When someone we love dies without leaving a will, the family is left with more than grief. There may also be confusion about property, family responsibilities, debts, and the deceased person’s final wishes. We often assume that our family members already know what we want. However, memories are not always reliable, and different relatives may remember different promises. That is why I believe the last will we need the most is often the one we never got.
A will is not simply a personal letter. Under Indonesian law, it is a legal instrument that can determine how a person’s property will be managed after death. The Civil Code, the 1974 Marriage Law, and the Compilation of Islamic Law all provide important rules about inheritance, marital property, and wills.
The Meaning of a Will Under the Civil Code
The Indonesian Civil Code, or Kitab Undang-Undang Hukum Perdata (KUHPerdata), recognizes the importance of a person’s final wishes. Article 875 defines a will, or testament, as an instrument containing a person’s statement about what they want to happen after their death. The will may also be revoked during the person’s lifetime.
This rule shows that a will is personal and changeable. You may create one when your family situation is different, and you may later amend or revoke it. For example, you may want to change the beneficiaries after marriage, divorce, the birth of a child, or the death of someone named in the original will.
Article 874 of the Civil Code states that the estate of a deceased person belongs to the legal heirs unless the deceased has made a valid testamentary arrangement. In practical terms, if you do not leave a valid will, the law decides who receives your property. Although this provides a legal framework, it may not always reflect your personal intentions.
Perhaps you wanted to leave your house to the child who cared for you. Perhaps you wanted to support a close friend, an adopted child, or a charitable organization. Without a valid will, those wishes may not be legally enforceable.
The Limits of Testamentary Freedom
Although the Civil Code allows people to make wills, that freedom is not absolute. Article 913 recognizes the concept of legitieme portie, or the reserved portion of an inheritance. This is the part of the estate legally protected for certain heirs in the direct line, particularly children and, in some circumstances, parents.
This limitation is important because a person cannot use a will to unfairly eliminate the protected rights of certain family members. You may express your wishes, but your wishes must still respect the rights granted by law. I see this as a reasonable balance between personal freedom and family protection.
The Civil Code also regulates the form of a will. Article 931 recognizes several forms, including an olographic will, a public deed, and a secret deed. An olographic will must be written and signed by the testator under Article 932. Article 935 also recognizes a limited handwritten statement for certain specific gifts, such as clothing, jewelry, or particular household items.
These formal requirements matter. A handwritten note hidden in a drawer may express love, but it may not satisfy all legal requirements for transferring valuable property. A properly prepared notarial deed is generally safer because it provides clearer evidence of the person’s intention and helps prevent later disputes.
Marriage and Joint Marital Property
Inheritance cannot be separated from the law of marriage. Law No. 1 of 1974 concerning Marriage, as amended by Law No. 16 of 2019, regulates the property relationship between spouses.
Article 35 provides that property acquired during the marriage generally becomes joint marital property. Meanwhile, property brought into the marriage, as well as property received individually as a gift or inheritance, generally remains under the control of the relevant spouse unless the parties have agreed otherwise.
This distinction is essential when preparing a will. A person cannot simply treat all family property as personal property. Before inheritance is divided, the joint marital property must first be identified and separated. The surviving spouse may have an independent legal share that does not form part of the deceased person’s estate.
Article 36 of the Marriage Law also provides that actions involving joint marital property require the consent of both spouses. Therefore, if a family home was purchased during the marriage and is jointly owned, one spouse cannot validly give away the entire property through a will. The will can only deal with the portion legally belonging to the testator.
This is one reason why a person should prepare a will with careful advice. A will that ignores marital property may create confusion, disappointment, and even litigation among the surviving family members.
Wills Under the Compilation of Islamic Law
For Muslim families, the Compilation of Islamic Law, or Kompilasi Hukum Islam (KHI), provides specific rules. KHI Article 171 defines a will as the giving of an object by a deceased person to another person or institution, with the transfer taking effect after death.
The value of the estate must be calculated carefully. The estate is not necessarily everything the deceased appeared to own. Certain expenses, including funeral costs, debts, and other obligations, must generally be addressed before the inheritance is distributed.
KHI Article 195 provides that a will may be made orally before two witnesses, in writing before two witnesses. However, Islamic law places an important limit on the amount that may be given through a will. Generally, a will may not exceed one-third of the inheritance unless all heirs agree.
A will made for the benefit of an heir also requires the approval of all other heirs. Article 201 confirms that if a will exceeds one-third and some heirs do not approve, the will is generally implemented only up to one-third. These rules protect the balance between the wishes of the deceased and the rights of the heirs.
KHI Article 209 also recognizes wasiat wajibah, or a mandatory bequest, particularly for adopted children and adoptive parents in situations regulated by the provision. This rule recognizes that family bonds can exist through care, love, and responsibility even when there is no direct blood relationship.
Why the Missing Will Causes Conflict
The absence of a will creates more than a property problem. It can expose old family tensions. One sibling may believe the deceased promised a house to him. Another may remember being promised the family business. A spouse may believe that years of care and sacrifice should be recognized. An adopted child may feel abandoned when the law does not automatically treat them like a biological heir.
In these situations, family members are not arguing only about money. They are also arguing about love, recognition, loyalty, and fairness. A clear will cannot prevent every disagreement, but it can reduce uncertainty and provide reliable evidence of the deceased person’s wishes.
Conclusion
The last will we needed most is often the one we never got because we believed there would always be more time. The Civil Code, the Marriage Law, and the Compilation of Islamic Law all show that inheritance should be handled with clarity and responsibility.
If you care about the people you leave behind, creating a valid will is not an invitation to death. It is an act of protection. A will can identify your property, separate marital assets from personal assets, respect the rights of legal heirs, and communicate your wishes clearly.
You cannot control every event after death, but we can reduce unnecessary confusion. Sometimes the kindest final gift is not money or property. It is a clear legal instruction that prevents the people you love from fighting over what you meant.
My name is Wijaya, writing for Wijaya & Co. We orchestrate to assist you navigate. Thank you for reading my posts.