Responsibility of the Heirs for the Submission of Notary Protocol

Dinda Suryo Febyanti¹, Fanny Tanuwijaya², Bhim Prakoso³, Firman Floranta Adonara⁴

^1,2,3,4 The Masters of Notary Study Program, Faculty of Law, University of Jember

ABSTRACT: The legal responsibilities of heirs in submitting and storing notary protocols by heirs are complex because they involve various parties, procedures and legal regulations that must be obeyed. Heirs as recipients of the notary protocol have the responsibility to carry out this process in accordance with applicable legal provisions. considering vital documents that record legal actions and written evidence regarding the distribution of inherited assets. Based on this, this study discusses the legal certainty of the position of heirs to the notary protocol in the legal framework in Indonesia, as well as its comparison with regulations in the Netherlands. The research method used is normative legal research with conceptual, statutory and comparative approaches. The results of the study show that the responsibility of the heirs for submitting notary protocols plays an important role in maintaining the continuity of notary practice and providing legal certainty for parties involved in legal actions involving a notary. Although UUJN does not explicitly regulate the obligations of heirs, based on the provisions of UUJN, heirs have a legal obligation to notify the Notary Supervisory Board regarding the death of a notary and submit a notary protocol to the notary receiving the protocol. The main difference between Indonesia and the Netherlands lies in the role of a Junior Notary or Deputy Notary in the Netherlands, who takes over the duties and responsibilities of a deceased notary, eliminating the direct involvement of the heirs in submitting the notary protocol. In Indonesia, the existence of heirs is still important because there is no role for Junior Notaries or Deputy Notaries. However, there is legal ambiguity regarding sanctions for heirs who do not report the death of a notary or do not submit a notary’s protocol, so it is necessary to update the UUJN to provide clarity on this matter.

KEYWORDS: Legal Responsibility, Heirs, Submission of Notary Protocols, Regional Supervisory Council

INTRODUCTION

Notary as a legal profession, in carrying out his position has a function to stabilize the wishes of the parties in making agreements. Meanwhile, the Notary in carrying out his authority is based on the attribution authority as stipulated in the Law of the Republic of Indonesia Number 2 of 2014 concerning Amendments to Law Number 30 of 2004 concerning the Position of Notary. The notary as a public official who is authorized to make authentic deeds, is burdened with responsibility for what he has done, while the responsibility of the notary as a public official relates to material truth, which is then divided into four forms, namely :[1]

1. Civil responsibility for the material truth of the deed he made;
2. The notary’s criminal responsibility for material truth in the deed he made;
3. The notary’s responsibility based on the Notary’s Position Regulations for the material truth in the deed he made;
4. The responsibility of a Notary in carrying out his duties and positions is based on the Notary’s Code of Ethics

Notaries have a legal obligation to record all the deeds they have made and to fill in the book of lists of deeds without blanks every day and every month closed with a red line, as stipulated in Article 58 paragraph (2) UUJN. As the provisions of Article 16 paragraph (1) letter b UUJN state that in carrying out his position, a Notary is obliged to make a deed in the form of Minutes of Deed and keep it as part of the Notary Protocol. [2] Minuta Deed as the original document of the deed which includes the signatures of the appearers, witnesses, and the Notary, which is kept as part of the Notary Protocol.

A notary protocol is a collection of documents which are state archives that must be kept and maintained by a notary in accordance with statutory provisions, namely Article 1 number (13) UUJN. The obligation to keep the Notary’s protocol does not only apply as long as the Notary is still alive, but also applies if the Notary concerned dies, based on the Law it requires that the Notary’s protocol be kept by transferring the Notary’s protocol to another Notary. [3]

The notary’s responsibility in maintaining and storing the protocol does not only apply to himself, but also applies to the heirs if the notary concerned dies. In this case, the heirs have the obligation to submit the Notary protocol in accordance with the provisions stipulated in Article 35 Paragraph 1 UUJN, which states that if the Notary dies, the husband/wife or blood relatives in the straight line of descent to the second degree must notify the MPD . The notification as referred to in paragraph (1) must be delivered within a maximum of 7 (seven) working days.

If the Notary dies while on leave, the duties of the Notary’s position will be carried out by a Substitute Notary as a Notary Temporary Officer, which is valid for a maximum of 30 (thirty) days from the date the Notary dies. The Acting Notary Public is obliged to submit the Notary Protocol from the Notary who passed away to the MPD within a maximum period of 60 (sixty) days from the date the Notary passed away. Notary Temporary Officer, as referred to in paragraph (3) and paragraph (4), has the right to make Deeds in his own name and has a Notary Protocol.[4]

Submission and storage of notary protocols by heirs becomes complex because it involves various parties, procedures and legal regulations that must be obeyed. Heirs as recipients of the notary protocol have the responsibility to carry out this process in accordance with applicable legal provisions.[5] They are required to notify the Regional Supervisory Council if the notary concerned dies or resigns from his position. Even though the rules and procedures for submission of notary protocols have been regulated in Article 62 UUJN, their implementation still poses challenges.

Many factors can affect this process, such as the heirs’ unfamiliarity with legal procedures, delays in carrying out the process, or other administrative problems. In addition, there are also practical issues such as finding a legal heir, especially if there is no clear inheritance plan beforehand. When the process of submitting and storing the notary’s protocol does not go well, this can create legal uncertainty and disrupt the continuity of the duties of the notary concerned.

Submission of the notary protocol must be followed by making minutes of submission of the notary protocol which is signed by the party submitting the protocol and also approved by the recipient of the protocol. [6] Documentation in the form of minutes of this event is formal evidence that the submission of the notary protocol has been carried out legally and in accordance with legal provisions. The process of submitting this notary protocol has an important goal, namely to maintain the continuity of the notary’s work and ensure that the documents that are part of the protocol are protected and remain available to people who need them.

Based on the provisions in Article 63 paragraph (1) UUJN mentioned above, it expressly stipulates that the Notary Protocol must be kept and guarded by the heirs, and if the Notary in question dies, the heirs must immediately submit the Notary Protocol to the MPD to then take action in accordance with the provisions of the legislation. so that the submission of the notary protocol is also an important step in protecting the rights and interests of the parties related to the deeds that have been made by the notary.

The notary protocol is a vital document that records legal actions and written evidence regarding the division of inheritance. Although the notary protocol has an important role in the inheritance process, the position of the heir to the notary protocol in the legal framework in Indonesia still faces several problems. One issue that stands out is the lack of legal certainty regarding the rights and obligations of the heirs to the notary protocol. This is a serious problem because it can lead to potential ambiguity and conflict between heirs in dealing with the process of dividing the inheritance.[7]

Legal uncertainty regarding the responsibilities of heirs to notary protocols causes legal loopholes that can be exploited by irresponsible parties. The heirs may face difficulties in knowing what they should do regarding the notarized protocol after the death of the testator. In addition, this problem can also have an impact on the rights of other parties with an interest in the distribution of inherited assets.

Therefore, what are the efforts to overcome the issue of legal certainty related to the position of the heir to the notary protocol. Reviewing and updating the UUJN, bearing in mind that it provides clarity regarding the rights and obligations of heirs to the notary protocol. In the process, it is also necessary to involve participation and better understanding from the community and heirs about the importance of submitting and managing notary protocols after the death of the heir.

As an example of a case that occurred in Malang Regency, namely Notary X with a working area in Malang Regency died, while the chronology of the case begins with the Notary concerned when his term of office has ended, the retired Notary concerned did not submit the protocol immediately. The MPD as the supervisor has also given a warning, but the Notary did not heed the warning from the MPD on the grounds that the child of the retired Notary will continue and care for the protocol, until one day the retired Notary died, but after it was discovered that the child of the heir was still holds a Strata-1 education in law because the heirs’ ignorance regarding the submission of the protocol is known until now the protocol is still at the residence of the deceased, so those who carry out the process of transferring or submitting the protocol are carried out by the heirs and assisted by the MPD in the area to complete the implementation protocol submission. This provision clearly shows that there is a void in the norms associated with the case. The norm vacuum referred to is the existence of uncertainty in terms of sanctions that should be given to heirs because of their negligence.[8]

Based on the description above, the focus of the problems that will be examined in this article are: 1). How is the legal certainty of the position of the heir to the notary protocol in the legal framework in Indonesia? and 2). How does the comparison of heirs to notary protocols between Indonesia and the Netherlands?

METHODOLOGY

Legal research is conducted to find solutions to legal issues that arise. The result achieved is to provide a prescription regarding what should be the issue raised. This research method is a normative research method. This research is done by analyzing various formal legal regulations that contain theoretical concepts and are related to the issues discussed.[9] The approach used in writing this thesis is: a). Conceptual Approach, an approach method with reference to legal principles, which can be found in the views of scholars or legal doctrines. b). Statute Approach, carried out by examining all laws and regulations related to the legal issues being handled. Researchers want to understand the hierarchy and principles in laws and regulations regarding the procedure for submitting notary protocols by heirs based on UUJN, c). Comparative Approach, a comparative approach is carried out by conducting a comparative study of law. In this study, we compare notaries in Indonesia with the Netherlands.

DISCUSSION

1. Legal Certainty of Heirs’ Position Against Notary Protocols in the Legal Framework in Indonesia

The position of heirs has an important urgency for saving, storing and submitting notary protocols because notary protocols are valid evidence of legal actions and legal relations carried out by the parties before the notary who has passed away. Therefore, the heirs have an urgent position in saving, storing and then reporting to the MPD to submit the protocol to other notary partners. The definition of an heir is a party entitled to receive the rights, obligations, and inheritance of someone who has died. The Notary Protocol based on the norms stipulated in UUJN is a state document that contains a track record of the occurrence of legal relations by the parties constituting a Notary who died while carrying out his functions and authority.

Notary protocols contain notes regarding legal actions carried out before a notary, such as bound minutes, reportorium, list of ratification of private documents, list of protest deeds and so on made by a notary. Based on this, this issue will explain the responsibility of the heirs for submission of notary protocols as part of the aspect of the legal obligations of the heirs to fulfill the interests of the heir who has died. Furthermore, this research will also analyze cases of heirs who do not fulfill their legal notification obligations.

The expert’s responsibility for submitting the notary protocol plays an important role, although the heir’s responsibility for the notary’s protocol is not regulated concretely in civil law. However, based on the UUJN notary, the heirs have a legal obligation to notify the MPD regarding the death of the notary, as stipulated in the provisions of Article 35 paragraph (1) UUJN. Thus, in the case of the absence of an heir, the state is only obliged to pay the debts of the heir as long as the inherited assets are sufficient, and the state cannot automatically transfer the rights and obligations of the heir. However, the transfer or transfer process must go through a judge’s decision. [10]

The legal position of the heirs of the notary as stipulated in the provisions of Article 35 paragraph (1) UUJN requires the heirs to notify the MPD regarding the death of the notary. Thus, as the heir of the notary, the heir takes over the position and responsibility of the notary who has passed away. This means that the heirs not only inherit the notary’s assets included in the inheritance, but also accept the responsibilities and obligations related to the notary’s profession that have been carried out by a notary before. Responsibility for submission of notary protocols and documents produced by a notary is an important aspect in carrying out their role as heirs of a notary.

Based on the provisions of Article 63 paragraph (2) UUJN, the responsibility of the notary’s heirs when the notary dies is to submit the notary protocol to another notary appointed by the MPD. These provisions regulate the submission of the Notary Protocol by the Notary’s heirs to another Notary appointed by the MPD in a situation when a notary dies. This article positions the responsibility of the heir as the heir of a notary who has passed away. Heirs have important and strategic responsibilities. This responsibility relates to maintaining the continuity and continuity of notary practice and ensuring the accessibility and security of the documents contained in the Notary Protocol.[11]

The responsibility of the heirs in maintaining the continuity of notary practice is very important. Submission of the Notary Protocol to a Notary who has just been appointed by the MPD is an important step in maintaining the continuity of notary practice. The Notary Protocol contains documents related to legal actions and written evidence which are an integral part of the duties and responsibilities of a notary. The heirs in submitting the Notary Protocol help ensure that the interests of related parties can continue without hindrance. The responsibilities of the heirs also include ensuring the accessibility and security of documents related to the Notary Protocol.[12]

These documents must remain easily accessible to interested parties, such as rights owners, parties involved in legal actions, or authorized government agencies. [13] The heirs are also responsible for maintaining the security of these documents and protecting them from unauthorized access or misuse. The responsibility of the heirs in submitting the Notary Protocol to the new Notary is in line with the MPD’s role in supervising and managing notary activities in the area. MPD has the authority to appoint a new notary who will continue the notary practice of a notary who has passed away.

So that the heirs act as an extension of the Notary who passed away in carrying out the submission of the Notary Protocol to the newly appointed Notary. This task is important to ensure the continuity of notary practice in the region, as well as to maintain the accessibility and security of the documents contained in the Notary Protocol. The heirs have the responsibility as executors of submission of the Notary Protocol.[14] They must carry out the submission process carefully and in accordance with applicable legal provisions.[15]

The physical transfer of the Notarial Protocol to a new Notary and conveying relevant information and data regarding the Notary Protocol to the new appointed Notary is part of the responsibility of the heirs. This process needs to work closely with the MPD and the newly appointed Notary, as well as establish good communication to ensure the submission process runs smoothly and efficiently, as well as comply with all procedures and requirements in submitting the notary protocol by heirs to another notary appointed by the MPD.

Notary protocols have an important role in providing legal certainty and written evidence in legal actions involving a notary. Because the notary protocol provides legal certainty and written evidence in legal actions involving a notary which includes details of the transaction, the identity of the parties involved, the time and place of the transaction, and the signatures of the parties concerned. This record is strong and reliable written evidence of the existence and content of the agreement or legal action taken. Notary protocols help achieve transparency, fairness and security.[16]

Legal ambiguity regarding the responsibilities of heirs in submitting notary protocols in Indonesia. Even so, the actions of the heirs who do not submit the notary protocol can have negative legal consequences. The notary protocol, as stipulated in the provisions of Article 1 point 3 UUJN, is a collection of documents that constitute a state archive and must be kept and maintained by a notary. Documents in the notary protocol, such as agreements, deeds, confessions, and other legal actions, have the power of proof in court or legal dispute resolution.

When heirs do not submit notary protocols, this can hinder the ability of interested parties to access relevant evidence, thereby affecting legal proceedings involving legal actions recorded in the notary protocol. The aspect of the notary protocol is not the personal document of the notary as the heir, but is owned by the state and must be stored and maintained by the notary in accordance with statutory provisions. Therefore, it is important to submit a notary protocol to ensure who has the authority to issue a copy of the deed, excerpts of the deed, and/or grosse deed when a notary retires from his term of office. [17]

However, legal uncertainty regarding arrangements regarding notary protocols still exists, because the laws and regulations do not yet clearly and specifically regulate the responsibilities of heirs in submitting notary protocols. This can lead to ambiguity in the understanding and implementation of the law, especially regarding the obligations of heirs in dealing with this situation. Therefore, it is necessary to have clear, detailed and detailed regulations regarding the obligations of heirs in submitting notary protocols to maintain legal certainty and provide clear guidelines for heirs in carrying out their responsibilities. [18]

These various cases show the limited authority possessed by the Supervisory Board when it comes to heirs who are not notaries. Of the several authorities possessed by the Notary Supervisory Council, both Regional, Regional and Central above, both those that do not require a Supervisory Council meeting or those that require a Supervisory Council meeting, there is no single authority from the Supervisory Council to impose sanctions on heirs who do not notify the Notary’s death. , not submitting the Notary Protocol, or even not keeping and storing the Notary Protocol properly. Based on the notary case above, it will then be analyzed regarding the legal consequences for heirs who do not submit the notary protocol.

It should also be noted that the Regional Supervisory Board and the newly appointed Notary do not have the authority to hold direct accountability to heirs who do not report the death of a notary and/or do not submit a notary protocol. The legal responsibility of the heirs in this case depends on the parties who feel aggrieved and they can file a civil lawsuit based on Article 1365 of the Civil Code.

2. Comparison of Arrangements for Heir Involvement of Indonesian and Dutch Notary Protocols

Arrangements for the responsibilities of heirs when they do not submit Notary Protocols after death will be reviewed in this study by comparing Notary law in Indonesia and the Netherlands. Notary law in the Netherlands is governed by the “Act of 3 April 1999 containing the statutory rules governing the office of notary, partly replacing the Notaries Act of 9 July 1842, Bulletin of Acts and Decrees 20, and the Act of 31 March 1847, Bulletin of Acts and Decrees 12, adopting the scales of fees of notaries and their disbursements (Notaries Act)”.

The position of a Notary based on law in the Netherlands, in the process of submitting the Notary Protocol is regulated by the Notaries Act article 15. If a notary dies, stops serving, or starts practicing outside his jurisdiction without bringing his notary protocol, the Minister has the authority to appoint another notary to take over the protocol and other notary documents. This appointment process can be carried out through a royal decree appointing a substitute notary. The newly appointed notary will assume the replacement position of the previous notary and must immediately notify the financial institution of his appointment.[19]

Notary protocols in the Netherlands must be kept in a storage location designated by the government. KNB, as a notary supervisory agency, will appoint persons in charge of data from notaries who have practice locations in the district where the repository is located. The person in charge of this data has the same responsibility as a notary in maintaining the notary’s protocol stored in the storage location. Structurally, the Minister is responsible for storing data and manuscripts until they are transferred to a centralized government storage location. [20]

In the Netherlands, the submission of the Notary Protocol does not involve the deceased notary’s heirs as parties involved in the process of transferring the Notary Protocol to a substitute notary. Junior Notaries or Deputy Notaries play an important role in this process, and they not only take over the duties and responsibilities of a deceased notary, but can also be appointed as a replacement notary with equal authority. In Indonesia, submission of the Notary Protocol is regulated in UUJN. When a notary dies, the heirs of the notary must notify the Notary Supervisory Board.[21]

The Notary Supervisory Board has the responsibility to appoint a notary receiving the protocol who will take over the duties and responsibilities related to the management of the previous notary protocol. [22] The notary protocol submission process is carried out within a maximum of 30 days and involves making minutes of submission signed by the party submitting and receiving the notary protocol.

Based on this description, the procedural difference between the Netherlands and Indonesia is the existence of a Junior Notary or Deputy Notary in the Netherlands which indirectly eliminates the involvement of heirs in submitting notary protocols. In Indonesia, heirs are still required in the process of submitting a notary protocol. Even though the obligations of heirs in submitting notary protocols are not directly regulated in UUJN, their existence is still important because there are no Junior Notaries or Deputy Notaries in Indonesia.

The heirs have the obligation to notify the Notary’s death to the Regional Notary Supervisory Board and submit the Notary’s Protocol to the Notary who receives the Notary’s Protocol. The purpose of this process is to provide legal certainty for the deed maker or the client of the notary who died so that they can get clarity and be able to take advantage of the deed made by the notary. However, cases often occur where the heirs do not report the death of the Notary or do not submit the Notary Protocol to the Notary recipient of the Notary Protocol.[23]

One of the contributing factors is the lack of socialization or notification from the Notary to the heirs regarding the importance of the Notary Protocol to be submitted to another Notary when he dies. This causes the heirs not to know about the responsibility for submitting the Notary Protocol to death or the procedures and procedures for transferring the Notary Protocol. Currently, the provisions contained in the UUJN and UUJN renewal in Law no. 2 of 2014 does not clearly state sanctions for heirs who do not report the Notary’s death to MPD Notary or do not submit the Notary Protocol to the Notary recipient of the Protocol.

Although the renewal stipulates that the MPD Notary has the right to take the Notary Protocol if it is not submitted within a maximum of 30 days, the role of the MPD Notary only begins when a Notary receives a report regarding the death of a Notary. MPD Notary itself is a supervisory institution, and if a report has been received but is not followed up or responds, then the MPD Notary can be held accountable.[24]

UUJN renewal which includes education and knowledge for heirs by a Notary regarding things that need to be done if a Notary dies. MPD Notary as a regional level supervisory institution must also provide education and training to the Notary’s family regarding the responsibilities of heirs as stated in UUJN if the Notary dies. In addition, it is also necessary to add regulations regarding monitoring mechanisms whether the education and knowledge process has actually been carried out by Notaries and MPD. [25] Notaries can also be supervised by MPD Notaries in accordance with the authority possessed by MPD Notaries.

The renewal of the UUJN must also include administrative sanctions for the heirs of the notary notary if they do not report the notary’s death or do not submit the notary protocol to the notary receiving the notary protocol. This renewal can be carried out by widening the scope of authority of the Notary MPD so that it can take action on individuals other than Notaries, so that the MPD Notary’s supervisory function includes the heirs of the Notary. In this case, the actions of the heirs who do not report the death of the Notary or do not submit the Notary Protocol can be considered as an unlawful act under the provisions of the Civil Code. This action can cause losses to the parties making the deed or the client of the Notary died, so that they can be held accountable and result in compensation for the losses incurred.

CONCLUSION

The expert’s responsibility for submitting notary protocols plays an important role in maintaining the continuity of notary practice, providing legal certainty, and protecting the rights of parties involved in legal actions involving a notary, although the responsibility of heirs to notary protocols is not regulated concretely in civil law. ; UUJN notary regulates the legal obligation for heirs to notify the MPD regarding the death of a notary, so that the heirs, as heirs of a notary, take over the position and responsibilities of a notary who has passed away, including responsibility for submission of notary protocols and documents produced by a notary, and has strategic responsibility in maintaining the continuity of notary practice and ensuring the accessibility and security of documents related to the Notary Protocol, with the Notary Protocol submission process carried out in collaboration with the MPD and the newly appointed Notary, as well as complying with all procedures and requirements in submitting notary protocols, however, legal ambiguity regarding arrangements regarding notary protocols still exists, so clear, detailed and detailed regulations are needed regarding the obligations of heirs in submitting notary protocols, and the legal responsibility of heirs in this case depends on the parties parties who feel aggrieved and they can file a civil lawsuit based on Article 1365 of the Civil Code.

A comparison of Notary law in Indonesia and the Netherlands regarding the responsibilities of heirs in submitting Notary Protocols after death has been reviewed. In the Netherlands, there is an arrangement involving a Junior Notary or Deputy Notary in transferring the Notary Protocol without the direct involvement of the heirs. Meanwhile in Indonesia, the heirs are still involved in the process of submitting the Notary Protocol. Limitations on sanction arrangements in UUJN are the main problem, so reform is needed to provide legal certainty and increase awareness of heirs. In addition, it is necessary to provide education and training for heirs by MPD Notaries to understand their duties and responsibilities. This is intended so that the submission of the Notary Protocol can run smoothly and ensure the continuity of legal services that have been made by the Notary who passed away.

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[1] Habbib Adjie, Salah Kaprah Mendudukan Notaris Sebagai tergugat, (Jakarta; Media Notaris, 2008),h. 21

[2] Nawaaf Abdullah dan Munsyarif Abdul Chalim. 2017, “Kedudukan Dan Kewenangan Notaris Dalam Membuat Akta Otentik”, Vol 4 No. 4, Jurnal Akta. h. 8

[3]  Anita Afriana. Kedudukan Dan Tanggung Jawa Notaris Sebagai Pihak Dalam Penyelesaian Sengketa Perdata di Indonesia Terkait Akta Yang Dibuatnya, Jurnal Poros Hukum Padjadjaran. Vol. 1 No. 2. 2020, h. 29

[4] Zakiah Noer, Yuli Fajriyah, “Pertanggungjawaban Notaris Terhadap protokol Notaris Sebagai Arsip Negara” Jurnal Pro Hukum, Vol. 10. No. 2, h. 83

[5] Yofi Permana, “Pengaturan Penyerahan Protokol Notaris Yang Telah Meninggal Dunia dan Prakteknya Di Provinsi Sumatera Barat” Jurnal Cendekia Hukum, Vol. 5, No. 1, 2019

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