What are the halachic results of neglecting to plan an estate according to halacha?
Teshurat Shai (R. Solomon Leib Tabak, Hungary, 1832-1908), chapter 159 (cited by Pitchei Choshen, Hilchot Yerushah, Chapter 1, fn 4), addressed the following situation. A man died survived by a son and four daughters. Pursuant to local law, the decedent’s estate was divided equally among his five children. Some time later, one of the daughters and her husband learned that the decedent’s son was the sole halachic heir, as the decedent apparently made no halachically valid provisions to ensure that his daughters received portions of the estate.
Since the decedent’s death, however, the the value of the real estate that the daughter and her husband believed was their inheritance had appreciated. Some of the property had been sold. The daughter and her husband had collected income and paid all expenses associated with the property.
R. Tabak rejected the daughter’s argument that her brother had in effect gifted property to his sisters when he consented to the division of the estate between himself, a yoresh, and his four sisters, who were not yorshim. R. Tabak wrote that the brother may have consented because he believed that local law controlled (which would be an erroneous application of dina demalchuta dina, as discussed in an earlier post). Citing Maharik and Rashdam, R. Tabak wrote that in circumstances where the controlling halachot are commonly misunderstood, transfers are presumed to be prompted by a misunderstanding rather than by an intent to give a gift. This principle applies even if the transferor did not affirmatively claim he never intended the transfer to be a gift.
R. Tabak therefore ruled that the original distribution of the estate was invalid, and that the property held by the sister had to be returned to her brother. Furthermore, wrote R. Tabak, she had to pay her brother all of the income produced by the property since the distribution. Even the income produced by the property after she had sold it had to be returned, since the sale of any real estate was invalid. Property that had been sold and couldn’t be recovered had to paid for at its current appreciated value, not its value at the time of the decedent’s death.
R. Tabak wrote that the sister was entitled to reimbursement for expenses associated with the property, as well as for any of the decedent’s debts she had paid.
While this ruling may appear to be harsh, it is logical and not necessarily surprising. Since according to halacha it is impossible to illegally convert real estate to one’s own possession, the brother remained the owner following the decedent’s death and was entitled to all of the income as well as the appreciation of the real estate. His sister’s illegal or mistaken management of the property essentially created something similar to a constructive trust, where she held the property for her brother’s benefit, and was simply entitled to reasonable reimbursements for debts and expenses paid on her brother’s behalf.
It is also clear that another solution was possible. If (and this is sometimes a big if) at the later date the yoresh is willing and capable, he can consent to an equal distribution upon his understanding that he is entitled to the entire estate.
This fact pattern has no doubt repeated itself many times over, even among people who strictly follow halacha in the course of their daily lives. The failure to properly plan an estate according to halacha can lead to the realization many years or even decades after a legal distribution that the estate’s beneficiaries have been withholding property from the yoresh without adequate consent. According to the Teshurat Shai’s teshuvah, not only must the property be returned, but all income and appreciation associated with real estate — even if sold — must be disgorged.
While this post is not intended to be halachic advice, one who was a beneficiary of an estate in similar circumstances should consult with a competent posek or dayan as to any outstanding obligations to the yorshim and, if necessary, for advice on obtaining proper halachic consents.
Needless to say, proper planning could avoid repeating the problem for the next generation.