Have you ever thought about what happens to someone’s property when they pass away? It’s a topic we often avoid, but it’s one that affects all of us.
In Indonesia, the way estates are distributed has undergone a significant transformation over the years. This shift, from relying on intestacy (inheritance without a will) to the increasing use of a last will, has been influenced by legal frameworks, cultural changes, and personal preferences.
Let’s dive into this fascinating topic together.
The Traditional Approach: Intestacy
For a long time, many people relied on intestacy to handle inheritance. Intestacy means that when someone dies without leaving a will, their estate is distributed according to the default rules set by law. In Indonesia, these rules are rooted in the Civil Code, the Islamic Compilation Law (Kompilasi Hukum Islam or KHI), and customary (adat) law, depending on the deceased’s background.
Under the Civil Code, which applies primarily to non-Muslims, inheritance is divided among heirs based on a strict hierarchy. The closest relatives, like children, spouses, and parents, are given priority. For Muslims, the Islamic Compilation Law governs inheritance, following the principles of Faraid (Islamic inheritance law). This system allocates specific shares to heirs, such as one-third for the spouse and two-thirds for the children, with sons typically receiving double the share of daughters.
While these systems ensure that estates are distributed, they don’t always align with the deceased’s personal wishes. For example, what if someone wanted to leave a portion of their wealth to a close friend, a charity, or a stepchild? Intestacy doesn’t allow for such flexibility, which is where the concept of a last will comes into play.
The Rise of the Last Will
In recent years, more people have started to embrace the idea of creating a last will in Indonesia. A last will is a legal document that allows you to decide how your assets will be distributed after your death. This shift reflects a growing awareness of personal autonomy and the desire to have more control over one’s legacy.
The legal basis for making a last will in Indonesia is found in the Civil Code, specifically Articles 875 to 940. These articles outline the requirements for a valid will, including that it must be written, signed, and witnessed. For Muslims, the Islamic Compilation Law also permits the use of a will, but it limits the portion of the estate that can be distributed through a will to one-third of the total assets. This ensures that the mandatory shares for heirs under Faraid are preserved.
The 1974 Marriage Law also plays a role in inheritance matters, particularly when it comes to joint property (harta bersama). According to Article 35 of the Marriage Law, any assets acquired during marriage are considered joint property, unless otherwise specified. This means that when one spouse passes away, half of the joint property automatically belongs to the surviving spouse, while the other half is subject to inheritance rules. A will can clarify how the deceased’s share of the joint property should be distributed, reducing potential conflicts among heirs.
Why the Shift?
So, why are more people choosing to make a last will in Indonesia? There are several reasons, and I’m sure you’ll find some of them relatable.
First, there’s the issue of fairness. Intestacy rules, especially under Islamic law, often favor male heirs over female heirs. While this is rooted in religious principles, it doesn’t always sit well with modern families who value gender equality. By creating a will, you can ensure that your daughters, sisters, or other female relatives receive a fair share of your estate.
Second, a will allows you to provide for people who wouldn’t normally inherit under intestacy rules. For example, stepchildren, adopted children, or even lifelong friends can be included in your will. This flexibility is especially important in today’s diverse and blended families.
Third, a will can help prevent disputes among heirs. Let’s face it, inheritance can be a sensitive topic, and disagreements over who gets what can tear families apart. By clearly stating your wishes in a will, you can minimize the risk of conflict and ensure a smoother distribution process.
Finally, there’s the growing influence of globalization and education. As more Indonesians are exposed to international practices and legal systems, they’re becoming more aware of the benefits of estate planning. Writing a will is seen as a responsible and forward-thinking step, rather than something to be avoided or feared.
Challenges and Considerations
Of course, making a last will isn’t without its challenges. One major hurdle is the lack of awareness and understanding about the process. Many people still believe that writing a will is complicated, expensive, or unnecessary. Others worry that it might offend their family or go against cultural norms.
There’s also the issue of legal validity. For a will to be enforceable, it must meet certain requirements. For example, it must be signed in the presence of a notary or witnesses, depending on the type of will. If these requirements aren’t met, the will could be challenged in court, leading to delays and complications.
Another consideration is the interplay between a will and existing inheritance laws. As I mentioned earlier, Muslims can only distribute up to one-third of their estate through a will. This means that even if you want to leave everything to a specific person or cause, you’ll need to work within these legal limits.
The Way Forward
Despite these challenges, the trend toward using a last will is likely to continue. As more people recognize the benefits of estate planning, they’ll be more willing to take the necessary steps to protect their assets and provide for their loved ones.
If you’re thinking about making a will, here are a few tips to get started:
- Understand the laws that apply to you. Whether you’re governed by the Civil Code, Islamic law, or adat law, it’s important to know your rights and limitations.
- Consult a legal expert. A lawyer like Wijaya & Co can help you draft a will that meets all legal requirements and reflects your wishes.
- Communicate with your family. While it might be an uncomfortable conversation, discussing your plans with your loved ones can help prevent misunderstandings and conflicts later on.
- Review and update your will regularly. Life is full of changes, and your will should reflect your current circumstances and priorities.
Conclusion
The shift from intestacy to the use of a last will in Indonesia marks a significant change in how we think about inheritance. It’s a move toward greater personal autonomy, fairness, and flexibility, driven by changing values and legal frameworks. By taking the time to plan your estate, you can ensure that your legacy is distributed according to your wishes, while also providing peace of mind for your loved ones.
So, what do you think? Is it time for you to start thinking about your own will? After all, it’s not just about dividing assets. It’s about leaving a lasting impact on the people and causes you care about most. Let’s embrace this shift together and take control of our futures.
My name is Asep Wijaya, writing for Wijaya & Co. We orchestrate to assist you navigate. Thank you for reading my posts.