Intestacy and Your Wishes Drive Estates Distribution in Indonesia: Should You Consider a Last Will?

Have you ever thought about what would happen to your assets when you're no longer around? It’s not the most cheerful topic, but it’s an important one. 

In Indonesia, the way your estate is distributed depends heavily on whether you’ve made your wishes clear through a last will or if the law steps in to decide for you. 

Let’s dive into this topic together and explore why having a last will might be worth considering.

What Happens Without a Last Will?

If you pass away without a last will, your estate will be distributed according to the rules of intestacy. In Indonesia, these rules are rooted in the Civil Code, the 1974 Marriage Law, and, for Muslims, the Islamic Compilation Law (Kompilasi Hukum Islam or KHI). These laws determine who inherits your property and in what proportions.

Under the Civil Code, the closest relatives, such as your spouse, children, and parents, are prioritized. For example, Article 832 of the Civil Code states that inheritance is passed to blood relatives and the surviving spouse. If you’re married, your spouse and children will share your estate. But what if you’re single or have no children? In that case, your parents, siblings, or even more distant relatives might inherit.

For Muslims, the Islamic inheritance system applies, as outlined in the KHI. This system is based on faraid, which allocates specific shares of the estate to heirs like your spouse, children, and parents. The proportions are fixed, meaning you don’t have much flexibility to decide who gets what.

While these laws provide a framework, they don’t always align with what you might want. For instance, you might wish to leave something to a close friend, a charity, or a stepchild, none of whom are typically entitled to inherit under intestacy rules. This is where a last will comes in.

The Role of a Last Will

A last will is a legal document that allows you to express your wishes about how your estate should be distributed. In Indonesia, the Civil Code provides the legal foundation for creating a last will. Articles 875 to 938 of the Civil Code outline the rules for drafting and executing a will, ensuring it’s legally valid.

By making a last will, you can:

1. Choose Your Beneficiaries.  You have the freedom to decide who inherits your assets. This could include people or organizations not covered by intestacy laws.
2. Specify Asset Distribution. You can allocate specific items or amounts to particular individuals, ensuring your wishes are respected.
3. Appoint an Executor.  You can name someone you trust to manage your estate and ensure your instructions are carried out.

However, there are some limitations. For Muslims, the KHI allows you to distribute only up to one-third of your estate through a will. The remaining two-thirds must follow the faraid system. For non-Muslims, the Civil Code gives more flexibility, but you still need to consider the rights of your legal heirs, who are entitled to a reserved portion of your estate.

Why Should You Consider a Last Will?

Now that we’ve covered the basics, let’s talk about why you might want to create a last will. Here are a few reasons:

1. Avoid Family Disputes. Without a clear plan, disagreements among family members can arise. A last will provides clarity and reduces the likelihood of conflicts over who gets what.

2. Protect Vulnerable Loved Ones. If you have dependents, such as young children or elderly parents, a last will allows you to ensure they’re taken care of. You can set aside funds or appoint guardians for minors.

3. Support Non-Heirs. Do you want to leave something to a friend, a stepchild, or a cause you care about? A last will lets you include these individuals or organizations in your estate plan.

4. Maintain Control. A last will gives you control over your legacy. Instead of relying on default laws, you can make decisions that reflect your values and priorities.

5. Simplify the Process. By clearly outlining your wishes, you make it easier for your loved ones to manage your estate. This can save them time, stress, and legal fees.

How to Create a Last Will in Indonesia

Creating a last will in Indonesia involves a few key steps. Let’s go through them together:

1. Understand the Legal Requirements. The Civil Code and the KHI set out specific rules for making a will. For example, a will must be written and signed in the presence of or witnesses. It’s important to follow these rules to ensure your will is legally valid.

2. Identify Your Assets and Beneficiaries. Make a list of your assets, including property, bank accounts, investments, and personal belongings. Then, decide who you want to inherit each item.

3. Consult a Legal Expert. While it’s possible to draft a will on your own, consulting a lawyer like Wijaya & Co. is highly recommended. They can help you navigate the legal requirements and ensure your will is clear and enforceable.

4. Register Your Will. In Indonesia, you can register your will with a probate office. This ensures your will is recognized and can be easily accessed when needed.

5. 5Review and Update Your Will. Life changes, and so might your wishes. It’s a good idea to review your will periodically and update it if necessary, especially after major life events like marriage, divorce, or the birth of a child.

What Happens If You Don’t Have a Last Will?

If you choose not to create a last will, your estate will be distributed according to intestacy laws. While these laws provide a safety net, they might not reflect your personal preferences. For example:

1. If you’re married with children, your spouse and children will share your estate. But what if you want to leave a larger share to your spouse or set aside funds for your children’s education?
2. If you’re single, your parents or siblings might inherit your estate. But what if you’d prefer to leave something to a close friend or a charity?

Without a last will, these decisions are out of your hands.

Balancing Legal and Religious Considerations

For Muslims, it’s important to balance your personal wishes with the principles of Islamic inheritance. The KHI allows you to make a will for up to one-third of your estate, but the rest must follow faraid. This means you can still express your wishes while respecting religious guidelines.

For non-Muslims, the Civil Code provides more flexibility, but you should still consider the rights of your legal heirs. For example, your spouse and children are entitled to a reserved portion of your estate, even if you’d prefer to leave everything to someone else.

Final Thoughts

You and I both know that life is unpredictable. While it’s not easy to think about what happens after we’re gone, planning ahead can make a world of difference for the people we care about. A last will gives you the power to decide how your estate is distributed, ensuring your wishes are respected and your loved ones are taken care of.

Whether you’re looking to avoid family disputes, support non-heirs, or simply maintain control over your legacy, a last will is a valuable tool. By understanding the legal framework in Indonesia and taking the time to plan, you can leave behind not just assets, but also peace of mind.

So, should you consider a last will? The answer is yes. It’s a small step that can have a big impact on the people you leave behind. Why not start today?

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