The death of either the Indonesian spouse or the foreign national spouses in mixed marriage situation inevitably raises inheritance issues. How the inheritance is handled varies depending on which spouse dies, or if the couple are foreign nationality, this article explores the intheritance issues that occur.

Many foreign nationals who reside in Indonesia or who are married to Indonesian nationals and have lived in Indonesia for many years seem to assume that Indonesia laws will apply to their estate when they die since Indonesia laws usually apply in their daily life. This is different from the Dutch inheritance law in Netherlands. Their law also applies to foreign residents who lived there for five years before their death.

However, when a foreign national or foreign spouse dies, even if he or she lives in Indonesia, the Indonesian laws will not necessarily apply to the estate of the deceased foreign spouse.

As a general rule, the inheritance procedures in Indonesia are subject to the laws of the deceased person’s home country. However in accordance with the laws of the deceased person’s home country, Indonesian laws may apply in exceptional cases.

In common law countries such as UK and USA , the inheritance of real property will be governed by the laws of the country where the real estate is located and assets other than real property will be governed by the laws of the deceased’s domicile. This means that if the deceased person is a citizen of a common law country (or the territory), the inheritance of the real property located in Indonesia will be governed by the laws of Indonesia and the other assets such as moveable goods (non fixed assets) will be governed by the laws of the
country (or territory) of the deceased’s domicile.

The Indonesian Inheritance Law allows individuals to establish their heirs but only when a will or succession by will is prepared. If this document is not drawn up , then the succession will be determined as per the law.

When there is no will present, only blood relatives and spouses are entitled to inherit the assets, the children and the spouse have priority over other groups of relatives such as brothers or sisters. The children have the right to receive a fixed amount of the inheritance, also referred to as a statutory claim.

When there is no will, some problems might occur and make the procedure complicated when you have a children with your Indonesian spouse and you have children from your previous marriage or when you have Indonesian spouse who has children from a previous marriage. These are applicable both to either fixed or non fixed assets.

If a person dies in Indonesia without leaving a will, Indonesian intestacy rules in their inheritance law sates that the estate distributes equally between the spouse and the children. However, if there is no partner or child, parents and siblings share the estate. Grandparents are next, and the last, in the succession line. Note that a partner who is not married to the deceased with them is not considered an heir and is barely protected by law, unless if a will is drawn.

Foreign citizen in Indonesia may use the provisions of the foreign inheritance laws and the international private law if they prepare their will in Indonesia.

When a foreigner dies in Indonesia without leaving a will, it creates a heavy burdern for the surviving family members who will have to undertake the inheritance procedures in Indonesia. This is due to the necessity of researching foreign laws to determine which country’s laws will apply as well as the likelihood that the documents required for procedures at various governmental entities and financial institutions may be quite different.

Having said that, merely having a will is not adequate. Just because a will made in a foreign country based on the laws of that foreign country maybe a valid in that particular country does not necessarily mean that it will be valid in Indonesia.

Therefore if a will is being drawn it is advisable to consider whether the content would be viable in Indonesia , or simply make a will before the Notary for liable assets located in Indonesia.

DRAWING UP A WILL

Foreign nationals with property in Indonesia should write a will to make the inheritance process easier.

A notary deed will is by the far most commonly used form of will in Indonesia. A notary deed will is a will prepared by a notary public, under the Indonesian law this kind of will must be notarized by notary public and registered at the Government official will centre . This kind of will is highly advantageous results in a quicker distribution of assets to heirs. There is no legal restriction on foreign nationals using notary deed wills.