Death is taboo. It isn’t something most people feel comfortable talking about and is often pushed to the back of the “polite topics of conversation” list at the dinner table along with religion, politics, and sex.
Strange really, because one of the only things we can really be sure of is that we are going to die.
According to statistics from Gallup and IRN, not many of us make plans about dying. Not in the sense of pining for the Fjords, or asking a good friend to help you pop your clogs (you might need to have grown up with Monty Python to appreciate that), but more in the context of Estate Planning – most of us may be more familiar with this as a Last Will and Testament.
Gallup, for example, claims that less than half of adults in the U.S. (around 46 percent) have a Last Will and Testament. IRN suggest that in Britain this is only four in 10 adults, while in Australia around 52 percent of people have not made any plans as to what happens to their assets when they meet their maker.
At Seven Stones Indonesia, we think Estate Planning is something to seriously consider a long time before you start pushing up the daisies. Thomas Edison is credited with saying something pertinent to this; “Good fortune,” he said, “is what happens when opportunity meets with planning.” In other words, success only happens when preparedness and opportunity meet. So be prepared!
Why is Estate Planning important?
A Last Will and Testament is a legal instrument, which allows a person to choose who benefits from their estate after their death. In this regard, it’s an expression of the wishes of the owner of the Will. This person is known as the “Testator” in legalese.
It’s basically a set of legally enforceable instructions, which enables the government to approve the distribution of a person’s assets; things like a house, money, cars, shares in a business, choosing beneficiaries of your estate, naming guardians for any dependants and having a financial plan for their support, leaving assets to a charity, and requesting preferences for funeral arrangements, for examples. It also allows for debts to be paid. Think of it a bit like a cleaning of the slate.
It sounds obvious because it is, but once a person dies they’re no longer able to take care of, or handle, assets or undertake transactions. It’s worth noting that when a person dies without a valid Last Will and Testament it’s the State that assumes control of their assets and, through the courts, distributes them according to a legal formula. Such a distribution is less likely to be in line with the wishes of the deceased. In these cases, people, agencies, and institutions, who may not have been front of mind of the Testator, are likely to benefit rather than the nearest and dearest of the deceased. This can result in confusion and some cases can lead to family members enduring painful legal battles. But by having a legally, well-written Last Will and Testament you significantly reduce any misunderstandings about how your assets are handled after you have died.
Trained lawyers help you navigate civil and common law
Seven Stones Indonesia has both domestically and internationally trained lawyers who can navigate Indonesian and international civil and common law jurisdictions. Our local lawyers can appear in courts all over the country, either in person or through our extensive network of associate law firms. While our international lawyers can assist with the drafting and execution of a will in most international jurisdictions. And if we can’t do it for whatever reason, we can identify someone competent who can from our associates. Our expertise in property and commercial activities also gives us an edge in managing the execution of a will, as much of a person’s estate is usually held in these types of assets.
We have a defined process to identify everything you need to draft and execute a will in Indonesia. In addition, our expertise in property sales assists property ownership and lease transfers, our commercial expertise assists with the corporate restructures required following the death of a company owner, we can assist in bank and financial transactions, facilitate visa changes, which are often required, and consult with the relevant consulates and embassies.
Depending on the complexity and size of an estate, it can take up to six months to settle an estate; longer if claims are made. There’s also a further layer of complexity if assets are held in multiple jurisdictions, like some in Indonesia and some in Australia, for example, because beneficiaries have to be identified and validated, court applications filed, disputes settled, assets liquidated (turned into cash), and debts settled.
All of this is this carried out by someone known as the Executor. This is the person the deceased has instructed to execute the will and carry out the wishes of the deceased and is considered to be a sacred and honoured position. However, sometimes the job is simply too big or too complex for one person to handle alone and promptly. In these cases, we can assist the Executor to competently and professionally carry out their important tasks.
Cross-border compliance and mixed marriages
Generally speaking, a valid will in one jurisdiction will be respected in another jurisdiction, as death is common to us all. For example, if an Indonesian will names assets or beneficiaries in another jurisdiction, competent lawyers in that jurisdiction can usually work with the courts to execute the will and release the assets to the Executor. It has to be said, however, that nothing is rarely that easy, and if cross-jurisdictional legal procedures are required it can be both costly and time-consuming to execute accordingly.
An Indonesian will is executed in Indonesia; an Australian will in Australia, and so on for other jurisdictions. If a foreigner holds assets in Indonesia it’s imperative they have a valid will in both their home country and in the Indonesian jurisdiction. Mixed marriages also complicate the process. A marriage valid in one jurisdiction may not be recognised in another jurisdiction. For example, Australians who conduct a marriage ceremony in Indonesia are not considered married under Australian law. Mick Jagger and Jerry Hall are a famous example of this. In Indonesia, Sharia law also applies to marriages which involve an Islamic party. In Bali, Hindu law will intersect with the execution of a will. This can become a complicated process but at Seven Stones Indonesia we have Hindu, Muslim, and Christian lawyers who can help make it less so.
Because most of us don’t get to choose when and where we die, it’s important to prepare a schedule of assets to attach to the will, together with the identity and current contact details of the Executor, family members, and details of police, ambulance, doctors, hospitals and funeral directors, and any other relevant details.
A Last Will and Testament is one of the most important documents you can have when you’re alive, and leave your family when you’re not. After a lifetime of working and collecting assets, it doesn’t make sense to just leave it up to a nameless government official to distribute your estate. A Last Will and Testament helps your family at a time of grief when they may not be able to undertake legal and commercial actions and in our opinion is an absolute must-have for any sensible foreigner in Indonesia.
If you’d like more information on how Seven Stones Indonesia can help you with your Estate Planning and walk you through drafting your Last Will and Testament, feel free to get in touch with us via [email protected]. You might just be giving your family and friends the gift of a lifetime.