The Useful Legal Instrument From Civil Code in Indonesia That You Can Play Like a Flute: Last Will

Life is unpredictable. You and I both know that. One moment, we’re here, making plans for the future, and the next, life throws us a curveball. That’s why it’s so important to think ahead, especially when it comes to our loved ones and the legacy we leave behind. One of the most powerful legal tools we have in Indonesia to ensure our wishes are respected after we’re gone is the last will, or testament. It’s a simple yet effective instrument that can give you peace of mind, knowing that your assets and belongings will be distributed according to your wishes.

Now, let’s dive into the legal framework that governs last wills in Indonesia. Don’t worry. I’ll keep it simple and friendly so you can follow along easily. Together, we’ll explore how the Civil Code, the 1974 Marriage Law, and the Islamic Compilation Law provide the foundation for this important legal tool.

What Is a Last Will?

A last will is a legal document where you, as the testator, express your wishes about how your assets should be distributed after your death. It’s like leaving a set of instructions for your loved ones. The beauty of a last will is that it allows you to have control over your estate, even when you’re no longer around. Without one, your assets will be distributed according to the default rules of inheritance, which may not align with your personal wishes.

In Indonesia, the rules for creating and executing a last will are primarily governed by the Civil Code (Kitab Undang-Undang Hukum Perdata or KUHPerdata). Articles 875 to 940 of the Civil Code lay out the requirements, limitations, and procedures for making a valid will. Whether you’re a citizen or a foreigner residing in Indonesia, these provisions apply to you.

Legal Grounds for a Last Will in the Civil Code

The Civil Code is the backbone of inheritance law in Indonesia. It provides clear guidelines on how a last will should be made and what it can include. Here are some key points you should know:

1. Freedom to Make a Will. Article 875 of the Civil Code states that a will is a unilateral declaration of intent, meaning it’s entirely up to you to decide how your assets will be distributed. However, this freedom comes with certain limitations, especially when it comes to protecting the rights of your heirs.
2. Formal Requirements. A will must meet specific formalities to be valid. According to Articles 931 to 940, a will can be made in three main forms: a. Holographic Will: Written entirely by your hand and signed by you; b. Testamentary Will: Drafted and recorded in the presence of witnesses, c. Secret Will: Sealed and handed to a notary for safekeeping.
3. Each form has its own requirements, but the testamentary  will is the most commonly used because it’s less likely to be contested in court.
4. Reserved Portion for Heirs. While you have the freedom to distribute your assets, the Civil Code protects the rights of your legitimate heirs (ahli waris sah). Articles 913 to 920 specify that certain heirs, such as your spouse, children, and parents, are entitled to a reserved portion of your estate. This means you can’t disinherit them entirely unless there are legal grounds to do so.

The Role of the 1974 Marriage Law

The 1974 Marriage Law (Undang-Undang Nomor 1 Tahun 1974 tentang Perkawinan) also plays a significant role in inheritance matters. This law emphasizes the concept of joint marital property (harta bersama). If you’re married, any assets acquired during the marriage are considered joint property, unless otherwise agreed in a prenuptial agreement.

When drafting a last will, you need to consider how joint property will be divided. Article 35 of the Marriage Law states that upon the death of one spouse, half of the joint property automatically belongs to the surviving spouse. The remaining half can be distributed according to the deceased’s will or the default rules of inheritance.

Islamic Compilation Law and Its Influence

For Muslims in Indonesia, the Islamic Compilation Law (Kompilasi Hukum Islam or KHI) provides additional guidelines on inheritance and last wills. This law is based on Islamic principles and is applied in religious courts (Pengadilan Agama). Here are some key points to keep in mind:

1. Limitations on Bequests. Article 195 of the KHI states that a Muslim can only bequeath up to one-third of their estate through a will. The remaining two-thirds must be distributed among the heirs according to Islamic inheritance law (faraid). This ensures that the rights of heirs are protected.
2. Heirs’ Consent. If you wish to leave more than one-third of your estate to a non-heir, you’ll need the consent of your legitimate heirs. This provision reflects the Islamic principle of fairness and balance in inheritance.
3. Recognition of Heirs. The KHI also recognizes certain heirs who may not be included under the Civil Code, such as adopted children or stepchildren. While they may not have a direct right to inherit, you can include them in your will to ensure they receive a portion of your estate.

Why You Should Have a Last Will

You might be wondering, “Do I really need a last will?” The answer is a resounding yes! Here’s why:

1. Clarity and Certainty. A last will eliminates confusion and disputes among your heirs. It provides clear instructions on how your assets should be divided, reducing the likelihood of family conflicts.
2. Protecting Loved Ones. With a will, you can ensure that your loved ones, including those who may not have a legal right to inherit, are taken care of. For example, you can leave a portion of your estate to a close friend, a charitable organization, or even a beloved pet.
3. Flexibility and Control. Life is full of changes, and so is your estate. A will gives you the flexibility to update your wishes as your circumstances evolve. Whether it’s a new marriage, the birth of a child, or the acquisition of new assets, you can always revise your will to reflect your current situation.
4. Avoiding Legal Complications. Without a will, your estate will be distributed according to the default rules of inheritance, which may not align with your wishes. This can lead to legal disputes and delays in settling your estate.

How to Get Started

Creating a last will might seem daunting, but it doesn’t have to be. Here’s a simple step-by-step guide to help you get started:

1. Take Inventory of Your Assets. Make a list of everything you own, including property, bank accounts, investments, and personal belongings.
2. Decide on Your Beneficiaries. Think about who you want to inherit your assets. This could include family members, friends, or charitable organizations.
3. Choose an Executor. An executor is someone you trust to carry out your wishes. This could be a family member, a close friend, or even a professional like a lawyer or notary.
4. Consult a Legal Expert. To ensure your will is legally valid and aligns with your wishes, it’s a good idea to consult a lawyer like Wijaya & Co. who specializes in inheritance law.
5. Keep It Safe. Once your will is finalized, store it in a safe place and let your executor know where to find it.

Final Thoughts

You and I both understand the importance of planning for the future. A last will is more than just a legal document. It’s a way to protect your loved ones, honor your wishes, and leave a lasting legacy. By understanding the legal framework provided by the Civil Code, the 1974 Marriage Law, and the Islamic Compilation Law, you can create a will that reflects your values and priorities.

So, why not take the first step today? After all, life is unpredictable, but with a last will, you can ensure that your legacy is secure and your loved ones are cared for.

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