Usufruct – What is it?

Fiscal and legal advice from Webster Asesores

Dear Sir,

My father recently passed away. In his Will he left the car, the money in the bank and the usufruct of the house to his second wife – our stepmother.

My brother and I have been left the ‘nuda Propiedad’ of the house.

We would like to know what are the implications of this.

ANSWER

This situation is quite normal. It is usually done like this in order to safeguard that the children will inherit and at the same time, ensuring that ones´ spouse or partner has somewhere to live during their lifetime.

The word usufruct comes for the Latin, meaning ‘use of the fruit’. In respect of a house, the fruit is either its use and enjoyment, or the rental income it may provide.

The usufruct can be limited in time or it can be for life (vitalicio). Usually, but not always, in Wills the usufruct is for life and will be written usufructo vitalicio.

If this is the case, your stepmother will be inheriting the life interest of the property, and you and your brother will inherit what is called the bricks and mortar. Your stepmother will have the exclusive use of the house during her lifetime. You and your brother will effectively own it, but will not be able to use it unless you are invited by your stepmother.

Any utilities, local taxes, national taxes, etc and other expenses of owning a property will be the responsibility of the person holding the usufruct, the same as any maintenance work that may be necessary on the property.

The usufruct cannot be passed on to a third party, as it is a personal right bequeathed to your stepmother. Once she dies, the usufruct will extinguish itself and you and your brother will then become the full owners.

In order to register this in the Land registry, you will need an original death certificate and a new deed will be granted to reflect the death and the extinguishing of the life usufruct.

If she decides, for whatever reason, to leave the property definitely and to live somewhere else, she can always renounce the usufruct. This also has to be done by means of a new deed to be signed in the presence of the Notary and then presented to the Land Registry for registration. You and your brother will then become the full owners of the property.

You can also negotiate a price for the usufruct. It is possible that your stepmother may require some funds and you and your brother can arrange a purchase of her rights.

Please remember that the only way that you can ensure that the persons you wish to inherit your assets is by making a Spanish Will. Nothing seems to ever happen until it does, and then it is too late to arrange for the signing of your Will. A British Will can be used in Spain, but it can become expensive and complicated, as many documents will have to be officially translated and legalized prior to their use in Spain.