Last Will in Indonesia: An Estates Planning Legal Instrument, Carves a Path of Its Own

You and I both know that planning for the future can be daunting, especially when it comes to matters of inheritance. But in Indonesia, the concept of a last will, or testament, is a vital tool for ensuring that your wishes are respected after you’re gone. While it may seem like a straightforward document, the legal framework surrounding last wills in Indonesia is unique, shaped by a blend of civil law, religious principles, and customary traditions. 

Let’s explore how this legal instrument carves its own path in the Indonesian legal landscape.

The Legal Foundation of Last Wills in Indonesia

To understand how a last will works in Indonesia, we need to start with the legal framework. The Indonesian Civil Code serves as the primary legal foundation for wills and inheritance. Articles 875 to 940 of the Civil Code lay out the rules for creating, modifying, and executing a last will.

Under the Civil Code, a last will is defined as a unilateral declaration of intent that takes effect upon the testator’s death. In simpler terms, it’s a document where you can specify how your assets should be distributed after you pass away. The law recognizes several forms of wills, including handwritten wills (olograph testament), testamentary wills, and secret wills. Each form has its own requirements, but the testamentary will is the most commonly used because it involves  legal expert who ensures the document complies with legal standards.

However, the Civil Code is not the only legal ground governing inheritance in Indonesia. The 1974 Marriage Law (Undang-Undang Nomor 1 Tahun 1974 tentang Perkawinan) and the Islamic Compilation Law (Kompilasi Hukum Islamor KHI) also play significant roles, especially for individuals who are married or adhere to Islamic principles. These laws create a layered and sometimes complex system that reflects Indonesia’s diverse cultural and religious landscape.

The Role of the 1974 Marriage Law

The 1974 Marriage Law is a cornerstone of family law in Indonesia, and it has a direct impact on inheritance matters. One of the key principles of this law is the concept of joint property (harta bersama). When you and your spouse marry, any assets acquired during the marriage are considered joint property, unless otherwise agreed upon in a prenuptial agreement.

This concept is crucial when drafting a last will because you cannot freely dispose of joint property without your spouse’s consent. For example, if you want to leave a portion of your assets to your children or a charity, you must first determine whether those assets are part of the joint property. If they are, your spouse has a legal claim to half of them, and only the remaining half can be distributed according to your will.

The Marriage Law also emphasizes the importance of fairness and the protection of family members. For instance, children from the marriage are entitled to inherit from their parents, and this right cannot be entirely overridden by a will. This ensures that family members are not left destitute due to the testator’s decisions.

The Influence of Islamic Law

For Muslims in Indonesia, the Islamic Compilation Law adds another layer of complexity to estate planning. This law is based on Islamic principles and applies to inheritance matters for Muslims. One of the key features of Islamic inheritance law is the concept of faraid, which prescribes fixed shares of inheritance for specific heirs, such as children, spouses, and parents.

Under the faraid system, a Muslim testator cannot freely distribute their entire estate through a will. Instead, they are limited to bequeathing up to one-third of their estate to non-heirs or for charitable purposes. The remaining two-thirds must be distributed according to the fixed shares outlined in Islamic law. For example, a son typically receives twice the share of a daughter, reflecting the principle that men have greater financial responsibilities in Islamic tradition.

This restriction can sometimes create challenges for Muslims who wish to allocate their assets differently. However, the Islamic Compilation Law provides some flexibility through the concept of hibah (gifts). By giving assets as gifts during their lifetime, Muslims can bypass the restrictions of faraid and ensure that their wishes are honored.

Customary Law and Local Traditions

In addition to the Civil Code, Marriage Law, and Islamic Compilation Law, customary law (adat) also plays a significant role in inheritance matters in Indonesia. With over 1,300 ethnic groups, Indonesia is home to a rich tapestry of local traditions, many of which have their own rules for inheritance.

For example, in some matrilineal societies, such as the Minangkabau in West Sumatra, inheritance is passed down through the female line. This is in stark contrast to the patrilineal traditions found in other parts of Indonesia, where inheritance is passed down through the male line. These customary practices often coexist with formal legal frameworks, creating a unique blend of tradition and modernity.

If you come from a community with strong customary traditions, it’s important to consider how these practices might affect your estate planning. In some cases, customary law may take precedence over formal legal rules, especially if the community strongly adheres to its traditions.

Drafting a Last Will: Practical Considerations

Now that we’ve covered the legal foundations, let’s talk about the practical aspects of drafting a last will in Indonesia. Whether you’re guided by the Civil Code, Islamic law, or customary traditions, there are a few key steps you should take to ensure your will is valid and enforceable.

1. Choose the Right Form of Will. As mentioned earlier, testamentary wills are the most common and reliable option in Indonesia. By working with a legal expert like Wijaya & Co., you can ensure that your will complies with legal requirements and is less likely to be challenged in court.
2. Clearly Identify Your Beneficiaries. Be specific about who will inherit your assets. Include their full names, relationships to you, and any other identifying details to avoid confusion.
3. List Your Assets. Make a comprehensive list of your assets, including real estate, bank accounts, investments, and personal belongings. This will make it easier for your executor to distribute your estate according to your wishes.
4. Consider Legal Restrictions. If you’re married, remember to account for joint property. If you’re Muslim, ensure that your bequests comply with the one-third rule under Islamic law.
5. Appoint an Executor. Choose someone you trust to carry out the instructions in your will. This person should be reliable, organized, and familiar with your wishes.
6. Update Your Will Regularly. Life is unpredictable, and your circumstances may change over time. Review and update your will periodically to ensure it reflects your current wishes.

The Importance of Estate Planning

You and I both know that life is full of uncertainties. By taking the time to draft a last will, you can provide clarity and peace of mind for your loved ones. A well-crafted will not only ensures that your assets are distributed according to your wishes but also helps prevent disputes among family members.

In Indonesia, the process of estate planning is shaped by a unique blend of legal, religious, and cultural factors. Whether you’re guided by the Civil Code, the 1974 Marriage Law, the Islamic Compilation Law, or customary traditions, it’s essential to understand the rules that apply to your situation. By doing so, you can navigate the complexities of inheritance law and create a lasting legacy for your family.

So, let’s not wait until it’s too late. Start planning your estate today, and take control of your future. After all, a little preparation now can make a world of difference for the people you care about most.

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