Last will is a legal instrument to distribute your assets to your next of kin after you’re gone. This is a very important document, and you want to do it the right way and properly. It’s because the property of the deceased belongs to the heirs, as long as there was no valid decision made in this matter.
The decision you’re making on the testament will determine who gets what. Basically, it is a statement of your last will to the surviving persons at your disposal. It is also revocable when you’re still alive to do so. It’s totally under your control. The last will is your official statement to nominate several administrators to administer your assets with the terms and conditions according to your own preferences.
You see, let’s find out what is the official definition of a last will. Article 875 of Civil Code stipulates that: “A testament or last will is a deed, containing a statement of an individual's wishes and intents to take effect following his death, and which deed can be revoked.” The deed must specify a clarity regarding the assets and the heirs who will receive them. The terms and conditions written on your last will must prevent disputes from taking place between your heirs.
Prenup or Postnup
You also need to have a prenup or to consider signing a postnup prior to writing a last will. You need to make sure that you have full control and authority in disposing of your assets, as they may be part of your joint property with your spouse. Your last will can not violate stipulations in the Marriage Law because it may be voidable. Your heirs may challenge it at the court, and things can go messy.
The reason why you need to have a prenup or postnup before you write a last will is because you need to make sure that the assets you dispose of in your last will are totally yours. Not part of community property with your husband or wife. If they do, at least you need their consent. You can not dispose of a disputed asset on your last will.
So, check again if your prenup got you covered for this. Otherwise, please consider getting a postnup before you write a last will.
You may dispose of your own separate assets on your last will. This is doable. Things like your assets acquired from your parents, inheritance, or from other third parties. They are disposable in your last will.
Under Article 36 (2) of the Marriage Law that stipulates: “In the matter of separate assets of husband and wife, they have full authority in committing legal action for their own property.”
Keep On Updating It
You need to update your last will to become recent and current. You may keep updating it according to your need to reflect your current situation. You may do so as long as you live. Your last will may only be executed when you’re pass-away.
I can't stress how important it is for your last will to get updated in regards to the terms and conditions, your heirs, and the administrator or executors nominated on your last will.
The Best Type
There are three types of last will in Indonesia, but the best one is an Open Testament. It is being kept as an authentic deed so when you pass-away, the probate process will be able to determine your wishes and they can be easily executed.
I would not recommend the Closed Testament. This type is to conceal the terms and condition of your last will. Potential disputes may arise in the future. Your heirs may file a lawsuit to revoke your last will. It’s the last thing you need.
My name is Asep Wijaya. Thank you for reading my posts!
Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!