Inheritless Digital Assets: Regulatory Vacuum, Contractual
Traps, and the Urgency of Digital Wills
Authored by:
Daya Nur Pratama, S.H., M.H.
Partner at JBD Law Firm
Imagine someone passing away while holding crypto assets worth billions of rupiah, hundreds of digital content pieces generating continuous royalties, and email archives containing important business correspondence. Their heirs, who are legally entitled to the entire estate, have access to none of these assets. Not because there is no certificate of inheritance. Not because a court decree was rejected. But because encryption systems do not recognize legal hierarchies, and the electronic contracts signed by the deceased severed inheritance rights long before they passed away.
This scenario is not speculative fiction. It is a reality already experienced by thousands of families worldwide, and the likelihood of it occurring in Indonesia grows greater every day alongside the growth of the digital asset ecosystem, which is disproportionate to the development of the legal framework governing it.
This is a silent portrait of a developing legal crisis in Indonesia: the inheritance of digital assets. Amidst rapid digital economic growth, our inheritance law still rests upon the Civil Code (Kitab Undang-Undang Hukum Perdata / KUHPerdata) formulated in the 19th century, without a single article explicitly regulating the existence or transmissibility of digital assets. This article argues that the issue of digital asset inheritance is not merely a technical problem, but a normative crisis requiring an immediate legislative response; and until that response arrives, a digital will is the only legal instrument capable of bridging that gap.
I. Digital Property: Between Article 499 of the Civil Code and Economic Reality
Article 499 of the Civil Code defines property as "goods or rights that can be owned." This definition, though seemingly broad, was formulated in a physical context that did not anticipate the existence of assets manifesting as data. The question is no longer just philosophical: do crypto accounts, internet domains, or digital content portfolios qualify as zaak (objects) within the meaning of civil law?
Juridically, the answer depends on two requirements: the ability to be owned (appropriability) and having economic value. Crypto assets like Bitcoin or Ethereum clearly meet both; they can be owned exclusively through the possession of a private key, and their value is widely recognized by the market. Similarly, internet domains or YouTube accounts with millions of followers generate continuous advertising revenue.
However, problems arise when the law has not provided explicit recognition. The Law on Electronic Information and Transactions (UU ITE) recognizes electronic information as valid legal evidence but does not regulate it as an object of ownership within the framework of inheritance law. Consequently, judges or notaries faced with a petition for an inheritance decree regarding digital assets find themselves in a normative vacuum that makes them reluctant to act. This is the first manifestation of a deeper crisis.
II. Contractual Traps: When Terms of Service Override Inheritance Rights
The greatest obstacle in digital asset inheritance does not stem from a lack of legislation, but from a far more hidden instrument:The Terms of Service (ToS) or electronic contracts signed every time someone creates a digital account. This is where a legal paradox occurs.
Companies such as Meta, Google, and Apple, operating under the jurisdiction of California law in the United States, consistently include non-transferability clauses in their ToS. These clauses assert that accounts are personal and terminate upon the user's death. Normatively, such clauses can actually be challenged through two simultaneous paths.
The first path is public policy (ketertiban umum). Based on Article 1320 in conjunction with Article 1337 of the Civil Code, an agreement is void by law if its cause or content contradicts morality or public policy. If a non-transferability clause systematically negates inheritance rights—which are rights protected by national civil law—there is a strong enough argument to postulate that the clause contradicts Indonesian public policy. This question has never been tested before an Indonesian court and deserves to be raised.
The second path is consumer protection law. Article 18 paragraph (1) letter a of Law No. 8 of 1999 concerning Consumer Protection (UUPK) strictly prohibits businesses from including standard clauses that state a transfer of responsibility. However, it should be noted: a non-transferability clause is not a clause that exempts the business from the obligation to pay damages; it is a clause that defines the scope of service. Therefore, the UUPK path requires more careful legal construction: the argument must be built upon Article 18 paragraph (1) letter g of the UUPK, namely the prohibition of clauses stating the consumer's submission to regulations in the form of new, additional, follow-up, and/or further unilateral changes made by the business while the consumer utilizes the service they purchased. ToS that are periodically updated by platforms without the explicit consent of the user potentially fall into this category.
No Indonesian court decision has yet explicitly answered this question. In the United States, several states such as Delaware and Connecticut have passed the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which requires platforms to grant access to legal executors of a will. Indonesia has no equivalent. This jurisdictional clash creates an ironic situation: heirs who have obtained an inheritance decree from a district court may still be denied access by foreign platforms because those platforms are only subject to the laws of their home country. This is not a technical weakness; it is a systemic weakness that can only be overcome through bilateral agreements or firm domestic regulations.
III. Three Layers of Obstacles: Juridical, Technical, and Factual
To understand the complexity of digital asset inheritance comprehensively, it is necessary to map three layers of obstacles that work simultaneously and reinforce each other.
A. Juridical Obstacle: Normative Vacuum
Indonesian inheritance law, whether sourced from the Civil Code, Islamic Law (KHI), or Customary Law, does not specifically regulate the mechanism for inheriting digital assets. Article 830 of the Civil Code establishes that inheritance only occurs due to death, while Article 833 regulates the automatic bezit (possession) rights of heirs since the decedent passed away. Textually, this norm seems to guarantee a direct transition of property. However, bezit in the construction of the Civil Code is de facto control—the actual ability to control and enjoy an object. The technical inability to access digital assets is not merely an administrative hurdle: it is a substantial absence of bezit. An inheritance right that cannot be technically executed is a right that is practically hollow, and this is a contradiction that has not yet been resolved by our legal system.
B. Technical Obstacle: Encryption as a Legal Wall
Unlike a physical safe that can be forced open based on a court order, the Zero-Knowledge Architecture systems implemented by many modern platforms are designed such that even the service provider does not have access to the user's encryption keys. In this system, there is no master key that can be surrendered to the court. Crypto assets whose private keys are unknown will be locked forever—not as a violation of the law, but as a consequence of technological architecture.
C. Factual Obstacle: Invisibility and Transfer Speed
Digital assets are invisible. Unlike land recorded at the BPN (National Land Agency) or vehicles registered at SAMSAT, there is no public registry for crypto assets, platform accounts, or digital wallet balances. Heirs often do not even know that the deceased owned such assets. Even more dangerously, anyone with access to the decedent's primary device or email can move assets in seconds, long before the legal inheritance process begins. This is a loophole that opens the potential for asset misappropriation by third parties without leaving an easily traceable legal trail.
These three obstacles can be summarized in the following table:
IV. Digital Wills: A Preventive Solution Not Yet Understood
In the absence of comprehensive regulation, a digital will (digital estate planning) is the most realistic legal response available at this time. However, it is important to understand that a digital will is not merely a document; it is a planning system that integrates legal instruments with technical access management.
To have legal force in Indonesia, a digital will must meet the formal requirements regulated in Articles 874 to 912 of the Civil Code. A will can be made in holograph form (written entirely by the testator's hand) or in public form before a Notary. For digital assets of material value, a notarial will is the more recommended choice because it possesses stronger evidentiary power and a lower risk of dispute.
It must also be understood that a digital will does not always have to contain passwords explicitly. A safer approach is a referential approach: the will notes the existence of a separate document—for example, a document stored in a physical safe or an encrypted password manager—and specifically appoints who is authorized to access it. In this way, the confidentiality of credentials remains maintained while legal access is ensured.
An effective digital will contains at least three components: first, an inventory of assets—a complete list of accounts, platforms, and digital assets owned; second, access instructions—directions regarding the storage location of passwords or encryption keys referring to a separate document held by a trusted executor, not listed plainly within the will itself; third, the appointment of a manager—identification of the party authorized to manage or close accounts, including specific instructions regarding assets that generate continuous income, such as YouTube channels or domain portfolios.
A dimension often ignored in digital wills is assets that are simultaneously works of authorship (copyright). Based on Article 5 of Law No. 28 of 2014 concerning Copyright, the moral rights of the creator—including the right to have their name credited on the work—are non-transferable for the creator's lifetime. Unlike economic rights which can be inherited based on Article 16 paragraph (2) of the Copyright Law, moral rights do not transfer to the heirs. This means that heirs who inherit a YouTube channel or a digital content portfolio only obtain economic rights—royalties and advertising revenue—without being able to change, modify, or claim authorship of the work. A digital will that does not include a clause regarding the limitations of managing copyrighted works has the potential to trigger copyright disputes in the future.
In addition to conventional wills, several platforms have provided post-death access mechanisms that can be utilized legally: Legacy Contact from Apple and Inactive Account Manager from Google are examples that can be activated without requiring a formal legal inheritance process. These mechanisms do not replace a will, but they can work as a layer of technical-operational protection.
V. Potential Disputes and Litigation Implications
Beyond the issue of access, the inheritance of digital assets also harbors significant potential for disputes among the heirs themselves. Unlike physical assets whose existence is relatively transparent, digital assets that are not well-inventoried can become a source of prolonged and high-cost conflict.
The first scenario is unilateral control. Whoever first gains access to the decedent's device or primary email account effectively controls their entire digital asset ecosystem. They can reset passwords on financial platforms, empty crypto wallets, or transfer domains into their own name in minutes, long before other heirs realize the assets exist. Such actions potentially meet the elements of Article 378 of the Criminal Code (fraud) or Article 30 of the UU ITE (illegal access), but proving them is very difficult without adequate digital documentation.
The second scenario is the qualification of assets. In the Islamic inheritance system applicable to a large portion of the Indonesian population, inherited property must be identifiable, valued, and distributed according to faraid provisions. Crypto assets with highly volatile values pose their own problems: on what date is the value calculated? Who is authorized to perform the conversion to rupiah? All these questions have no certain normative answers yet in the Indonesian legal system.
In the context of litigation, the absence of a valid digital will will drastically weaken the position of an heir claiming rights to digital assets. Conversely, the existence of a will made in notarial form provides an authentic deed as referred to in Article 1868 of the Civil Code, which holds perfect evidentiary power before a judge. This is the difference between a claim that can be proven and a claim based only on a unilateral statement. In a dispute between heirs where all parties have equal inheritance rights, a valid digital will functions as a decisive instrument that separates the rights to certain assets based on the authentic and verifiable will of the deceased.
VI. Recommendations: From Vacuum Toward Certainty
The current condition cannot be allowed to continue. The growth of digital asset values in Indonesia continues to rise while the legal framework remains stagnant. Three concrete, complementary steps are required.
First, at the legislative level, an explicit expansion of the definition of "property" in the Civil Code is needed, or through special legislation that recognizes digital assets as objects of ownership that can be inherited. The experience of countries that have adopted RUFADAA can serve as a relevant comparative reference. In the medium term, revising the UU ITE to include provisions regarding the transmissibility of digital assets could be a faster initial step than revising the Civil Code in its entirety.
Second, at the regulatory level, the Financial Services Authority (OJK) and the Ministry of Communication need to push for a mandate for digital service providers operating in Indonesia—especially those managing assets of financial value—to comply with Indonesian inheritance court decisions, at least for users domiciled within Indonesian legal territory.
Third, at the individual level, there is no reason to wait for regulation. Every owner of digital assets with material value must immediately draft a legally valid digital will. This is the most effective and affordable preventive legal action that can be taken today.
Closing
Indonesian inheritance law was formulated for a world where objects could be held, seen, and physically handed over. That world is now only a small part of the total wealth owned by modern society. Based on the Global Crypto Adoption Index published by Chainalysis, Indonesia is consistently in the top ten countries with the highest crypto adoption rates in the world. On the other hand, the Indonesian digital content ecosystem—which includes more than 50 million active content creators across various platforms—continues to grow at a pace far beyond the ability of regulation to keep up.
This situation creates a dangerous chasm: as more wealth is stored in formats not yet legally recognized as objects of inheritance, the greater the risk that such wealth will vanish with its owner or fall into the hands of those not entitled to it. This chasm will not close on its own.
A digital will is not a transitional solution. It is a form of legal responsibility inherent to every individual who owns digital assets of material value. As long as the law has not reached digital reality, that responsibility lies in the hands of the individual, and the legal professionals who assist them to plan appropriately before it is too late.