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WILL OR TESTAMENT

Category: Notary Services, Estate Planning Services
Written by Riska Destriyanti on 25/10/2022
The author’s views are entirely their own and may not always reflect the views of Putranto Alliance.

Will or testament is a statement from someone about what will happen after they die. Will or testament is important because it provides information about the property left by the owner when they die. Furthermore, the person who made it can revoke the will. The will is executed after the testator dies.

With this service, we provide advice and guidance on legitieme portie and will drafting and assist with the administrative process.

What is a Testament?

According to Article 875 of the Civil Code, a will is a deed that contains a person’s statement about what they want to happen after they die and by which it can be revoked. The testator created the will while they are still alive, but implemented it when they die.

From this definition, several elements of will are:

Applicable after the testator dies;
Done free of charge and unilateral action;
Personal nature;
Can be revoked; and
Made in the form of a deed.

Parents often make a will to distribute their property to their heirs. This action is important because it clarifies the property left by the owner when he dies and prevents disputes between heirs.

Four said groups of heir are, namely:

Group I

Husband/wife of the deceased and their children/offspring (Article 852 of the Civil Code)
Group II

Parents and siblings of the deceased
Group III

Families in a straight line up after the father and mother of the deceased
Group IV

Uncles and aunts of the deceased from both the father and mother side, including descendants of uncles and aunts up to the sixth degree.

There are 2 types of wills: inheritance strategy wills (erfstelling) and will grants (legal).

Inheritance Strategy Wills

The testator gives his property as a share (in whole, half, or one-third). The testator does not specify what objects or items he will give to the inheritor.
Will Grants

Leases are a special stipulation of a will. The person who bequeaths gives the beneficiary some of their goods of a certain type.

Why Do You Need a Testament?

The purpose of making a will is so that there is no quarrel between heirs who take over their parents’ inheritance. Currently, there are many divisions between families based on the division of inheritance belonging to their parents. Many parents make wills in the hope that by making this will, their heirs can inherit fairly and there is no discrimination.

Types of Testament

Based on the Civil Code, wills can be divided into 3, namely:

Olographic Will

The testator made and signed the will by himself. Once made, they can submit it privately or openly, then stored in the Notary's office in the presence of two witnesses. If submitted in private, then its explanation will be in a separate paper. However, when done openly, the letter can contain the description of the deed of custody. This letter can also be requested again from a Notary using an authentic deed with the consequence that the letter is deemed to have been revoked.
Secret Will

This form of will is written alone or with the help of another person, which is then submitted in private to a Notary. The Notary will then make a deed of delivery in the presence of four witnesses. The testator must also provide a statement that the letter was written by themself or another person and sign it.
Open Will

This form of will is made by signing a notary to express his will in the presence of 2 witnesses. Afterwards, the Notary and witnesses sign it. In practice, this type is more common as a Notary can supervise the contents of the letter and give advice.

Things to Know When Making a Testament

When making a will, the testator must consider some things:

Two or more persons in the deed can't make the same will;
Giving inheritance to a person who killed the testator, a person who has embezzled, falsified, or destroyed a will, or a person who forced the testator to change or amend his will is forbidden;
It is not permissible to give a will for the benefit of the guardian;
It is not permissible to give a will to a married couple without permission; and
It is not allowed to give an inheritance to the heir's adulterous friend.

In addition, the will must also pay attention to the heirs’ absolute portion (legitieme portie). The heirs who have an absolute share (legitieme portie) are called legitimaries. The will must not violate the absolute part of the legitimaries.
Absolute portion (legitieme portie), according to the law, is the part that must be given to the heirs in a straight line according to the law, against which the person who dies may not determine something, either as a gift between people who are still alive or as a will.

In making a will, we must also meet the following requirements:

Legal Age

When a testator wants to make a will, they must have reached the age of consent and can carry out legal actions.
Mentally Competent

The testator must be mentally competent and write the letter consciously without coercion from other parties. In addition, the testator must be mentally stable and not under the influence of drugs, oversight, and doubt.
Clearly States the Inheritance

The testator must provide details about the inheritance in the will. This step is necessary if the will is written without the assistance of a notary. By clearly writing the object of this property, it makes it easier for the heirs to carry out the provisions in the will and to avoid the risk of irresponsible parties.
Verified by the Notary

Although this step is optional, having a Notary verify the will is recommended. By verifying the will to the Notary, it helps the will to be executed appropriately.

How to Make a Testament?

Before the testator makes a will, the testator must fulfill formal and material requirements such as being an adult, sensible, competent, and able to carry out legal actions.

To make a will, the testator can come to the Notary’s office or his legal consultant and notify him of his desire to make a will. The testator can list the assets included in the will in advance and appoint an executor of the will.

After that, the Notary will write down the will of the testator in clear words, and the Notary will formulate it in a sentence and read it directly in front of the testator and witnesses. The procedure of making a will varies, depending on the type of will, following the wishes of the parties concerned.

How We Can Help

In Indonesia, wills are not considered taboo. Many people in their productive age want to make wills for their heirs to ensure that their assets are divided fairly and do not end in disputes. With the existence of a will, the intended heirs can receive their parent’s property.

Making a will is one of the services Putranto Alliance can provide. We have legal consultants who can advise you on the will you need. You can contact us if you have any questions regarding a will or other matters relating to a will.