IsraelLaw
Most foreign clients who own an Israeli apartment and have children from an earlier marriage arrive at the same problem within about ten minutes of the first meeting. They want their current spouse to keep living in the Tel Aviv or Jerusalem flat after they die. They also want the flat to end up with their own children rather than the spouse's children, or the spouse's next partner. In New York or London the answer would be a life interest or a trust. In Israel the answer is usually Section 42 of the Succession Law.
It works well for that purpose. It also has hard edges that surprise people who assume it functions like an Anglo-American life estate. The first heir is a real owner, not a life tenant, and Israeli courts have been reluctant to strip that ownership of its ordinary powers. Understanding where the line falls is the difference between a will that protects your children and a will that hands them a lawsuit.
1. What a Heir After Heir Clause Is
Section 42(a) of the Succession Law allows a testator to direct that one person inherits, and that a second person inherits after them. The trigger for the second entitlement can be the first heir's death, the arrival of a stated date, or the fulfilment of a condition set out in the will, whichever comes first. The Hebrew term is yoresh achar yoresh, literally "heir after heir."
The structure is a single gift split across time rather than two separate gifts. Both heirs take from the testator's estate, not from each other. That distinction matters in practice: when the second heir's turn arrives, the property passes under the original will, not under the first heir's estate, so it is not exposed to the first heir's own probate proceedings and, in principle, not available to the first heir's personal creditors after death.
Typical Israeli uses are narrower than clients expect. A second marriage where each spouse has children from a prior relationship accounts for most of them. Others include a testator who wants an adult child with a gambling problem or a difficult spouse to have the use of an asset without the power to leave it outside the family, and parents of a disabled child who want the child provided for during their lifetime with the remainder returning to siblings.
A workable Israeli clause names the asset, the first heir, the trigger, and the second heir in one sentence, then deals with the powers separately. Something like: "I bequeath my rights in the apartment at [address], Gush [block] Chelka [parcel], to my wife [name], and after her death to my children [names] in equal shares, pursuant to Section 42 of the Succession Law 5725-1965." Israeli notaries and the Registrar of Inheritance Affairs (HaRasham LeInyanei Yerusha) will look for the express statutory reference. Wills drafted abroad that describe a "life interest" or "life tenancy" without naming Section 42 routinely trigger a request for clarification from the Registrar, which adds roughly two to four months to a probate file that would otherwise have closed in three to six months. Identify the property by its Gush and Chelka numbers from the Land Registry extract, not by street address alone.
2. Heir After Heir vs. Heir Instead of Heir
The Succession Law contains two provisions that look similar and do completely different things. Confusing them is the single most common drafting error I see in wills prepared abroad.
Section 41 is yoresh takhat yoresh, heir instead of heir. It names a substitute who takes only if the first heir fails to inherit at all: the first heir dies before the testator, renounces the inheritance under Section 6, or is disqualified. It is a backup. If the first heir does inherit, the substitute never takes anything and the property is theirs outright.
Section 42 is successive. The first heir does inherit, holds the property, and the second heir takes afterwards. Both people receive something.
A will that says "to my wife, and if she is not alive, to my children" is a Section 41 substitution. If the wife survives the testator by a single day, the children are cut out entirely and the apartment forms part of the wife's estate on her own death, distributable under her will or to her own heirs. Clients who intended a successive arrangement and wrote a substitution clause have, in effect, disinherited their own children without noticing.
Read the clause and ask when the second name takes. If the answer is "only if the first name never inherits," it is Section 41. If the answer is "after the first name has inherited and then dies," it is Section 42. The phrase "if she is not alive" points at Section 41; the phrase "after her death" points at Section 42. Israeli case law treats the testator's intention as controlling where the language is ambiguous, but proving intention means a contested hearing at the Family Court (Beit HaMishpat LeInyanei Mishpacha), and a contested succession file with expert evidence commonly runs NIS 25,000 to NIS 60,000 per side in fees before it reaches judgment. Two clear words in the will cost nothing.
3. What the First Heir May and May Not Do
This is where foreign expectations break. Section 42(b) provides that the second heir takes what the first heir leaves behind at the time the entitlement arises. The first heir is a full owner in the meantime, with the ordinary powers of an owner: to live in the apartment, rent it out and keep the rent, mortgage it, sell it, or give it away.
If the surviving spouse sells the apartment and spends the proceeds, the children take nothing. The clause is not a guarantee that a specific asset survives. It is a direction about whatever remains.
The one thing the first heir cannot do is defeat the second heir by will. A testamentary disposition by the first heir over property held under a Section 42 clause has no effect on the second heir's right. That single limitation is what makes the mechanism useful at all, because it removes the scenario clients fear most: the surviving spouse remarries, writes a new will, and leaves the flat to the new partner.
You can restrict the first heir's lifetime powers in the will, and Israeli practitioners regularly do. A clause prohibiting sale, or requiring the written consent of the second heirs before any transfer, is common. Courts will give effect to a reasonable restriction, though a blanket prohibition on any dealing whatsoever may be read narrowly, particularly where the first heir needs to sell to fund care or medical costs. Draft the restriction with an escape valve rather than an absolute bar.
A drafting pattern that holds up reasonably well: the first heir may sell the apartment, but the net proceeds must be deposited in a designated bank account or reinvested in a replacement residence which becomes subject to the same Section 42 direction, and the first heir may withdraw up to a stated annual sum, say NIS 120,000, for living and medical expenses without accounting to anyone. That gives the surviving spouse real flexibility while keeping the capital traceable. Pair it with a caveat (he'arat azhara) registered at the Land Registry in favour of the second heirs, which costs a filing fee in the region of NIS 150 to NIS 200 and makes it practically impossible for a buyer's lawyer to miss the arrangement. Without a registered note, the burden falls on the second heirs to chase proceeds after the fact, and by then the money has usually moved.
4. The One-Tier Limit and Who Can Be a Second Heir
Israeli law does not let you control property indefinitely. Section 42(d) permits a single successive tier. You may name a first heir and a second heir, and a direction purporting to name a third heir after the second is void. The property vests in the second heir absolutely, and from that point it moves under the second heir's own will or under the intestacy rules.
Clients who want a family apartment held across three generations cannot achieve it through the Succession Law. They need a trust under the Trust Law 5739-1979, or an Israeli company holding the property with a shareholders' agreement, both of which carry running costs and tax consequences that a simple will does not.
The second heir must also be capable of inheriting when their turn arrives. Section 42(c) treats the direction as lapsing if the second heir is not alive at that moment. A second heir who is not yet born when the testator dies is generally acceptable provided they are born within the period the law allows, which covers the common case of grandchildren who do not exist yet at the date of the will.
Where a second heir is a minor when the entitlement arises, the property is managed by a guardian, and dispositions of a minor's real property require approval from the Family Court, which involves the Administrator General (HaApotropos HaKlali) at the Ministry of Justice. Budget several months for that approval and expect the court to want evidence that the transaction serves the child's interest, not the family's convenience.
Section 42(c) produces a result most testators would not choose. If your son is named as second heir and dies at 55 while your widow is still living in the apartment at 80, the successive direction lapses and the property stays with your widow's estate. Your grandchildren get nothing, even though the whole point of the clause was to keep the flat in your bloodline. The fix is one extra sentence combining Sections 41 and 42: "and after her death to my son [name], and if my son does not survive her, to his children in equal shares." That layered wording is expressly permitted and is not treated as an impermissible third tier, because the replacement stands in the second heir's shoes rather than taking after them. I have seen files at the Registrar where this sentence was the only thing standing between a family and a two-year litigation.
5. Probate Orders and Land Registry Recording
A Section 42 clause only bites once the will is probated. The application for a probate order (tzav kiyum tzava'a) goes to the Registrar of Inheritance Affairs, an administrative body under the Ministry of Justice with offices in Jerusalem, Tel Aviv, Haifa, Be'er Sheva and Nazareth. The filing fee is currently around NIS 545 for the application, plus roughly NIS 70 for each certified copy of the order, and a newspaper publication fee in the region of NIS 130. Check the current schedule before filing, since these figures are updated periodically.
The Registrar publishes the application and allows a window for objections, commonly 14 days from publication. If nobody objects and the file is complete, an uncontested order typically issues within three to six months. An objection moves the whole file to the Family Court, where a contested matter runs one to three years.
Once the order issues, the first heir registers ownership at the Land Registry (Tabu) by submitting the probate order together with the will. Israeli inheritance itself is not a taxable sale: Section 4 of the Land Taxation (Appreciation and Purchase) Law 5723-1963 provides that inheritance is not a "sale," so no purchase tax or betterment tax arises on the transfer to the first heir, and none arises again when the second heir takes. Tax appears only when someone actually sells, and the acquisition date and cost basis for that later sale are generally those of the deceased.
The registrar is supposed to record the Section 42 restriction against the first heir's ownership when the will is filed alongside the probate order. In practice the annotation is sometimes omitted, especially where the will is long and the clause sits deep in the document. Pull a register extract (nesach tabu) after registration completes, which costs a few shekels online through the Land Registry and Settlement Authority portal, and read the restrictions section. If the note is missing, apply for correction immediately rather than waiting until the first heir dies. For property held through the Israel Land Authority or a housing company rather than registered in Tabu, the same check has to be made against that body's records, and their procedures for recording successive rights are less standardised. Second heirs living abroad should diarise this: nobody in Israel will do it for them.
6. When the Second Heir's Right Arises
Death of the first heir is the usual trigger, but Section 42(a) also allows a date or a condition. A testator can direct that the apartment passes to the children when the surviving spouse reaches a stated age, on remarriage, or when the spouse ceases to live in the property. Whichever event comes first governs.
Conditions tied to remarriage deserve caution. Israeli courts weigh testamentary freedom against public policy and constitutional protection of personal autonomy, and a condition that operates as a penalty on remarriage can be challenged. A condition framed around the practical purpose, such as the spouse ceasing to use the apartment as their primary residence, tends to be more defensible than one framed around their marital status.
Condition-based triggers also create an evidence problem. Somebody has to prove the condition occurred, often years later, and the second heirs may be abroad and unaware. If you use a condition, say in the will who determines whether it has been met and how, and consider requiring the first heir to notify the second heirs in writing within a stated period.
7. Section 42 Compared With Trusts and Mutual Wills
Section 42 is cheap, familiar to every Israeli probate registrar, and needs no ongoing administration. Its weakness is the first heir's power to dissipate the asset and the single-tier ceiling.
An Israeli trust under the Trust Law 5739-1979 solves both. A trustee holds legal title, the beneficiaries' interests can extend across generations, and the terms can be as restrictive as the settlor wants. The cost is real: a trust deed drafted properly, a trustee who charges annually, tax reporting to the Israel Tax Authority under the trust taxation chapter of the Income Tax Ordinance, and complications where beneficiaries or the settlor are foreign residents. For a single apartment worth NIS 2 to 4 million, the administration usually outweighs the benefit. For a portfolio of properties or a family business, it often does not.
Mutual wills under Section 8A are a different tool addressing a different fear. They bind spouses who make reciprocal wills, restricting the survivor's ability to change their will after the first death, with specific consequences set out in the section for a survivor who does change it. They protect against the survivor rewriting their own will. They do not create a successive interest in a particular asset, and they do not stop the survivor from spending. Many Israeli wills for second marriages use Section 42 and Section 8A together, each covering a gap the other leaves open.
A lifetime gift with a retained right of residence is the fourth option, popular among elderly parents who transfer the apartment to their children now and register a residence right in their own favour. It removes the asset from the estate entirely and avoids probate. It also gives up control permanently, exposes the property to the children's divorces and creditors, and can trigger purchase tax for the children at rates that make the transfer expensive. Under Section 8(a), an agreement about a future inheritance made during a person's lifetime is void, so this route has to be structured as a genuine present transfer, not a promise about what happens on death.
For a couple in their sixties, each with adult children from a previous marriage, holding one Israeli apartment plus bank accounts: a Section 42 direction over the apartment in favour of the surviving spouse and then the testator's own children, a restriction requiring the second heirs' written consent to any sale with a carve-out for medical necessity, a replacement clause under Section 41 covering the death of a second heir, and separate outright gifts of the bank accounts so the survivor has liquidity that nobody can question. Add mutual will provisions under Section 8A if both spouses are signing at the same time. Drafting this properly costs somewhere between NIS 4,000 and NIS 12,000 depending on complexity, against contested probate figures that start around NIS 25,000 per side. It is the cheapest insurance in Israeli estate planning.
8. Drafting Steps for Foreign Testators
If you hold Israeli assets and live abroad, the sequence below covers the ground that causes trouble later.
- Make a separate Israeli will for Israeli assets. A short Hebrew or bilingual will covering only Israeli property, expressly stated not to revoke your foreign will, avoids the translation and interpretation problems that stall probate applications. Say clearly in each will that it deals only with assets in that jurisdiction.
- Identify the property correctly. Gush and Chelka numbers from a current register extract, and the sub-parcel number for an apartment in a registered condominium. Street addresses change and buildings get renumbered.
- Cite Section 42 expressly and state the trigger, the second heirs, and any restriction on the first heir's powers in separate sentences.
- Add a replacement second heir under Section 41 so the direction does not lapse if your chosen second heir predeceases the first.
- Deposit the will with the Registrar of Inheritance Affairs if you want certainty that it will be found. The deposit fee is modest, in the region of NIS 110, and it removes the risk of a will sitting in a foreign safe that nobody in Israel knows about.
- Tell the second heirs the clause exists. Rights that nobody knows about do not get enforced. A second heir in Toronto who learns about the apartment fifteen years after the fact, once it has been sold and the proceeds spent, has a claim on paper and nothing in reality.
One more point on capacity. Wills made by elderly testators in second marriages attract challenges under Sections 26 and 30 of the Succession Law, alleging lack of capacity or undue influence by the new spouse. Where a Section 42 clause favours a second spouse over adult children, the children have both the motive and a familiar legal route to contest it. A contemporaneous medical opinion on the day of signing, and signing before a notary with two independent witnesses who have no interest in the estate, costs a few hundred shekels and defeats most of these claims before they start.
Frequently Asked Questions
Yes, unless the will restricts him. Section 42(b) lets the first heir sell, mortgage or give away the property while alive, and the second heirs take only what remains when their turn comes. What he cannot do is redirect it by his own will. If you want the apartment itself preserved rather than whatever is left of it, the will must say so expressly, and even then an Israeli court may read a total ban on sale narrowly where the spouse needs funds for care.
One. Section 42(d) permits a single successive tier: a first heir and a second heir. A direction naming a third heir to take after the second is void, and the property stays with the second heir absolutely. Testators who want control across three generations generally need a trust under the Trust Law 5739-1979 or a company structure rather than a Section 42 clause.
The successive direction usually lapses. Under Section 42(c) the second heir must be capable of inheriting at the moment the entitlement arises, so a second heir who dies during the first heir's lifetime takes nothing, and the property remains with the first heir or that heir's estate. This is why careful clauses name a replacement second heir, commonly the deceased second heir's own children, instead of relying on the default rule.
It should. When the probate order and will are submitted to the Land Registry, the first heir is registered as owner and the registrar records the Section 42 restriction. Practice varies between offices, so pull a register extract after registration and apply for correction if the annotation is missing. A buyer who relies on a clean extract without reading the probate file is taking a real risk.
It can be. Israeli courts apply Israeli succession rules to Israeli assets where the deceased was domiciled in Israel, and will accept a foreign will valid in form under the law of the place it was made. The usual obstacle is translation rather than validity: a common law life interest drafted in New York or London does not map neatly onto Section 42, and the Registrar may request clarification. A short Israeli will covering only Israeli assets avoids most of that friction.