Our Israeli inheritance case turns on New York law. How do we prove American law to an Israeli court?

An American family arrives at an Israeli hearing convinced the case is simple, because under the law of the deceased's home state the answer is obvious. The Israeli judge is not permitted to agree. Foreign law in Israel is a fact, on the same footing as a valuation or a medical condition, and a fact has to be proved by somebody. New York law reaches an Israeli file only through a written opinion from a qualified New York lawyer, filed as expert evidence. Left unproved, it does not apply at all.

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Detailed Answer

The reason this matters so often in estate files is Section 137 of the Succession Law 1965, which sends the succession to the law of the deceased's place of domicile at the time of death. A father who spent his last thirty years in Florida, holding a Tel Aviv apartment and an Israeli bank account, dies domiciled in Florida, and Florida law governs who inherits. That answer only helps the heirs who bring Florida law into the record. The Civil Procedure Regulations 5779-2018 require an opinion on foreign law to come from an expert in that law, which in practice means a member of the relevant state bar who sets out the statutory provisions, the case law, and how they apply to these facts, with the sources attached. The opposing side is entitled to file a competing opinion and to cross-examine yours, and Israeli judges do weigh one American opinion against another rather than deferring to the first one filed. Where the point is narrow and both sides are represented, the cheaper path is often a joint expert or an agreed statement of the foreign rule.

The trap is what happens when nobody does this. Israeli courts fall back on the presumption of identity of laws, deciding the case as though the foreign law were the same as Israeli law. For an American family that presumption is rarely neutral. Israeli law recognises an unmarried partner as an heir under Section 55 of the Succession Law 1965 and gives a surviving spouse a fixed statutory share, and a common law state gives neither in the same terms. Our answer on which law governs a non-resident's Israeli estate sets out the choice of law framework the opinion has to be written against.

In Practice: Under Section 137 of the Succession Law 1965 the succession follows the law of the deceased's domicile at death, and that foreign law must be proved as a fact by an expert opinion under the Civil Procedure Regulations 5779-2018, filed at the Family Court that holds the file. A usable opinion from a US attorney, covering intestacy shares, spousal rights and any elective share, typically costs USD 3,000 to USD 8,000 and takes three to six weeks to prepare, and the Israeli court fee on a contested estate claim is 2.5% of the value in dispute with a Magistrates Court floor near NIS 773. Budget the opinion at the start, because a court that has already decided on the presumption of identity of laws will not usually reopen the point.

Distance changes the logistics rather than the rule. The expert does not have to fly to Israel: the opinion is filed in English with a certified Hebrew translation, and where cross-examination is ordered it can be taken by video link with the court's permission, so an attorney in Chicago gives evidence at a Tel Aviv hearing without leaving the office. Two things do go wrong from abroad. The first is timing, because the opinion has to be attached to the pleading rather than produced later when the argument turns out to matter, and Israeli courts are strict about late expert evidence. The second is scope. American lawyers instructed loosely tend to write an essay on the law of the state, when what the Israeli judge needs is a direct answer to a defined question, with the statute quoted, the authorities exhibited, and the conclusion applied to the specific family. An Israeli lawyer should draft the questions before the American lawyer starts writing.

When to Consult a Lawyer

• The deceased's domicile is genuinely arguable, for instance a dual citizen who kept an Israeli apartment, an Israeli identity card and an American home, because domicile is decided first and the whole choice of foreign law follows from it.
• Your opponent has filed a foreign law opinion and you have not, since the practical effect is that their version of your home state's law becomes the court's version unless it is answered.
• The foreign law produces an outcome Israeli law would not, such as disinheriting a spouse who would take a statutory share in Israel, because that is exactly the situation in which failing to prove it costs the client the case.

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Speak With an Israeli Attorney

We frame the questions for your home country lawyer, file the opinion in the correct form and translation, and argue the choice of law point before the Israeli court decides the case on the presumption that American law looks like Israeli law.

Contact us for a confidential initial consultation.