US expert legal opinion

When a petition for probate or succession is submitted in Israel to the Inheritance Registrar regarding a person who was a foreign resident (living outside of Israel) at the time of death, it is necessary to attach a foreign legal opinion. If the deceased was a foreign resident living in the USA, then an American legal opinion is required.

Our law firm helps obtain foreign legal opinions. The current article explains when a US expert legal opinion is required, who is considered a foreign law expert for this purpose, and what the opinion should include.

American Legal Opinion

As stated above, if the deceased lived in the United States (or any other foreign country) and left behind property in Israel, a foreign legal opinion is required in order to inherit that property.

An American legal opinion is also required for enforcement of foreign judgments, as well as class actions, civil lawsuits that include tort and contractual claims, and other matters relating to U.S. law.

Foreign Legal Opinions – Inheritances and Wills

Section 136 of the Succession Law, 5725-1965 provides that the courts in Israel are authorized to hear the inheritance of a person whose place of residence at the time of death was in Israel, or who left behind assets in Israel. Section 137 provides that the inheritance shall be subject to the law of the testator’s place of residence at the time of death.

Sometimes a person leaves behind assets in Israel despite not having been an Israeli resident. For example: the deceased may have resided in New York and, after their death, it turns out that they left behind an apartment in Israel that is registered in their name. In such a case, for the heirs to receive the apartment, they must attach an American legal opinion to the petition for succession or probate.

It is probable that the assets left behind by a foreign resident will be located where that resident lived – in the example above, the USA. The heirs, in this case, will need to file a petition for succession or probate in the USA. However, a probate order in the United States is not automatically recognized in Israel and, to exercise their right to the property in Israel, the heirs will need to obtain a foreign legal opinion and attach it to their petition for probate in Israel.

If the deceased did not leave behind an apartment but, rather, a life insurance policy or a provident fund with specific beneficiaries, there is usually no need for a succession order or probate order, nor for a foreign legal opinion.

What is a Foreign Legal Opinion?

A foreign legal opinion is an opinion of a law expert that follows the format of an affidavit and contains an explanation of the law that applies to the deceased’s inheritance in their main place of residence at the time of their death. In the example above, the deceased’s place of residence was New York, so the foreign legal opinion would state the view New York inheritance law would have of the matter.

Similarly, if the deceased left behind a will and was a resident of another state, such as Illinois – an opinion would need to be submitted examining whether the will is valid according to the laws of Illinois.

The foreign legal opinion must be submitted by someone who is proficient in the laws of the relevant state and has a license to practice law in that state.

Who Is Considered a Foreign Law Expert?

In Jacob Berg and Sons (Furniture) Ltd v Berg East Imports Inc (CA 6796/97), PD 54(1) 697, the Israeli Supreme Court discussed the question of enforcing a judgment given in New Jersey, and whether a foreign law expert who was certified in New York is qualified to give a legal opinion in a New Jersey court as well.

The Supreme Court decided in the affirmative, and stated that it saw no basis for the appellant’s claim that a witness must appear in foreign courts to be considered an expert in foreign law. The Court also stated that it is difficult to say exactly who may be considered an expert in foreign law; however, a lawyer or jurist who deals with law through practice, academia, or otherwise, has the required qualifications to serve as a witness with expertise in the relevant foreign law. If the expert’s testimony is not objected to by any other evidence, the court will tend to accept it, except in cases where it is not convincing.

In addition, and in accordance with the words of the Late Prof. Menashe Shawa in his article “The Nature and Manner of Proving Foreign Law in Anglo-American Law and Israeli Law,” an expert in foreign law is one of the following:

a lawyer (or judge) who practices, or has practiced in the past, the relevant foreign law;
a jurist who holds an official position that requires knowledge of the relevant law system (even if the jurist never practiced that law);
another person (even if that person is not a jurist) who, due to their profession or occupation, was given the opportunity to acquire knowledge of the relevant law.

A Typical Foreign Law Expert – A Lawyer with Experience in Foreign Law

Another interesting case involving the enforcement of a judgment was brought before the Family Affairs Court in Tel Aviv-Yafo. The question arose as to whether two judgments of the Supreme Court of California, regarding child maintenance and legal expenses, were enforceable in Israel. Judge Yehoram Shaked rejected the defendant’s claims that the foreign law expert who presented a legal opinion on behalf of the plaintiff was not authorized to do so.

The Court ruled that the expert’s legal opinion was based on practical experience in all areas of American and Israeli civil law, including American family law. The expert practiced American law, including in California, for many years, and this qualifies as meeting the requirements of being considered a foreign law expert, in accordance with the rules of case law and the literature.

The Court further ruled that the defendant is not obligated by law to present a counter-opinion; but, having not presented one, the defendant’s claims should not be accepted, and there is room to accept the legal opinion of the foreign law expert.

Conclusion

There are cases where the opinion of a foreign law expert is required. It is important to choose an expert who has extensive experience, knowledge, and proficiency in the foreign law of the relevant country. The legal opinion will be provided after examining the relevant data and the concrete circumstances of the case.

Our law firm has lawyers who provide American and other foreign legal opinions. We are in contact with lawyers from the United States and other countries who are also qualified to give legal opinions.

We will be happy to help you with any questions and concerns that you may have on foreign legal opinions – including how to obtain and submit one.