Our relative in Israel disappeared years ago and was never found. How do we have him declared dead so his estate can be dealt with?

Every part of the Israeli inheritance machinery starts from a death certificate, which is exactly the document a family in this position cannot produce. The bank will not discuss the account, the Land Registry will not touch the flat, and the Inheritance Registrar has nothing to open a file on. Israeli law has a dedicated answer to that dead end, and it is a court declaration rather than an administrative form. It is also slower and more formal than most families expect, so it is worth understanding the shape of it before anyone starts gathering documents in Sydney or Melbourne.

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Detailed Answer

The Declaration of Death Law 5738-1978 governs it. Section 1 defines a missing person, a ne'edar, as someone who is neither a war casualty nor a victim of the Holocaust, whose traces have been gone for seven years, where all efforts to trace him have failed and where the circumstances give grounds to presume that he died. Section 2 gives the power to the Family Court, on the application of an interested party or of the Attorney General or his representative, and attaches four alternative jurisdictional connections: the missing person's last place of residence was in Israel, he has property in Israel, he disappeared in Israel, or the applicant resides in Israel. The second of those limbs is the one that matters most to a family living abroad, because an Israeli apartment or bank account is enough to found the court's jurisdiction even where nobody in the family has lived in the country for a generation. Section 3 deals with the date of death, which the court fixes on the evidence where the evidence allows, and where it does not, the death of a missing person is treated as having occurred at the end of the seven years from the day his traces disappeared. The declaration is not irreversible. Section 4 lets the court correct or cancel it where evidence is later brought showing that the person is alive or that the particulars were wrong, which is the safeguard that makes the whole mechanism acceptable. Procedure comes from the Declaration of Death (Procedure) Regulations 5713-1952, and an applicant who is not the Attorney General must support the application with an affidavit setting out the facts relied on.

From Australia the practical burden is evidential rather than legal. The court is being asked to make a finding about a person's death without a body, so it wants a documented account of the disappearance and of the search: the last confirmed contact, any police report, enquiries made of hospitals, the Population and Immigration Authority and the National Insurance Institute, whether the Israeli bank account has moved at all in the intervening years, and whether any passport was used. The Attorney General's representative is a party to these applications and will usually take a position, which is a large part of why they are not quick; allow six to twelve months from filing on a properly evidenced file, and considerably longer where the record is thin. Everything sworn in Australia has to be signed before a notary and apostilled by the Department of Foreign Affairs and Trade, which charges AUD 102 and turns documents around in about three business days, and an Israeli lawyer needs a specific power of attorney authenticated the same way. Once the declaration issues it functions as the proof of death that Section 68 of the Succession Law 5725-1965 requires, and the ordinary succession route opens: an application to the Inheritance Registrar at a fee of NIS 597 on paper or NIS 507 online, and from there the release of the bank account and the transfer of the property. Note that the estate has been accruing liabilities throughout the seven years, since arnona, building committee dues and property insurance do not pause because an owner is untraceable. A different problem, easily confused with this one, is an estate where the deceased is known to have died but one of the heirs cannot be located; that is dealt with in our answer on an Israeli inheritance where an heir cannot be found.

In Practice: Under Section 1 of the Declaration of Death Law 5738-1978 a person qualifies as missing once his traces have been gone for seven years despite all efforts to trace him. Section 2 gives jurisdiction to the Family Court on any of four connections, including simply that the missing person has property in Israel, and the Attorney General's representative takes part in the proceeding. Section 3 fixes the date of death at the end of the seven years where the evidence does not establish another date. Allow six to twelve months for a well-evidenced application, after which the declaration serves as the proof of death required by Section 68 of the Succession Law 5725-1965 and a succession order can be applied for at NIS 597 on paper or NIS 507 online.

When to Consult a Lawyer

• The seven years have not yet run and the estate is bleeding money. There are interim routes for preserving Israeli property and stopping arrears while the period completes, and they are applied for separately from the declaration itself.
• The disappearance has any criminal or financial colour to it, such as debts, a business collapse or an open police file. The Attorney General's representative will scrutinise those applications closely, and creditors may appear once a declaration is published.
• Someone else has already been dealing with the property. Occupation, rent collection or attempted transfers during the missing years create claims that have to be unwound after the declaration, and they are far easier to address before a succession order is issued than afterwards.

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Speak With an Israeli Attorney

We assemble the search evidence the Family Court expects, run the application against the Attorney General's representative, and take the estate through to a succession order and the release of the Israeli assets once the declaration issues.

Contact us for a confidential initial consultation.