Outline
A. Steps/Procedure to distribute deceased estate
B. Distribution of deceased estate
C. Sale of deceased’s estate land (heir is foreigner)
A. Steps/Procedure to distribute deceased estate
What are the steps to carry out the deceased estate division?
These are the steps to be taken in order to new empowered to sell or distribute the deceased estate.
The most important document is the Inheritance Declaration Letter or inheritance certificate (SURAT PERNYATAAN AHLI WARIS). This letter is required in order that the heirs can sell/distribute the assets.
The inheritance is a statement stipulating the heirs entitled to distribution, their respective shares.
Inheritance Declaration Letter or inheritance certificate (SURAT PERNYATAAN AHLI WARIS) takes effect with signatures of all the heirs witnessed by notaries , validated by the village head, and confirmed by the local sub-district head.
The inheritance certificate is necessary for the heirs to deal in the assets of the deceased estate such as transferring the land into the joint names of the heirs or sold off to third party with the proceeds divided according to the share in the inheritance certificate. If one or more of the heirs is not cooperative in signing the inheritance certificate, it will be necessary to file law suit to get a court order which can then serve as the document for the heirs authority to sell and/or deal in the property.
See this page as to when a court order confirming inheritance is necessary.
See also this page for further explanation of the purpose of inheritance certificate and whether foreign probates are recognized in Indonesia.
B. Distribution of deceased estate (where there is no will)
Muslim person
Islamic testamentary distribution is regulated by the Qur’an and the Compilation of Islamic Law (Kompilasi Hukum Islam). The following verse from the Qur’an’s An Nisa letter is often quoted ( English translation of the relevant reverse 12 from An Nisa letter):
“And for you (husbands) is half of the wealth left by your wives if they have no children. If your wives have children, you get a fourth of what they leave behind after the bequest they have made or (and) after the debt is paid. The wives get the property you leave if you have no children. If you have children, the wives get one-eighth of the property you leave after the fulfillment of the will you made or (and) after the payment of your debts. If a man dies, neither a man nor a woman who has left no father and no child but has a brother (mother only) or a sister (mother only), for each of the two types of brothers is one-sixth of the property. However, if the half-siblings are more than one, they are allies in that third, after fulfilling the will made by him or after paying his debt by not givingharm (to the heirs). (Allah has decreed that as) a law that is truly from Allah and Allah is All-Knowing, All-Forbearing ”.
In order to properly understand distribution under Islamic law, it is necessary to first have the following broad understanding :
- Fixed share allotment next of kins (referred to as Dzawil Furudh) – There are specific group of next of kin who will be allotted fixed share from the estate – these includes the spouses, parents, siblings of the deceased. The share allotment depends on whether the decreased has any offsprings. Widows get a 1/4 if the deceased husband does not have offspring, and if the heir leaves behind offspring, then the widow gets 1/8 share. Where the deceased has offsprings, the share of deceased’s father and mother is 1/6 and deceased’s wife is 1/8 of the share.
- Remainder share of the estate (referred to as ashabah) for offsprings – these next of kin will be entitled to the remaining portion of the estate after computing for the group who would get the fixed shares. The people in this group would be in offsprings of the deceased. Note that the son will get. Note however that the daughter will fall under the previous group where she is the only offspring – in such situation, she will get half share.
The above does not exhaustively represent distribution under Islamic law in all scenario, but should, hopefully, shed some light on typical family situations.
Before the inheritance can be distributed to the heirs, the following should first be provided for out of the estate: 1. Funeral related expenses; 2. Bequeath through will of the deceased (not more than 1/3 of the estate); and 3. Debts owed from the lthe deceased.
Non-Muslim person – If there is no will, the deceased’s assets are to be distributed as to the following categories of beneficiaries as follows:
– Firstly, to spouse and children (Article 852, Indonesia Civil Code).
– If not, to the parents and siblings (Articles 854 to 856, Indonesia Civil Code).
– Next in line – (Article 857, Indonesia Civil Code) – In the absence of the above – any relatives up to the sixth degree (Article 858, Indonesian Civil Code).
C. Sale of deceased’s estate land (and where heir is foreigner)
In the case of any sale of deceased land, all the heirs will need to sign the deed of transfer. One convenient way is for all the heirs to appoint a lawyer as their attorney through a power of attorney. With this power of attorney, it is no longer necessary to have all the heirs sign the deed of transfer.
The above procedure also applies to situations where one or more heirs are not Indonesian citizens. This can happen when the deceased re-marry and settled down in Indonesia while children from the earlier marriage holds non Indonesian citizenship.
In cases where one or more heir is not Indonesian citizen, then this heir has up to one year to sell off the property to avoid forfeiture to the State.
Law 5 of 1960 (Agraria Law) – “A foreigner who after the enactment of this law shall acquire property rights due to inheritance without time or the mixing of property due to marriage, as well as an Indonesian citizen who has property rights and after the enactment of this law loses his citizenship, it is obligatory to relinquish the right within one year from the acquisition of the right or the loss of citizenship.”
Undang Undang Nomor 5 tahun 1960 tentang Peraturan Dasar Pokok-Pokok Agraria (UUPA) , Pasal 21(3) “Orang asing yang sesudah berlakunya undang-undang ini memperoleh hak milik karena pewarisan tanpa waktu atau percampuran harta karena perkawinan, demikian pula warga negara Indonesia yang mempunyai hak milik dan setelah berlakunya undang-undang ini kehilangan kewarganegaraanya, wajib melepaskan hak itu dalam jangka waktu satu tahun sejak diperolehnya hak tersebut atau hilangnya kewarganegaraan itu.”
For transfer of shares from deceased to heirs, please see this page.