What happened in case of an invalid will?

[flavus]

Per the Agrarian Law No. 5 / 1960, it seems that the only way an ex-/non-citizen can inherit property with Hak Milik (full ownership) is in case there is no will (in which case either civil or Islamic default inheritance rules apply).

In such cases the foreigner has a year to liquidate this or it reverts to the state.

But what if there is a will... but the will is invalid?

I can see several options, but I wonder if anyone knows for sure. Or it depends on whether whoever gets to decide had for breakfast that morning...

• The parts of the will naming an ex-citizen to inherit ineligible property are struck off, the rest of the will is valid
• In that case - how are these reallocated? Do they get surrendered to the state?
• The whole will is thrown out. Presumably default inheritance rules apply. Or it goes to the state?
• Best case scenario but actually messiest: foreigner still inherits, has one year to liquidate (can't be fun if they don't live in country)

Appreciate that most advice will be IANAL, just want to get an initial feel. Main motivation is to discourage relatives from naming us to avoid complications. Thanks!

Undang-Undang Nomor 5 Tahun 1960 - Pusat Data Hukumonline

PERATURAN DASAR POKOK-POKOK AGRARIA - Undang-Undang Nomor 5 Tahun 1960

www.hukumonline.com

 

[Samoerai]

What are the reasons that the will is invalid? Are those reasons valid in this country, being Indonesia?

 

[flavus]

What are the reasons that the will is invalid? Are those reasons valid in this country, being Indonesia?

The one I'm concerned with is if some of the people named (me) are no longer citizens - would that invalidate the will?

Either way, the part of the UU listing the circumstances in which a foreigner might temporarily inherit Hak Milik will no longer apply, based on my reading, so I'm unclear what might happen in that case.

 

[mellowyellow]

not being indonesian citizen is not a reason for depriving you of inheritance. but you may not get a share if the deceased is muslim and you are not. religion is a big factor. need to specify religion of deceased and religion of the beneficiary

 

[flavus]

not being indonesian citizen is not a reason for depriving you of inheritance. but you may not get a share if the deceased is muslim and you are not. religion is a big factor. need to specify religion of deceased and religion of the beneficiary

Non Muslim for both - though WNAs without KTP Orang Asing don't really have religion listed in any official documents

 

[Ruserious]

A non Indonesian can be listed in a will to inherit property - and then they get the 1 year to sell it.
It does not make the will invalid - i just did this process with a notary.

 

[flavus]

A non Indonesian can be listed in a will to inherit property - and then they get the 1 year to sell it.
It does not make the will invalid - i just did this process with a notary.

Thank you! I wonder what the legal basis for that is - would you happen to know? The Agrarian Law I found doesn't cover this.

 

[mellowyellow]

Non Muslim for both - though WNAs without KTP Orang Asing don't really have religion listed in any official documents

The estate is not "devolved" to the state just because the will is cancelled or not effective. See this article from Hukom online ( you may need to do Google translate to read this)

Akibat Hukum Pembatalan Surat Wasiat

Pada praktiknya, surat wasiat dituangkan dalam bentuk akta otentik oleh notaris sehingga memiliki kekuatan hukum yang sah dengan bukti yang kuat. Surat wasiat yang dibuat di hadapan notaris dapat dibatalkan.

www.hukumonline.com

You will still need to go to court to apply for an inheritance certificate order. See this link

https://lawjakarta.com/inheritance-2/purpose-of-inheritance-certificate-foreign-deceased/

But please contact either of the two websites for online consultation - Hukum online justika www.justika.com charges something like rp 30,000 for 30 minutes consultation. Lawjakarta.com is free for initial consultation

 

[flavus]

You will still need to go to court to apply for an inheritance certificate order. See this link

Thanks. Hmm, that seems to be for the opposite case - where the deceased is a foreigner?

Edit: it covers both, the second article's summary is a bit misleading but it basically said the certificate is needed even if the deceased is foreign

 

[jstar]

A non Indonesian can be listed in a will to inherit property - and then they get the 1 year to sell it.
It does not make the will invalid - i just did this process with a notary.

Thank you! I wonder what the legal basis for that is - would you happen to know? The Agrarian Law I found doesn't cover this.

We had these discussions like 10 years ago.

The problem was, that some people interpreted this paragraph (3) in the text of law differently. They said it means that with a will it is not possible for a foreigner to inherit. I guess Ruserious just debunked that (again); at the time an ex-WNI inherited with a will.

Undang Undang No. 5 Tahun 1960
Tentang : Peraturan Dasar Pokok-pokok Agraria

Pasal 21.
(1)Hanya warga-negara Indonesia dapat mempunyai hak milik.

(2) Oleh Pemerintah ditetapkan badan-badan hukum yang dapat mempunyai hak milik dan syarat-syaratnya.

(3) Orang asing yang sesudah berlakunya Undang-undang ini memperoleh hak milik karena pewarisan tanpa wasiat atau percampuran harta karena perkawinan, demikian pula warga-negara Indonesia yang mempunyai hak milik dan setelah berlakunya Undang-undang ini kehilangan kewarga-negaraannya wajib melepaskan hak itu didalam jangka waktu satu tahun sejak diperolehnya hak tersebut atau hilangnya kewarga-negaraan itu. Jika sesudah jangka waktu tersebut lampau hak milik itu dilepaskan, maka hak tersebut hapus karena hukum dan tanahnya jatuh pada Negara, dengan ketentuan bahwa hak-hak pihak lain yang membebaninya tetap berlangsung.

(4) Selama seseorang disamping kewarga-negaraan Indonesianya mempunyai kewarga-negaraan asing maka ia tidak dapat mempunyai tanah ...

Translation:

Law No. 5 of 1960
Concerning: Basic Regulations on Agrarian Principles

Article 21.
(1) Only Indonesian citizens can have property rights.

(2) The Government shall stipulate legal entities which may have property rights and the terms and conditions thereof.

(3) Foreigners who, after the enactment of this Law, obtain ownership rights due to inheritance without a will or a mixture of assets due to marriage, as well as Indonesian citizens who have ownership rights and after the enactment of this Law lose their citizenship are obliged to relinquish these rights. within one year of acquiring that right or losing that nationality. If after that period of time the ownership rights are released, then these rights are nullified by law and the land belongs to the State, provided that the rights of other parties burdening it continue.

(4) As long as a person besides his Indonesian citizenship has foreign citizenship, he cannot own land...

 

[snpark]

Well it won't will, will it
It will won't.

 

[flavus]

How did I miss reading this part!

demikian pula warga-negara Indonesia yang mempunyai hak milik dan setelah berlakunya Undang-undang ini kehilangan kewarga-negaraannya

Thanks

So yeah, one reason to properly process relinquishing my citizenship I guess.

 

[centurion]

A non Indonesian can be listed in a will to inherit property - and then they get the 1 year to sell it.
It does not make the will invalid - i just did this process with a notary.

It looks like the notary made some hanky-panky, maybe you should provide more details about what exactly happened. One cannot put a foreign citizen in a will, and actually, cannot put a double citizen in a will as well (meaning kids below 21 years) for transfer of freehold (hak milik). That transfer is null and void and land goes immediately to the state (Article 26 of the Agrarian Law).

Article 26.
(1) Buying and selling, exchange, grants, gifts by will, gifts according to
customs and other acts. intended to transfer rights ownership and supervision are regulated by Government Regulation.
(2) Every sale and purchase, exchange, gift, gift by will, and other acts intended to be a direct or indirect transfer of property rights to a foreigner, to a citizen of a different country that besides Indonesian citizenship, they have foreign citizenship
or to a legal entity unless stipulated by the Government referred to in Article 21 paragraph (2), is null and void because of the law and the land falls to the State, provided that the rights of other parties burdening it continue and all payments received by the owner cannot be claimed again.

Pasal 26.
(1) Jual-beli, penukaran, penghibahan, pemberian dengan wasiat, pemberian menurut adat dan perbuatan-perbuatan lain yang. dimaksudkan untuk memindahkan hak milik serta pengawasannya diatur dengan Peraturan Pemerintah.
(2) Setiap jual-beli, penukaran, penghibahan, pemberian dengan wasiat dan perbuatan-perbuatan lain yang dimaksudkan untuk langsung atau tidak langsung memindahkan hak milik kepada orang asing, kepada seorang warga-negara yang disamping kewarganegaraan Indonesianya mempunyai kewarga-negaraan asing atau kepada suatu badan hukum kecuali yang ditetapkan oleh Pemerintah termaksud dalam pasal 21 ayat (2), adalah batal karena hukum dan tanahnya jatuh kepada Negara, dengan ketentuan, bahwa hak-hak pihak lain yang membebaninya tetap berlangsung serta semua pembayaran yang telah diterima oleh pemilik tidak dapat dituntut kembali.

 

[flavus]

One cannot put a foreign citizen in a will, and actually, cannot put a double citizen in a will as well (meaning kids below 21 years) for transfer of freehold (hak milik). That transfer is null and void and land goes immediately to the state (Article 26 of the Agrarian Law)

Aha, thank you, I should have read the entire law.

This was the worst case my wife and I discussed, but even the second worst case (of having to sort out inheritance while abroad - no way we can afford to spend months in Indonesia with our jobs and kid) was not much better.

This is the 'ammo' we need to persuade some relatives to plan accordingly in their will

 

[snpark]

Can't it be owned by a PT.
Then the PT can be owned by an offshore company?

 

[flavus]

Can't it be owned by a PT.
Then the PT can be owned by an offshore company?

Probably, but in this case it seems convoluted given all the beneficiaries are not residents

 

[Helpful Herbert]

A non Indonesian can be listed in a will to inherit property - and then they get the 1 year to sell it.
It does not make the will invalid - i just did this process with a notary.

That's interesting. Would that then bypass the possibility of other direct relatives having a claim for part of the property? [I understood that normally it is split between spouse, kids and surviving parents in certain proportions]

 

[serious_fun]

One cannot put a foreign citizen in a will, and actually, cannot put a double citizen in a will as well (meaning kids below 21 years) for transfer of freehold (hak milik). That transfer is null and void and land goes immediately to the state (Article 26 of the Agrarian Law).

A non Indonesian can be listed in a will to inherit property - and then they get the 1 year to sell it.
It does not make the will invalid - i just did this process with a notary.

So... what to believe? WNAs are screwed immediately, or WNAs are screwed if they don't sell within 12 months?

 

[centurion]

So... what to believe? WNAs are screwed immediately, or WNAs are screwed if they don't sell within 12 months?

Screwed immediately, and land go to the state.

Maybe the other inheritors could invalid such will as it is aginst the public order (transfers land to a foreigner, which is illegal).

 

[flavus]

Assuming worst case scenario, the least screwy way is to have no will at all (very risky) or preemptively move assets to a PT (not suitable unless you have significant assets I guess)

In the US people sometimes put property under a trust to avoid having to go through probate when the "owner" passed away - but that seems much simpler than establishing and maintaining a PT in Indonesia