My father was an Indonesian Citizen and he had 3 children. My first sibling has been a foreigner or Foreign Citizen for more than 5 years. The other sibling has been married to a foreigner for more than 5 years. My sibling who is married to a foreigner does not have a prenuptial agreement and does not register their mixed marriage in Indonesia.
Now, it’s only me who is still an Indonesian Citizen. My father recently passed away. At this time, my sibling made a fake will that divided our father's inheritance by 50% for the first sibling and 50% for the second sibling. Our father's inheritance is in the form of a house, land, deposits, and companies. How is the division of inheritance with the state of their citizenships like that? Thank you for your information.
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As for the distribution of inheritance, according to the Indonesian Civil Code (“Civil Code”), in principle, all heirs are entitled to an equal share of an inheritance, regardless of gender (male or female), as well as nationality of the heirs. The legal bases are:
Article 852 section (1) Civil Code:
"….with no difference between a male and a female and no difference based on first birth."
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Article 852 section (2) Civil Code:
"They inherit the same share head after head..."
According to the Civil Code, the principles of inheritance are:
Inheritance is opened (may be inherited by other parties) in the event a death occurs (Article 830)
The existence of blood relations between the testator and the heir, except for the husband or wife of the testator (Article 832), provided that they are still bound in the marriage when the testator passed away.
Therefore, according to the Civil Code, the share of each child (provided there is no mother or wife of the testator), shall be the same amount, namely: 1/3 of the same amount if there is no will.
One thing that needs to be noted here is that the prohibition of land ownership by foreigners or Foreign Citizens does not result in the abolition of the inheritance of the said Foreign Citizens. Generally, the solution is the heirs with foreign citizenships will receive compensation in the form of cash or proceeds from the sale of the land and buildings (if sold).
The 1/3 part can be implemented on the condition that there is no will. Assuming, if there is a will, and if the will is indeed true, then the heirs who do not receive the inheritance are included as heirs who are set aside (onterfd). However, the heirs who have been set aside are still entitled to claim the absolute rights that should be obtained according to the law (a person’s legitime portie).
According to Article 913 Civil Code, legitime portie ("LP") is a part of the inheritance that must be given to the heirs, a straight line according to the provisions of the law, in which the deceased is not allowed to determine something, either as a gift between those who are still living or as a testament/will. Therefore, the testator may write a will or give a grant/bequest to someone, however, this grant may not violate the absolute rights (which must be owned) of the heirs according to the Law. In your case, your LP as heir according to the law is 3/4 x 1/3 part. However, the LP must be claimed/demanded, then it could be granted.
If it turns out that the will was forged, it must first be proven legally. If it has been proven legally, that he/she is proven to have forged a will from the testator, then according to the Article 838 Civil Code, they are dismissed as heirs (onwardig). Onwardig people are not entitled to inherit from the testator.
These are the answers we can provide, we hope you will find them useful.
Some answers to the question concerned also can be found in the book entitled Kiat Cerdas Mudah dan Bijak Dalam Memahami HUKUM WARIS, written by Irma Devita Purnamasari, S.H., M.Kn. (Kaifa, Desember 2012).
