unless one takes affirmative steps to assure this, it cannot be expected.

           In the upcoming issues of Kol Torah, we will examine different Halachic issues affecting estate planning.  While these articles will raise many questions, they will provide a framework to pursue your own planning within an Halachic framework.

           May we all have the strength and resolve to begin implementing the personal commitments made during the Yamim Noraim.

Estate Planning Series Part II: Yerushah - An Overview of The Torah's Instructions for Inheritance; Shtar Chatzi Zachar by Rabbi ChaimJachter and Martin M. Shenkman, Esq.

In Vitro Fertilization by Rabbi Chaim Jachter