Inheritance Order and a Probate Order
Receiving an Inheritance Order or a Probate Order is essential in order for the property of the testator (hereby: “the estate”) to be divided amongst different heirs.
In this article we will discuss the various procedures associated with granting these orders. To whom does one submit the request for receiving the order? What is required to be attached to the request? How can one object to the order being granted? And so on.
What is an Inheritance Order and a Probate Order?
Section 2 of the Inheritance Law, 1965 (hereby: “the law”) it states that there are two ways by which a person can become an heir to an estate:
- Heir through a written will
- Heir through a court ruling (in the absence of a will)
When there is a will, in order to execute it for the purposes of dividing the estate, it is necessary to issue a “probate order.”
When there is not a will, in order to divide the estate amongst the heirs through a court ruling, it is necessary to issue an “inheritance order.”
Where Does One Turn to Receive an Inheritance Order or a Probate Order?
In order to receive these orders, the heirs must submit their request to the Registrar of Inheritance Affairs (hereby: “the registrar”). The registrar has the authority to grant the orders, and the following rights shall be included within them:
- Inheritance Order: who the heirs are according to the court ruling and what is their portion of the estate
Example: A single parent is deceased, leaving behind him two children. The order will certify that the two children are the heirs and that each one receives 50% of the estate.
- Probate Order: certification that the will is valid, except for provisions that the court considers to be null and void.
Filing Objections to the Inheritance or Probate Orders
After the request to receive one of the orders has been filed, the registrar must inform the public (by newspaper) and grant a period of time, two weeks at least, during which an interested party may file an objection to the request.
Who is an “interested party”? An heir who was removed from the will, a creditor of the testator, etc.
Cases When the Registrar of Inheritance Affairs Will Forward the Request to Grant an Order to the Court
As written above, the request to grant the orders must be filed with the registrar. However, Section 67A of the law provides a list of cases in which the registrar will need to forward the request to the family court (hereby: “the court”) to receive a ruling.
The cases in which the request to grant an order will be forwarded to the court are listed below:
- An objection to the request was filed
- The State or one of its institutions are a party of the request
- The Attorney General or his representative saw fit to initiate a procedure in connection with the request or to join to the procedure
- The Administrator General represents a person in the request who was appointed a guardian, a minor or an absentee
- The will connected with the request is an oral will
- The will connected with the request contains a flaw or missing component
- The provisions of the seventh chapter of the law apply to inheritance [link]
- The Registrar of Inheritance Affairs saw it fit to forward the request to the court
What Must be Proven in a Request for an Inheritance or Probate Order?
When the request is filed to receive one of the orders, the requester must prove the following things in the request:
- Death of the testator
It is required to prove the death and time of death of testator, which is done through a death certificate or declaration of death.
Exception: the registrar or the court may permit the applicant to prove the death and time of death in another manner
- Original will (relevant to the request for a probate order)
It is required to attach the original will of the testator (except for “an oral will”).
Exception: the court may permit the attachment of a “copy” of the will or another manner of proof of will that does not include an attachment of the will, and an exception may be made if one of the following conditions are present:
- The original will was destroyed (not in order to cancel it)
- The original will can not be filed
The Authority of the Inheritance Order or the Probate Order
The authority of each one of these orders is upheld all around the world, as it states in Section 71 of the law:
“The Inheritance Order and the Probate Order are effective all around the world as long as they have not been amended or voided.”
Example: When the order decrees that the heir will inherit a certain asset, that heir may register the asset in his name in the registry by virtue of the order.
Amending or Voiding an Inheritance Order or Probate Order
Section 72 of the law states that even after one of the orders is granted, the “interested party” may request from the entity that issued the order (the registrar or the court) to amend or void it for one of the following reasons:
- Facts that were not present at the time the order was given
- Claims that were not made at the time the order was given
In the interpretation of Section 72, the ruling decrees three that conditions must exist, and that the claimant must prove all the conditions for the section to be applicable in order for the order to be amended or voided:
- Was there a fact that was not made known to the court or the registrar before the order was given? Or was there a claim that was not made before the court at the time the order was given?
If the answer is in the affirmative, then we move the second condition:
- If that same fact had been known, or that claim had been made, would a different order have been given?
If the answer is in the affirmative, then we move to the third condition:
- Could the same fact or claim have been presented before the order was given? Or in the event that the fact or claim could only be brought after the giving of the order, was the matter done at the first possible opportunity?
The cast of Turner vs. Turner
In the court ruling on Turner vs. Turner examinations were brought for the court’s consideration concerning the third condition:
- “The degree of delay in filing the request and bringing the new facts and claims before the court.”
- “What is the applicant’s explanation for the delay in filing the request, and what is the level of likelihood or unlikelihood of this explanation.”
- “Was a difficulty created as a result of the delay to correctly clarify the facts of the case, and especially if the postponement of filing the request made it difficult for one of the interested parties in the estate to bring physical evidence before the court to substantiate the claims.”
Interested in Making a Will? Issuing a Request for an Inheritance Order or Probate Order? The Offices of Cohen, Decker, Pex & Brosh are at Your Service
At the offices of Cohen, Decker, Pex & Brosh you will encounter lawyers who specialize in family law and who are also certified mediators. Our lawyers will assist you in drafting a will that reflects your full wishes and will accompany you through the different processes until it is submitted. Additionally, our lawyers will help you with the requests to receive an inheritance order or a probate order and with all the procedures associated with them.