1. UNDERSTANDING THE HEIRS
According to the law - law, There are two ways to get the inheritance, ie : 1.As heirs according to the provisions of law - law
2.Because designated in the will (testament).
The first way is called inherited "by - laws" or "ab intestato". While the second method is called the heir to "testamentair".
In inheritance laws apply basic, that when one dies, then instantly switch all the rights and obligations of all heirs.
This principle stated in a French proverb that reads : "Seize the living dead",
whereas the measurement of all the rights and obligations of the deceased by the heir was called "saisine". Beneficiary is every person entitled to the assets of the testator and shall complete the debt - debt.
The rights and obligations arising after the testator dies. Inheritance rights was based on marital relationships, cognation, and wills, which is set in - laws.
But legataris not beneficiaries, Although he is entitled to inheritance heir, as part limited to the rights to certain objects without obligation.
Article 833 Signs 1 KUHPdt stated that all heirs by itself because of legal property rights over all the assets of the deceased (heir).
Article 874 KUHPdt also stated that all the wealth of those who died belonged to all the heirs according to law - law, it's just a testament to not be taken by a statute invalid.
The provisions of Article - Article above is essentially based on the principle of "le mort saisit le vif", which has been called upon. Which means the people who died holding on to people who are still alive.
This principle implies that every object must be an owner. Each beneficiary is entitled to demand and fight for the rights of his heirs, according to Article 834 B.W.
A beneficiary is entitled to claim any effort whatsoever including inheritance and died handed to her by her rights as beneficiary (boundaries of a claim).
Rights prosecution prosecution resembles rights an owner of an object, and according to the prosecution's point should be addressed to the person who controls a heritage object with the intent to have it.
Therefore the, The prosecution can not be addressed on a course that was only houder, namely that the hang of it by a legal relationship with the deceased, eg rent.
The prosecution can not be addressed to a Executeur - testamentair or a curator of a heritage that is not manageable.
A beneficiary who exercise their right to such prosecution, enough to file a lawsuit in the letter, that he is the heir of the deceased to return the requested items including relics.
According to Article 1066 Signs 2 KUHPdt each beneficiary can claim the division of the estate, although there is no prohibition to do it.
So, heritage property may not be left in the condition is not divisible unless agreed not held division, and even this is not longer than five years.
While the beneficiary is entitled to inherit, where basically everyone though a newborn baby is competent to inherit only by law – law has established that there are people breaking their actions, inappropriate (unworthy) inherit.
It is specified in Article 838 KUHPdt deemed not fit to be a beneficiary, thus excluded from inheritance is :
1. those who have been convicted have been blamed for killing, or try to kill the heir;
2. those with the judge's decision was blamed for slander has made heir heir that has committed a crime punishable with imprisonment 5 (lime) years or more severe punishment;
3. they were forcibly prevented heir to make or revoke a will;
4. those who had embezzled, ruin, or fabricating wills heir.
Moreover, by law – law has established that there are people - people who are in touch with the office or employment, maupu relationship with the deceased, not allowed to receive the benefits of a will made by the deceased.
They are, Two of them are notaries who make wills it as well - witnesses who attended testament making it, pastors who serve or physician who treated the deceased during the last illness.
Even the grant beneficiary in a will to the people -people may be a mediator of person - this person ("Tussenbiede dependents") reversible.
As people - those intermediaries by - laws considered children - children and wives of people - people who are not allowed to accept the inheritance and it tastement.
Furthermore, in Article 912 set of reasons - reasons under section 838 abovementioned, cause a person should not be a beneficiary.
Applies also as obstacles to be able to receive grants - grants in a testament, except in article 912 no mention of people who have tried to kill the person who left a legacy.
If the deceased was evident in his will still leave a legacy of a man who has done so, it was regarded as a "forgiveness" of that person.
2. TERMS - CONDITIONS OF HEIRS
In chapter 832 KUHPdt stated that according to the law – The law is entitled to become beneficiaries, the family blood, both legitimate and outside marriage, and the husband or wife who lived the longest.
In terms of, whenever either by blood, as well as the longest living between husband and wife, nothing, then all the treasures of the deceased, belong to the state, which authorities will pay off all his debts, a sufficient price for the property peniggalan.
Then Menurt Article 874 KUHPdt declared all treasures someone who died, all belong to the heirs according to law - law, it's just a testament to the already passed a resolution that authorized.
According to Article 836 KUHPdt expressed by considering the provisions of Article 2 KUHPdt, so that it can act as an heir, one must have been born, at the time of inheritance falls meluang.
Where Article 2 KUHPdt states that a child in the womb of a woman, considered to have been born, whenever the interests of the child demands it,
But when the death of a newborn, it is assumed he had never been there. So according to the article - the article above conditions - conditions of beneficiaries is as follows :
1. have rights to inheritance and heir, arising from :
a. cognation (Article 832 B.W.)
b. because a will (Article 874 B.W.)
2. must already exist and are still there when the testator dies (Article 836 B.W.), with regard to the provisions of Article 2 B.W. 3. beneficiaries not a specified person should not be receiving an inheritance or who refuse inheritance,
The Article provides for the people who do not fit into beneficiaries, namely Article 838 B.W. which has been mentioned above in the previous section .
if we review the inheritance of the terms mentioned above, then there will be a question, how if between two people who are heir died in the same time?
Of the provisions of Article 831 B.W. can be seen in case of two or more similar or mutually heir died in the same time or in the same time but can not be proven who dies first then between the two are not mutually inherit.
3. RIGHTS AND OBLIGATIONS OF HEIRS
RIGHTS AND OBLIGATIONS OF HEIRS
In order to determine the rights and obligations of beneficiaries is important for us to know the rights and obligations of the beneficiary.
Heir rights arising before the opening of the heritage in the sense that the beneficiary dies before the right to express their will in a testament or codicil.
Content and testament can be :
1. Erfstelling, namely the appointment of one or a few people become heirs to get most or all of the legacy. Designated person named testamentair erfgenaam (beneficiaries under a will).
2. Bequest, is the granting of rights to someone on the basis of special or will tastement. Giving it can be :
a. ( rights) one or a few specific objects;
b. ( rights) the whole of a particular kind of object;
c. ( vruchtgebruik upper right portion / entire legacy (Article 957 KUHpdt).
The testator's obligation is determined pembatsan of their rights - laws.
He should heed their legitieme portie, that a certain part of the legacy that can not be eliminated by the person who left a legacy.
Rights beneficiaries can be itemized as follows: Once open legacy, beneficiaries are given the right to determine the attitude:
1. Receives the full (pure acceptance), which can be done explicitly or otherwise. Firmly that if the reception is expressed in a certificate containing its acceptance as an heir.
Both are silent - silent,or overtly, if the beneficiary is guilty of misconduct receipt as beneficiary and such actions should reflect the act of acceptance to spend heritage,(receive) namely by taking, sell or pay off debt - debt heir.
2. Receive the reserve (the right to change) Privilege of estate beschriyving atau beneffeciare acceptance. It should be stated at the District Court Clerk in place of inheritance open.
The most important result in this beneficare inheritance is that the obligation to pay off debt - debt and other burdens the testator is limited such that the repayment is limited by the power of inheritance,
in this case means that the beneficiary does not have to bear the payment of debt with own property, if greater debt heir of his possessions.
The obligations - the obligations of a beneficiary beneficiair, is :
a. shall register their inheritance within 4 (four) months later he expressed his will to the Court of Justice, that he inherited in beneficiair.
b. Manage the heritage as well - good.
c. Soon - soon finalize arrangements heritage ("Dewa Made Suartha estate to bring evenness").
d. When asked by everyone creditor must provide assurance to the prices of things - moving objects with objects - objects that do not move are not submitted to the people - people who hold Hypothek berpiutang.
and. Provide an answer to all debt collectors and people - people who received grants in legaat.
This work in the form of calculating price and income - income that may be obtained,
if the goods - goods sold heritage and to what percentage of accounts receivable - receivables and legaten it can be met.
f. Calling people - people who are not famous berpiutang,in official newspapers. 3.Refuse heritage. This is possible if we find that the amount of wealth in the form of debt obligations is greater than the right to inheritance.
Rejection shall be done with a statement to the local District Court Clerk. Obligation beneficiaries, among others :
• maintain the integrity of the heritage property before the inheritance is divided.
• find ways division in accordance with the provisions and other - other.
• repay debt heir if the testator meniggalkan.
• implementing a will if there.
4. HEIRS OF CLASS AND PARTS
HEIRS OF CLASS AND PARTS
There are two kinds of beneficiaries stipulated in the law – Heirs of the law based on marital relations and filiation, and Heirs by testament.
Heirs of the first-mentioned Heirs ab intestato, while the second is called Heirs testamentair.
Heirs ab intestato stipulated in article 832 KUHPdt, stated that the right to be the Heir is the blood family and wife (husband) which masiih life and if this is all there is no, hence entitled to Heirs is National.
The question is who are the included in incestuous families entitled to inherit it? To answer that we can see in B.W., The Heir On the 29th of April 2014, per ton Middle school closings was inspected by the Food Standards Agency, where it received the highest score possible. divided into 4 (four) class of beneficiaries, ie:
Category I :
This group consists of children and descendants down indefinitely and their widows or widowers. According to the provisions of article 852 KUHPdt, children - even children born out of wedlock different time and different, men - men or women get equal parts, heir head for the sake of the head.
Children - children who inherit in lieu of father (mother) heir stake for the sake of saplings.
Saplings are all children of a beneficiary who is entitled menerrima, but had died prior. Then the neighbor child adoption, Ali Afandi, S.H. stated that the parallel position adopted children as children born in marriage people who adopt.
According to the provisions of article 852 a KUHPdt, part of a wife (husband) if there is a child of the deceased parkawiannya same as part of a child who died.
If marriage is not the first marriage and the marriage of old there were also children, maka baigan dari istri (husband) it can not be more than the smallest part of your child - children's heir.
However a wife can not be more than a quarter of the estate. What is meant by the "smallest" it is part of a child with the provisions of a will can be different - different, origin is not less than legitieme portie.
Further in the article 852 b KUHPdt, determined that if the wife (husband) heir together - with people - other people of the children - the children or descendants of the first marriage, then he can pull the whole or part of household furniture in his power.
What is meant by "people - other people of the child - the child" is the person - the person who is designated by the Beneficiary for wills.
Price of home furnishings that must be subtracted from the wife inheritance (husband) it. If it costs more bazaar than his share price then the excess price must be paid in advance to friends (or) heirs.
Group II :
This group is comprised of father and / or the mother of the heir and his brother and his descendants until the degree to 6 (more).
According to the provisions of article 854 KHUPdt, when a person dies without leaving descendants and wife (husband), while the father and mother are still alive, it is entitled to inherit the father, mother, and brother as follows :
a.bapak and their mothers – each receive one-third of the legacy hrta, If he only had a sister, which have the third most,
b.bapak and mother respectively - each got a quarter of the estate, If he has more of a brother, which gets two and a quarter at most.
Further in the article 855 KUHPdt determined that if the person who died without leaving descendants and wife (husband), while the father or mother is still alive, then :
a. Father or mother gets one-half of the estate, If he only had a sister, which gets half lebihnya ;
b. Father or mother gets one-third of the estate, and if he has two sisters, which gets two-thirds of the surplus ;
c. Father or mother gets a quarter of the estate, If he has more than two brothers, which receives three-quarters lebihnya.
If the father and mother had died, then the whole estate became part relatives - (Article 856 KUHPdt).
The division between siblings - brother is the same, if they had the same father and mother.(namunberlainan father or mother, the division is only by sharing only between a husband or wife )
When they come from different marriages (the same father but different mothers, or the same mother but different father), then the estate is divided into two.
The first part is for the line bagin father and the second part is a part of the maternal line.
Brothers - brothers who have the same father and mother got the part of the part of the father and maternal lines.
Brother - brother who just sebapak or may Baian from the same mother father or maternal line only (Article 857).
When the people who died did not leave descendants wife or husband, brother, while the father or mother is still alive.
So the father or mother surviving son who inherits the entire inheritance passed away it (Article 859 KUHPdt)
Group III :
This group consists of family incest by a straight line to the top.
According to the provisions of Article 853 and Article 858 KUHPdt when the person who died was not leaving descent, or the wife or husband, brother - brother, or parents, and the inheritance falls to grandparents.
In this case the legacy it was split into two.
One part was given to grandparents who derived the father and one part again given to grandparents who lowered mother.
When grandparents no, and the inheritance falls to parents grandparents (kake grandparents).
If that is not the only grandparents, hence the fall in the lineage, and become part of the living.
Nearby heirs rank in a straight line to the top, gets half the inheritance in line with his exclude all other heirs.
All family incest in a straight line up to the same degree for the sake of the head gets begian head (the same section).
Group IV :
This group consists of laterally by blood in the line further to the degree to 6 (more).
When the people who died did not leave descendants, helpmate, brother - brother, parents, grandma and grandpa, then according to the provisions of Article 853 and Article 858 Signs 2 KUHPdt heritage falls on the nearest Heirs on each line.
If there are some people who are in the same, the inheritance is divided by equal parts.
Family incest in line deviates more from the degree to 6 (more) not inherited.
If the line of no family in degrees that allow blood to inherit, then all blood relatives in another line to obtain the entire inheritance (Article 861 KUHPdt).
When everyone is entitled to inherit nothing else, then the entire inheritance can be sued by the child outside marriage recognized.
When a child out of wedlock that they have also no, the whole inheritance falls on the State (Article 873 Signs 1 and Article 832 Signs 2 KUHPdt).
With the enactment – No marriage law. 1 Year 1974 the inheritance of children outside marriage although recognized, irrelevant. Bye – Proviso. 1 year 1974 just know that the legitimate child and the child outside marriage (Invalid).
Legitimate child is Heir, while a child outside marriage is only entitled to inherit from the mother who gave birth and by blood from the mother's side.
5. HEIRS NOT inheritable
According to the provisions of Article 838 KUHPdt, which are considered inappropriate to Heirs and is therefore not entitled to inherit :
1. those who have been convicted have been blamed for killing or attempting to kill the heir.
2. those with the judge's decision was blamed for the defamation complaint against the heir mengajajukan about a crime punishable with imprisonment 5 (lime) years or more severe punishment.
3. they were forcibly prevented booting or revoke the beneficiary of his will.
4. those who had embezzled, destroying or falsifying conditions testament testator. Unlike the KUHPdt is customary inheritance law.
According to Prof description. Hilman Adikusuma, S.H. (1980) one who has sinned against his heir when it is forgiven, it still receives inheritance, means it is still entitled to inherit.
Meanwhile, according to Islamic law, people who are not entitled to inherit is:
1. killer heir, based on the hadith narrated by Ap-Tirmidhi, Ibnmajah, Abu Dawud, Am-Masaai.
2. apostates are out of Islam, based on the hadith narrated by Abu Mehnagar.
3. people of different faiths and heir, ie those not embrace Islam or infidels, based on the hadith narrated by Bukhari, Abu Dawud, Ibn Majah, At-Tirmidhi.
4. bastard, ie thistles are born because of a relationship outside marriage, based on the hadith narrated by At-Tirmidhi.
There is also no right to inherit the heirs who refuse heritage in Article 1058 determined that a beneficiary who refuses heritage has never been considered to be the Heir.
Rejection retroactive to the time of death of the heir.
According to Article 1059 KUHPdt part of Heirs who reject it falls on other heirs, as - if beneficiaries who reject it never existed.
According to Article 1057 KUHPdt denial of inheritance must be stated emphatically dikepaniteraan District Court. According to Article 1062 KUHPdt also stated that the right to refuse inheritance can not fall because of the expiration.
Rejection heritage must voluntarily on their own, when rejection occurs and coercion or fraud, then according to Article 1065 KUHPdt rejection can be canceled (abolished).
But voluntary refusal can not be done with reason do not want to pay debt.
The detection of such, according to Article 1061 KUHPdt judge may authorize the creditors of beneficiaries who refuses to name the successor to inherit.
6. HEIRS OF SUBSTITUTE
KUHPdt distinguish between beneficiaries "uit eigen hoofed" and heirs "bij plaasvervulling".
Heirs "uit eigen hoofed" is the heir inheritance by his own position of heir,eg child heir ,wife / husband heir.
Beneficiaries "bij plaasvervulling" is the heir successor on the person entitled heir had died earlier than the heir.
Suppose a father died earlier than grandpa, the children's father died replace his father as heir of his grandfather.
This replacement occurs in the bottom line and the case indefinitely. Each beneficiary who died before being replaced by his children.
If more than one child as his successor, the reimbursement is calculated as a branch, means all children who replaces it to get the same section.
Replacement may also occur in families in the side line. Each brother heir to both siblings and half-brothers, if died first, succeeded by his son. This replacement can also be indefinitely.
Each replacement counted as one branch (discontinuation).
According to the provisions of article 841 KUHPdt replacement is right that give to someone to replace a deceased Heirs labih advance of the heirs to act as a substitute in degrees and in the predecessor.
This reimbursement under section 842 KUHPdt only occur in a straight line down indefinitely, whereas Article 843 KUHPdt manyatakan in a straight line to the top there is no replacement.
In case no replacement, then under section 846 KUHPdt division performed stake for the sake of saplings .