Civil Code Wants to Get the Word Out: No Last Will in Indonesia is to Blame for Intestacy

Let’s talk about something we often overlook: last wills. You and I might not think about it much, but it’s a crucial topic. 

In Indonesia, the lack of a last will can lead to intestacy, which means your assets are distributed according to the law, not your personal wishes. This can create unnecessary disputes among family members, and nobody wants that. 

So, let’s dive into why having a last will is important and what the law says about it.

What Happens Without a Last Will?

When someone passes away without leaving a last will, their estate is divided according to the rules of intestacy. In Indonesia, these rules are primarily governed by the Civil Code, the 1974 Marriage Law, and the Islamic Compilation Law (for Muslims). These laws aim to ensure fairness, but they don’t always align with what you might have wanted.

For example, under the Civil Code, the estate is divided among the surviving spouse, children, and other relatives in a specific order. If you’re married, your spouse and children will share your assets equally. But what if you wanted to leave something special to a close friend or a charity? Without a last will, that’s not possible. The law doesn’t account for personal relationships outside the family.

The Civil Code and Last Wills

The Civil Code provides a legal framework for creating a last will in Indonesia. Articles 875 to 940 of the Civil Code outline the rules for drafting, executing, and revoking a last will. Here’s what you need to know:

1. Who Can Make a Last Will? According to Article 895 of the Civil Code, anyone who is at least 18 years old and of sound mind can make a last will. This means you have the legal right to decide how your assets will be distributed after your death.
2. Forms of Last Wills. The Civil Code recognizes several forms of last wills, including testamentary wills, holographic wills (handwritten), and oral wills in exceptional circumstances. However, testamentary wills are the most common and legally secure option. They are made in the presence of two witnesses, ensuring their validity.
3. Freedom of Disposition. Article 913 of the Civil Code states that you have the freedom to dispose of your assets as you see fit, but there are limitations. For instance, you cannot completely disinherit your legitimate heirs (such as your spouse and children). They are entitled to a reserved portion of your estate, known as the "legitime portie."

The Role of the 1974 Marriage Law

The 1974 Marriage Law also plays a significant role in inheritance matters. It emphasizes the concept of joint property (harta bersama) in marriage. This means that any assets acquired during the marriage are considered joint property, regardless of whose name is on the title.

If you pass away without a last will, the division of joint property can become complicated. The surviving spouse is entitled to half of the joint property, while the other half is divided among the heirs. But what if you wanted to leave your share of the joint property to your children or a specific heir? Without a last will, the law takes over, and your wishes might not be honored.

Islamic Compilation Law and Inheritance

For Muslims in Indonesia, the Islamic Compilation Law (Kompilasi Hukum Islam) provides additional guidelines for inheritance. This law is based on Islamic principles and applies to Muslims who choose to settle inheritance matters through religious courts.

Under the Islamic Compilation Law, inheritance is divided according to faraid, a system of fixed shares prescribed by Islamic law. For example, a son typically receives twice the share of a daughter, and the surviving spouse is entitled to a specific portion. While this system is fair within the context of Islamic principles, it doesn’t allow for much flexibility.

However, the Islamic Compilation Law does permit the use of a last will, known as a wasiat. Article 195 of the law states that a Muslim can allocate up to one-third of their estate through a wasiat, provided it doesn’t infringe on the rights of the legitimate heirs. This gives you some room to express your personal wishes while respecting Islamic principles.

Why You Should Have a Last Will

Now that we’ve covered the legal framework, let’s talk about why you and I should care about having a last will. Here are a few reasons:

1. Avoid Family Disputes. Without a last will, your family members might argue over who gets what. A clear and legally binding last will can prevent these disputes and ensure that your wishes are respected.
2. Protect Your Loved Ones. A last will allows you to provide for your loved ones in a way that reflects your personal preferences. For example, you can leave a larger share to a family member who needs financial support or set up a trust for your children’s education.
3. Support Causes You Care About. If you’re passionate about a particular cause or charity, a last will gives you the opportunity to leave a legacy. You can allocate a portion of your estate to support the things you care about most.
4. Ensure a Smooth Process. Having a last will simplifies the legal process for your heirs. It provides clear instructions on how your estate should be divided, making it easier for them to navigate the complexities of inheritance law.

How to Create a Last Will
Creating a last will might seem daunting, but it’s actually quite straightforward. Here’s a step-by-step guide:

1. Consult a Lawyer. A legal professional like Wijaya & Co., can help you draft a last will that complies with the Civil Code and other applicable laws. They can also advise you on how to structure your will to minimize potential disputes.
2. List Your Assets. Make a comprehensive list of your assets, including property, bank accounts, investments, and personal belongings. This will help you decide how to distribute them.\
3. Choose Your Beneficiaries. Decide who will inherit your assets. This could include family members, friends, or charitable organizations.
4. Appoint an Executor. An executor is responsible for carrying out the instructions in your last will. Choose someone you trust to handle this important role.
5. Sign and Witness the Will. To ensure your last will is legally valid, sign it in the presence of two witnesses. This step is crucial for avoiding legal challenges.
   Keep It Safe. Store your last will in a safe place and let your executor know where to find it. You might also consider registering it with a probate office for added security.

Final Thoughts

You and I both know that life is unpredictable. While it’s not always easy to think about what happens after we’re gone, having a last will is an act of love and responsibility. It ensures that your wishes are respected, your loved ones are cared for, and your legacy lives on.

The Civil Code, the 1974 Marriage Law, and the Islamic Compilation Law provide the legal tools you need to create a last will. It’s up to you to use them. So, let’s take this step together and make sure our families are protected, your wishes are honored, and your futures are secure.

My name is Asep Wijaya, writing for Wijaya & Co. We orchestrate to assist you navigate. Thank you for reading my posts.