How Do You Spot an Intestacy and Why Do You Need an Affidavit of Foreign Law? This is according to the Civil Code in Indonesia

Have you ever wondered what happens when someone passes away without leaving a will? 

If you and I were to sit down over coffee and chat about inheritance in Indonesia, we’d quickly realize that the topic is more than just about who gets what. It’s about understanding the law, spotting situations called “intestacy,” and sometimes, dealing with foreign elements that require special documents like an affidavit of foreign law. 

Let’s explore these concepts together, using the Indonesian Civil Code as our guide.

What is Intestacy?

First, let’s break down the term “intestacy.” 

In simple terms, intestacy happens when a person dies without leaving a valid will. In legal language, this person is called “intestate.” The Indonesian Civil Code (Kitab Undang-Undang Hukum Perdata, or KUHPerdata) provides clear rules on what happens in such cases.

Legal Grounds: Civil Code on Intestacy

The main legal basis for intestacy in Indonesia is found in Articles 830 to 1130. 

Article 830 states: “Inheritance only occurs because of death.”

Article 832 further explains:“Those entitled to be heirs are blood relatives, whether legitimate or illegitimate, and the surviving spouse.”)

So, if someone dies without a will, the law steps in and determines who the heirs are and how the estate is divided.

How Do You Spot an Intestacy?

Now, you might ask, “How do I know if someone died intestate?” Here are some practical signs you and I can look for:

1. No Will Found

The most obvious sign is the absence of a will. If, after a diligent search among the deceased’s personal papers, safe deposit boxes, and with their lawyer, no will is found, it’s likely a case of intestacy.

2. Invalid Will

Sometimes, a will exists but is declared invalid. This could be because it wasn’t signed properly, lacked witnesses, or was made under duress. According to Article 875 of the Civil Code, a will must meet certain formalities to be valid.

3. Partial Intestacy

It’s also possible for someone to die “partially intestate.” This happens when a will covers only part of the estate, and the rest is not mentioned. The uncovered portion will be distributed according to intestacy rules.

4. Heirs Identified by Law

When intestacy is established, the Civil Code provides a hierarchy of heirs. Articles 832-852 lay out the order:

1. Descendants (children, grandchildren)
2. Ascendants (parents, grandparents)
3. Siblings and their descendants
4. Other blood relatives up to the sixth degree
5. The surviving spouse

If you see the estate being distributed strictly according to this order, it’s a strong sign that intestacy rules are being applied.

Why Does Intestacy Matter?

You might wonder why it’s important to spot intestacy. 

The answer is simple: intestacy affects who inherits, how much they inherit, and the process for settling the estate. If you’re an heir, knowing whether intestacy applies helps you understand your rights and obligations.

The Role of Foreign Law in Inheritance

Indonesia is a diverse country, and many families have international ties. What happens if the deceased was a foreign national, or owned property abroad, or if the heirs live in different countries? This is where things get interesting, and complicated.

The Principle of Lex Rei Sitae

According to the Civil Code and international private law principles, the law that applies to inheritance can depend on the location of the property (lex rei sitae) or the nationality/domicile of the deceased. For example, Article 16 of Algemene Bepalingen van Wetgeving voor Indonesië (AB) states: “The law of the nationality of the deceased governs inheritance.”

But, for immovable property (like land or houses), the law of the country where the property is located applies.

Why Do You Need an Affidavit of Foreign Law?

Let’s say you’re dealing with an estate that involves foreign elements. Maybe the deceased was a Dutch citizen, or owned a house in Singapore. Courts where the property is located are not expected to know the details of foreign law. This is where an affidavit of foreign law comes in.

What is an Affidavit of Foreign Law?

An affidavit of foreign law is a sworn statement, usually by a legal expert or lawyer like Wijaya & Co from the relevant foreign country, explaining what the foreign law says about a particular issue, like inheritance. It helps foreign court authorities understand how to apply Indonesian inheritance law in the context of the estate.

When is it Needed?

You need an affidavit of foreign law when:

1. The deceased was a foreign national, and their national law governs the inheritance.
2. The estate includes property located in another country.
3. There are heirs who are subject to foreign law.

For example, if a Dutch citizen dies in Indonesia, and their estate is to be distributed according to Indonesian law, the court will require an affidavit from an Indonesian legal expert like Wijaya & Co explaining the relevant inheritance rules.

Legal Basis

While the Civil Code doesn’t explicitly mention affidavits of foreign law, the need arises from the general principle that courts cannot take judicial notice of foreign law, they need it to be proven as a fact. This is supported by Article 1865 of the Civil Code: “Whoever alleges a fact before the judge must prove that fact.”

So, if you claim that Indonesian law applies, you must prove what Indonesian law says, usually through an affidavit.

How to Obtain an Affidavit of Foreign Law

If you ever need one, here’s what you should do:

1. Contact a Legal Expert. Find a lawyer like Wijaya & Co in the relevant country who can provide the services of an affidavit of foreign law..
2. Request a Written Affidavit. The legal expert like Wijaya & Co prepares a sworn statement, often notarized, explaining the relevant law.
3. Translate and Legalize.  If the affidavit is in a foreign language, have it officially translated and legalized (apostilled) for use in that foreign country.
4. Submit to Authorities. Present the affidavit to the foreign court handling the estate.

Conclusion

Spotting an intestacy is all about knowing whether a valid will exists and understanding the legal order of heirs under the Indonesian Civil Code. 

When foreign elements are involved, an affidavit of foreign law becomes essential to clarify which rules apply. 

By understanding these concepts, you can navigate inheritance matters with greater confidence and ensure that the wishes of the deceased, and the rights of the heirs, are respected according to the law.

My name is Asep Wijaya. Thank you for reading my posts!