A testament in Indonesia is the right instrument to reflect your last will about your assets, and other things that you want your successor to do for you. This is a very serious business as you need to make sure the person you trust as your administrator to execute those wishes after you're gone.
In order to valid legally, you need to make sure your last will is being written in a recognized testament. You should know that according to the Indonesian laws on inheritance, anything you own while you are alive belongs to your heir, as long as you have not made any withstanding legal stipulation. Some terms and conditions are applicable in order to create the last will that works for you, not against you.
One Testament for One Person
You and your spouse may have the same thing in mind. You love each other, spend your lives together, and think that it's now to pass everything to your loved ones. Both of you are thinking to write a last will to make sure they are getting everything after you passed-away.
It's a good idea! But you've got do it on a separate testament. Just because you're a husband and wife, you can't do it on the same document. You have to do it on a different deed. It's a last will, not a prenup.
Our Civil Code imposed the stipulation in Article 930: "A last will cannot be made by two or more individuals in one deed, whether it is in favor of a third party, mutual or reciprocal arrangement."
Types of Last Will
Your last will can be made by holographic. It means you can write it with your hand. It is a handwritten and testator-signed document. It is recognized in Indonesia, but it must be drawn-up with a deed of safekeeping. As the testator you must sign it at the bottom of your last will. It must also be signed in front of the two witnesses.
With the deed of safekeeping, such holographic last will have the same validity as a last will made by official deed, without having regard to the noted date on the last will. At all times, you may reclaim your holographic testament. It is then shall be regarded as revocation of your last will.Even though Indonesian laws on inheritance recognized this type of testament, nevertheless, I would suggest you to make time to draw-up a formally-drafted deed.
Your last will can also be made by official deed. It shall be executed in the presence of two witnesses. The deed must be signed by you as the testator, and his/her witnesses. If you're intend to make a private or confidential statement, you are required to put your signature beside each of your stipulations, either written by yourself, or those that were written by somebody else.
Criteria of the Witnesses
In order to write your last will, you need to have two witnesses present. This is mandatory requirement as imposed by all inheritance laws in Indonesia. The primary criteria to serve as witness that they must present at the time that last wills are made, shall be of age, and shall be resident in Indonesia.
Another criterias for serving as witness that you must meet capacities set-out by the law. No heirs, legatees, nor their blood relatives or relatives by marriage up to and including the fourth degree, nor their children or grandchildren, nor blood relatives in the same degree, shall be permitted to be witnesses of a last will, made in the form of an official deed.
Last Will During Pandemic
Last will creating during pandemic where all relations have been prohibited due to plagues or other contagious diseases, can make their last will in the present of two witnesses. You as the testator must sign it in front of the witnesses.
In the event the testator or one of the witnesses declares that he is unable to write or has been prevented from signing, then such declaration including the cause of the impediment shall be expressly referred to in the deed. All the circumstances, which have resulted in the last will being made shall be stated in the deed.
The last wills shall be invalid, if the testator dies six months after the circumstances which resulted in the wills being drawn up in such a format no longer exist. The last will shall be invalid, in the event that the testator dies six months after the date of the deed.
The formalities of the last will must be carefully observed in order to meet the stipulation according to the inheritance law. If you fail to do so, will render them invalid.
In Indonesia, we recognized this as "Hibah Wasiat." It is a special testament, under which the testator bestows onto one or more persons his properties of a certain kind, for example, all of his properties, movable or immovable, or the usufruct rights over the entire or part of his estate.
Each recipient of the testamentary gift must claim the transfer of the gifted properties against the successor or the testament recipient, who must transfer such properties. All taxes, under whatever name, payable to the state for each gift, is borne by the recipient unless otherwise stated in the testament.
Revocation and Expiration
A last will cannot, either in its entirety or partly, be revoked in any manner other than by a subsequent last will, in which the testator declares the full or partial revocation of his earlier last will.
The revocation, either express, or implied, in a subsequent last will, shall be fully enforceable, notwithstanding that the subsequent deed is rendered invalid due to the incompetence of the nominated heir or legatee, or by their refusal to accept the inheritance.
Executor and Administrator
A testator, may, by last will, appoint one or more executors of his last will. He may also nominate several individuals, to succeed one another in the event of unavailability. They have very important jobs to make the last will properly implemented.
The executors of a last will is to seal the inheritance. In the event that the heirs are minors under conservatorship, who, at the death of the testator have not been provided with guardians or conservators, or in the event that such heirs are not represented or are not present in person.
They prepare an estate description of the properties in the inheritance, in the presence of the heirs following the proper summons of those who reside within Indonesia. They ensure that the last will of the deceased shall be implemented. In the event of dispute, they can appear in court to maintain the validity of the last will.
The executors of last wills, including the administrator, may be discharged for the same reasons applicable to discharge of guardians.
“Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!”