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Probate lawyer

What is the difference between an inheritance order and a probate?

Obtaining an inheritance order or probate is necessary for the bequeather’s property (to be referred to hereinafter as the “Estate”) to be distributed to the various heirs.

In this article, we discuss the various procedures concerning the grant of an inheritance order or probate: Who should you contact to obtain the order or probate? What should you attach to the application? How can you object to the order or probate? And more.

What is an inheritance order?

Section 2 of the Succession Law, 5725-1965 (hereinafter: the “Law”) stipulates two ways in which a person may inherit the Estate of a deceased person.

• An heir by will.
• An heir by law (in the lack of a last will).

In the event that the decedent has failed to prepare a last will, an “inheritance order” must be issued to distribute the Estate to the heirs by in accordance with the law. An inheritance order lawyer can assist you with this.

An inheritance order states the identity of the heirs of the decedent, and each of their shares of the Estate, after its scope is investigated.

What is a probate?

If the decedent has prepared a last will, then in order to execute it for the purpose of distributing the Estate, a “probate” must be issued. A probate is provided with respect to the assets included in the will.

Who should you contact to obtain an inheritance order or probate?

To distribute the Estate, you’ll need to obtain an inheritance order or a probate.

For the purpose of obtaining an inheritance order or probate, the heirs must submit an application to the Inheritance Registrar (hereinafter: the “Registrar”). The Registrar has the authority to grant the order or probate, and their content includes the following rights:

• Inheritance order: The identity of the lawful heirs, and their relative share of the estate.

For example: A single parent has passed, survived by two children. The order or probate would declare that both children are the heirs of the decedent, and each of their shares in the estate equals 50%.

• Probate: A declaration that the last will is (formally) valid, except for provisions which the court has found to be null.

The price of an inheritance order

• A fee in the amount of ILS 505 must be paid to submit an offline application for the provision of an inheritance order or probate.
• A reduced fee in an amount of ILS 429 must be paid to submit an online application for the provision of an inheritance order or probate.

If you require the assistance of an inheritance lawyer with the submission of the applications and the conducting of related procedures, then, according to the Bar Association Rules (Recommended Minimum Tariff), 5760-2000, the fee with respect to such work is determined by the following standard:

An application for a probate or inheritance order or the appointment of an estate administrator, or a combined application of the above – without objections: 1.5% of the estate’s value, but no less than ILS 3,652.

If an objection is filed, the fee would be as above, added with 25%.

Filing an objection to an inheritance order or a probate

After an application is submitted to obtain an inheritance order or probate, the Registrar must announce this in public (a daily newspaper) and to allow a period of at least two weeks, in which any interested party may file an objection to such application. The maximum period of time for filing an objection would be as long as the order or probate has not yet been issued.

Who is “an interested party”? Any person who believes that there is some reason that should prevent the order from being issued. For example: an heir who has been disinherited, a creditor of the bequeather, etc.

Cases in which the Inheritance Registrar would transfer the application to provide an order or probate to the court

As mentioned above, the application for an inheritance order or probate must be submitted to the Registrar. However, Section 67a of the Law details a list of cases in which the Registrar is obliged to transfer the application to the family court (hereinafter: the “Court”) to discuss it and provide a decision.

These are the cases in which the inheritance order or probate application is transferred to the Court:

• If an objection was filed with respect to the application
• If the state of any of its institutions are a party to the application
• If the Attorney General or their representative has seen fit to initiate a procedure with respect to the application, or to join a procedure
• If, as part of the application, the Administrator General represents a person for whom a guardian has been appointed, a minor, or an absentee
• If the subject last will of the application is an oral last will
• If the subject last will of the application includes some defect or fault
• If the provisions of Chapter Seven of the Law apply to the inheritance
• If the Inheritance Registrar has seen fit to transfer the application to the Court

What should an inheritance order or probate application prove?

When an application to receive an inheritance order or probate is submitted, the applicant must prove the following in their application:

• The bequeather’s passing

The bequeather passing and the time of passing must be proved. This is done by attaching a death certificate or a statement of death.

Exception:  The Registrar or the Court may permit the applicant to prove the death and the time of death in another way.

• Original last will (relevant to the application for probate)

The bequeather’s original will must be attached (except in the event of an oral last will).

Exception: The Court may permit the attachment of a “copy” of the will or another proof of the will which does not include the attachment of the original. An exception can be granted based on one of the following conditions:

• If the original last will has been destroyed (for purposes other than its cancellation)
• If the original last will cannot be submitted

The power of an inheritance order or probate

According to Section 71 of the Law, the power of an inheritance order or probate is valid worldwide: “An inheritance order and probate are valid worldwide, so long as they have not been amended or canceled.”

For example, if the order stipulates that an heir should inherit a certain asset, then based on such order, the heir could register the asset to their name in the asset’s registry.

Amendment and cancellation of an inheritance order or probate

Section 72 of the Law provides that even after an order has been granted, an “interested party” may ask the entity providing the order (either the Registrar or the Court) to amend or cancel it for one of the following reasons:

• Facts that were not available at the time of the granting of the order
• Claims that have not been made at the time of the granting of the order

Ruling precedent has interpreted Section 72 while setting three conditions, which must be proved by the person wishing to apply this Section, in order for the order or probate to be canceled. The conditions are as follows:

• The existence of any fact not brought before the Court or the Registrar prior to the grant of the order or probate. Or – the existence of a claim which has not been made before the Court while granting the order or probate.

If the answer is positive, we move on to the second condition:

• Would such fact or claim lead to the granting of a different order or probate, had it been brought up beforehand?

If the answer is positive, we move on to the third condition:

• Could such fact or claim have been brought up prior to the granting of the order or probate? Or in case such fact or claim could only have been brought up following the grant of the order or probate, was this done upon the first reasonable opportunity?

The ruling of Turner vs. Turner provides criteria to be considered by the Court with respect to the third condition:

a. “The measure of delay in the submission of the application and in bringing up the new fact and claim before the Court.”

b. “The applicant’s reason for the delay in submitting the application, and the reasonableness, or unreasonableness, of such explanation.”

c. “Whether such delay has created any difficulty in investigating the facts of the case, and especially whether the submission of the application makes it harder for one of the estate’s interested parties to bring evidence before the Court in order to base their claims.”

Interested in creating a last will? Need to obtain an inheritance order or probate? We’re the firm for you.

Our law firm includes lawyers specializing in family and inheritance law, and also certified as mediators. Our lawyers can help you create a last will to reflect your full wishes, and assist you throughout the various procedures until its deposit. In addition, the lawyers at our firm can assist you with inheritance order or probate applications, and the procedures related to them.