This Is How Your Last Will in Indonesia Works

When it comes to planning for the future, one of the most important things you can do is prepare a last will. 

In Indonesia, the process of creating a last will is guided by a mix of legal frameworks, including the Civil Code, the 1974 Marriage Law, and the Islamic Compilation Law. These laws ensure that your wishes are respected and that your loved ones are taken care of when you’re no longer around.

Let’s dive into how a last will works in Indonesia and the key legal aspects you need to know.

What Is a Last Will?

A last will, or "testament," is a legal document where you express your wishes about how your assets should be distributed after your death. It’s your way of ensuring that your family, friends, or even charities receive what you want them to have. I

n Indonesia, the rules for creating and executing a last will depend on your religion, marital status, and the type of assets you own.

Legal Grounds for Last Wills in Indonesia

1. The Civil Code

The Civil Code (Kitab Undang-Undang Hukum Perdata, or KUHPer) is the primary legal foundation for last wills in Indonesia, especially for non-Muslims. It outlines who can make a will, how it should be written, and how it should be executed. Here are some key points from the Civil Code:

1. Who Can Make a Will? According to Article 895 of the Civil Code, anyone aged 18 or older and of sound mind can make a will.
2. Types of Wills. The Civil Code recognizes three main types of wills:Holographic Will, Testamentary Will, and Secret Will. 
3. Inheritance Rules. The Civil Code also defines "legitimate heirs," such as your spouse, children, and parents. These heirs are entitled to a reserved portion of your estate, known as the "legitime portie." This means you can’t give away all your assets to someone else in your will. Your legitimate heirs have a legal right to a share.

2. The 1974 Marriage Law

The 1974 Marriage Law (Undang-Undang No. 1 Tahun 1974) plays a crucial role in determining how marital assets are divided after your death. Under this law, any property acquired during your marriage is considered joint property (harta bersama), unless otherwise agreed in a prenuptial agreement.

If you pass away, your spouse is entitled to half of the joint property, while the other half becomes part of your estate to be distributed according to your will or inheritance laws. This is why it’s essential to clearly outline your wishes in your will, especially if you have specific plans for your assets.

3. The Islamic Compilation Law

For Muslims in Indonesia, inheritance matters are governed by the Islamic Compilation Law (Kompilasi Hukum Islam, or KHI). This law is based on Islamic principles and applies to both wills and inheritance distribution. Here are the key points:

1. Limitations on Bequests. Under Islamic law, you can only allocate up to one-third of your estate through a will. The remaining two-thirds must be distributed to your heirs according to faraid (Islamic inheritance rules).
2. Who Are the Heirs? The KHI defines specific heirs, such as your spouse, children, and parents. Male heirs typically receive a larger share than female heirs, based on Islamic principles.
3. Witnesses. A will under Islamic law must be witnessed by at least two people for added legal certainty.

Why You Need a Last Will

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

1. Clarity and Peace of Mind. A will ensures that your wishes are clear and legally binding. Without a will, your assets will be distributed according to default inheritance laws, which may not align with your preferences.
2. Avoiding Family Disputes. Let’s face it. Inheritance issues can cause tension among family members. A well-drafted will can help prevent misunderstandings and conflicts.
3. Protecting Your Loved Ones. If you have dependents, such as young children or elderly parents, a will allows you to provide for their future. You can also appoint a guardian for your children if needed.
4. Supporting Charities or Non-Heirs. If you want to leave part of your estate to a charity or someone outside your immediate family, a will is the only way to make it happen.

How to Create a Last Will in Indonesia

Creating a last will in Indonesia is a straightforward process, but it’s important to follow the legal requirements to ensure its validity. Here’s a step-by-step guide:

1. Decide What to Include. List all your assets, including property, bank accounts, investments, and personal belongings. Decide who will inherit each item.
2. Choose the Type of Will. Depending on your preferences and legal needs, you can choose a holographic, testamentary will, or secret will. For most people, a testamentary will is the safest option because it’s legally binding and difficult to contest.
3. Consult a Legal Expert. A legal expert like Wijaya & Co can help you draft your will and ensure it complies with Indonesian law. They will also register your will at a probate office in Indonesia. 
4. Appoint an Executor. An executor is someone you trust to carry out your wishes. This could be a family member, friend, or legal professional.
5. Sign and Witness the Will. Make sure your will is signed and witnessed according to the legal requirements. For a testamentary will, this will be done in the presence of the two witnesses.
6. Keep It Updated. Life changes, and so should your will. Review and update your will regularly, especially after major life events like marriage, divorce, or the birth of a child.

What Happens If You Don’t Have a Will?

If you pass away without a will, your estate will be distributed according to Indonesia’s default inheritance laws. For non-Muslims, this means following the Civil Code, while Muslims will follow the Islamic Compilation Law. This process can be time-consuming and may not reflect your personal wishes.

Common Mistakes to Avoid

When creating a last will, it’s important to avoid these common pitfalls:

1. Not Consulting a Legal Expert. Drafting a will without legal advice can lead to errors or disputes. Always consult a lawyer like Wijaya & Co. 
2. Ignoring Reserved Portions. Remember that legitimate heirs are entitled to a reserved portion of your estate. Failing to account for this can make your will invalid.
3. Failing to Update Your Will. An outdated will can cause confusion and may not reflect your current wishes.

Final Thoughts

Creating a last will in Indonesia is an essential step in securing your legacy and protecting your loved ones. By understanding the legal frameworks, such as the Civil Code, the 1974 Marriage Law, and the Islamic Compilation Law, you can ensure that your wishes are respected.

You and I both know that life is unpredictable. Taking the time to draft a will is a thoughtful and responsible way to plan for the future. So, why not start today? Your loved ones will thank you for it.

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