The Intestacy Displays the Need for Last Wills in Indonesia: But How?

Life is unpredictable. You and I both know that. One moment we’re here, and the next, we’re not. While this is a reality we all face, it’s not something we like to dwell on. But let’s pause for a moment and think about what happens when someone passes away without leaving a last will. 

In Indonesia, this situation, called intestacy, can lead to confusion, disputes, and even broken family ties. That’s why having a last will is so important. 

Let’s explore why intestacy highlights the need for last wills in Indonesia and how we can address this issue using the legal framework available to us.

What Happens When There’s No Will?

When someone dies without a will in Indonesia, their estate is distributed according to the default rules of inheritance. These rules are rooted in various legal systems, including the Civil Code, the 1974 Marriage Law, and the Islamic Compilation Law (Kompilasi Hukum Islam, or KHI). The problem? These laws don’t always reflect the deceased’s personal wishes or the unique dynamics of their family.

Under the Civil Code, for instance, inheritance is divided among heirs in a strict order. Children and spouses are prioritized, followed by parents and siblings. While this might seem fair on the surface, it doesn’t account for situations where the deceased might have wanted to leave something to a close friend, a charity, or even a specific child who took care of them in their later years. Without a will, these wishes are ignored.

The Islamic Compilation Law, which applies to Muslims in Indonesia, also has its own set of rules. It follows the principles of faraid, where male heirs generally receive a larger share than female heirs. While this is based on religious teachings, it can sometimes lead to disputes, especially in modern families where gender equality is highly valued. Again, a will could help address these concerns by allowing the deceased to distribute their assets in a way that feels just and equitable to them.

The Legal Grounds for Last Wills in Indonesia

So, how can we avoid the complications of intestacy? The answer lies in creating a last will, which is legally recognized in Indonesia. Let’s take a closer look at the legal grounds that support this.

1. The Civil Code

The Indonesian Civil Code (Kitab Undang-Undang Hukum Perdata, or KUHPer) provides a clear legal basis for making a last will. Articles 875 to 914 outline the rules for wills, including who can make one, how it should be written, and what it can include. For example, Article 875 defines a will as a legal document in which someone declares their wishes regarding the distribution of their assets after death. It must be made in writing and signed in the presence of two witnesses to be valid.

The Civil Code also allows for several types of wills, including public wills (also called testamentary wills ), private wills (written by the testator themselves), and oral wills (declared verbally in emergencies). This flexibility makes it easier for people to create a will that suits their circumstances.

2. The 1974 Marriage Law

The 1974 Marriage Law (Undang-Undang Nomor 1 Tahun 1974) also plays a role in inheritance matters. Article 35 states that property acquired during marriage is considered joint property, unless otherwise specified. This means that when one spouse passes away, their share of the joint property becomes part of their estate and is subject to inheritance laws.

By creating a will, a person can clarify how their share of the joint property should be distributed. This can help prevent disputes between the surviving spouse and other heirs, ensuring that everyone receives their fair share.

3. The Islamic Compilation Law

For Muslims, the Islamic Compilation Law provides additional guidance on inheritance and wills. Article 195 of the KHI explicitly allows Muslims to make a will, as long as it doesn’t exceed one-third of their total estate. This limitation is meant to protect the rights of the legal heirs, who are entitled to specific shares under Islamic law.

However, the KHI also recognizes the importance of fulfilling the deceased’s wishes. For example, Article 197 states that a will can be made in favor of non-heirs, such as adopted children or charitable organizations. This provides an opportunity for Muslims to address unique family situations or support causes they care about.

Why Intestacy Isn’t Enough

You might be wondering, “If we already have these laws, why do we need a will?” The truth is, while the legal framework provides a safety net, it’s not perfect. Intestacy laws are designed to apply broadly, but they can’t account for the specific needs and wishes of every individual. Here are a few reasons why relying on intestacy alone isn’t enough:

1. Family Disputes. Without a will, disagreements over inheritance are common. Siblings might argue over who gets what, or stepchildren might feel excluded. A will can help prevent these conflicts by clearly outlining the deceased’s intentions.
2. Unaddressed Relationships. Intestacy laws prioritize immediate family members, but what about close friends, unmarried partners, or adopted children? These relationships often go unrecognized, leaving loved ones without support.
3. Charitable Giving. Many people want to leave a legacy by donating to charity or supporting a cause they care about. Intestacy laws don’t allow for this, but a will does.
4. Changing Family Dynamics. Modern families are more diverse than ever, with blended families, same-sex couples, and other non-traditional arrangements. Intestacy laws don’t always reflect these realities, but a will can.

How Can We Encourage More People to Make Wills?

Now that we understand the importance of last wills, the next question is: How can we encourage more people to create them? Here are a few ideas:

1. Raise Awareness. Many people don’t realize the benefits of having a will or think it’s only for the wealthy. Public education campaigns can help dispel these myths and highlight the importance of estate planning for everyone.
2. Simplify the Process. Creating a will can seem intimidating, especially for those who aren’t familiar with legal procedures. Affordable legal services from a lawyer like Wijaya & Co can make the process more accessible.
3. Involve Religious Leaders. For Muslims, religious leaders can play a key role in promoting the importance of wills. By emphasizing that wills are compatible with Islamic teachings, they can help overcome cultural or religious barriers.
4. Incentivize Estate Planning. The government could offer incentives, such as reduced taxes or fees, for those who create a will. This would encourage more people to take action while also benefiting the state by reducing inheritance disputes.

Conclusion

You and I both know that planning for the future isn’t always easy, but it’s one of the most important things we can do for our loved ones. In Indonesia, the complexities of intestacy highlight the need for last wills as a way to ensure that our wishes are respected and our families are cared for.

By understanding the legal grounds provided by the Civil Code, the 1974 Marriage Law, and the Islamic Compilation Law, we can see that creating a will is not only possible but also highly beneficial. Whether it’s to prevent disputes, recognize non-traditional relationships, or leave a charitable legacy, a will gives us the power to shape our legacy in a way that reflects our values and priorities.

So let’s take that step. Let’s start the conversation about last wills and encourage more Indonesians to plan for the future. Because when it comes to protecting our loved ones, there’s no better time than now.

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