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Wills and Usufruct

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Jim's Guide - Wills and Usufruct

INTRODUCTION

You may well wonder what this guide is all about, and be tempted to ignore it. I strongly recommend that you read through it, as it could provide protection for your spouse, and save money for your inheritors.

It is common for a couple to make wills leaving all their estate to the surviving partner, trusting that the survivor will leave their estate to, e.g., the children of the couple, and this may even be written into the wills. However, there is no guarantee that the survivor will not write a new will, leaving their estate to someone whom the deceased would not have wished to inherit.

There is also a possibility that someone with property will gift that property to their children whilst they are still alive, to save the children from all the complications involved in later effecting an inheritance in Spain, on the understanding that the children will allow the parents to continue living in the house. If the partnership subsequently breaks down, that means that either the couple will have to continue living together, or one of them will be without a home. There is also the possibility that a child could fall out with the parents, and seek to evict them, or become bankrupt with the house then having to be sold to pay off the debts.

It is in my opinion much safer for a couple to retain ownership of a property, and to guarantee that the survivor has the right to continue living in a property, whilst at the same time bequeathing their estate to their preferred beneficiary. This is done by writing a will on the basis of usufruct.

OVERVIEW

Usufruct is a legal right granted to someone that confers the temporary right to use someone else's property, and also to derive income or benefit from that property.

You can leave property to e.g. your children, but at the same time give your spouse the guaranteed right to continue using the property. The surviving spouse receives a life interest (usufructo vitalicio) over assets, in most cases the family home, rather than direct ownership of the property.

The surviving spouse (usufructuary) can live in the family home for the rest of their lifetime.

They usufructuary cannot sell the property, because the children are the owners (they have 'nuda propiedad').

On the death of the usufructuary, the children 'consolidate the domicile' and become full owners (they then have 'pleno dominio').

Usufruct is virtually unheard of in the UK, but it's very common in Spain.

ADVANTAGES

  • Usufruct guarantees that your estate ultimately goes to the inheritors you wish.
  • Usufruct guarantees that your spouse retains the right to live in your property.
  • Usufruct can reduce inheritance tax, and I cover this in more detail in a later section.

LEGISLATION

Usufruct is regulated by Spanish law in chapter 1 of Title VI of the Civil Code (Articles 467-522).

PERIOD OF USUFRUCT

Usufruct can be granted for the life of the usufructuary - 'Usufructo vitalicio', or for a specified period of time - 'Usufructo temporal'.

SCOPE OF AN USUFRUCT

When making a will, you need to consider whether to grant usufruct over all your possessions, or just over certain of those possessions.

For example, you may wish to secure your spouse's right to continue using a house for the rest of their life, but leave moveable assets like money in a bank account, or a vehicle, direct to your children.

Where you elect to leave the usufruct over all your assets to e.g. your spouse, this is known as 'usufructo universal viudal' or 'usufructo universal y vitalicio'. Taking the simple example of a vehicle, that means that it would belong to your child, but your spouse would have the right to continue using it. Similarly, in the case of money or shares, that would belong to your child, but that child wouldn't have access to it until the death of the surviving spouse. Any income generated by that money or shares would belong to the survivor.

CONSTITUTION OF AN USUFRUCT

Usufruct can be constituted in two ways - voluntarily or legally.

Voluntary usufruct is when someone sells usufruct rights over a property to someone else. A contract must be prepared which, depending on the property in question, may be done legally or otherwise. A common example is when an elderly property owner sells the property to an investor. The original owner benefits from a tidy sum of money whilst retaining the right to live in the property until death. The investor gets a property at considerably less than market price, albeit he has to wait until the occupant dies before he has full ownership.

In the case of legally constituted usufructs, there is some conflict between the civil code and inheritance law, and clauses that are open to different interpretations, giving inheritors under the Spanish law of forced succession scope to contest an usufruct. To avoid any problems, it is necessary to guarantee the rights of the survivor by writing a will specifically invoking usufruct. In the case of those of us who are not of Spanish nationality, it is also necessary to specify that e.g. British laws of succession are applicable, as explained in my guide to Spanish wills.

DUTIES OF THE USUFRUCTUARY

To make an inventory of the property subject to the usufruct and to value this, describing the condition of immovable properties. Failure to comply may mean being forbidden the use of the property.

To secure the property subject to the usufruct by guaranteeing this against loss or damage by the occupant. Failure to comply may mean being forbidden the use of the property.

The need to provide a guarantee is not applicable to usufructuary parents of their children's assets, provided the surviving spouse does later marry again.

To take good care of the property subject to the usufruct.

To keep the property in repair at his own expense, i.e. meet ordinary conservation and maintenance costs.

To pay all taxes and normal running costs which arise while the property is in his possession, for example utility bills and IBI.

To notify the owner of anything needed for the property (repairs, for example in the case of real estate).

The usufructuary who sells or leases his right of usufruct to someone else will be responsible for loss or damage due to the fault or negligence of the person who replaces him.

All costs related to any lawsuits regarding the usufruct shall be borne by the usufructuary.

OBLIGATIONS OF THE OWNER (NUDO PROPIETARIO)

Make the property available to the usufructuary at the start of the usufruct.

Any costs that are imposed directly on the capital will be borne by the owner. For example, extraordinary repairs that do not count as normal wear and tear due to normal use of the property e.g., if the property needs rewiring or re-plumbing.

RIGHTS OF THE OWNER

The owner may carry out work or improvements to the property, provided that the value of the usufruct is not diminished by doing so, and provided the rights of the usufructuary are not impaired.

Mortgage the property.

EXTINCTION OF USUFRUCT

Temporary usufruct terminates at the end of the period for which usufruct was granted.

Usufruct for life terminates when the usufructuary dies.

If the usufructuary also becomes the owner. For example, this can happen if a surviving parent is the usufructuary and a child the owner, and that child then dies with a will leaving the property to the parent.

  • Due to the total loss of the property, e.g. by fire or earthquake.
  • Due to a legal ruling to this effect.
  • Due to the usufructuary renouncing his right of usufruct. See next section.

In the event that the property over which an usufructuary has no use for six years, he will lose the usufruct rights over it if the usufruct relates to movable property. In the case of real estate, the period extends up to at least ten years.

RENUNCIATION

The usufructuary has the right to voluntarily surrender the right of usufruct. This normally happens when the usufructuary sells the usufruct, either for a lump sum or in return for an annuity, by agreement with the owner. The Spanish term for this is conmutación.

However a renunciation is done, the person then taking full possession of the surrendered asset is considered to be receiving a donation, and has to pay gift tax.

INHERITANCE TAX

I'm confining this section to only those aspects of inheritance tax which are affected by usufruct. Hopefully, at some point, I will write a full guide to inheritance tax.

Anyone who inherits assets or rights in Spain is obliged to submit an inheritance tax return, irrespective of whether or not tax will be due, and also irrespective of whether they are resident or non-resident, before they can take ownership of the inheritance. In order to do this it is obviously necessary to establish a valuation of those assets or rights.

When usufruct is involved, the value of the deceased's estate is divided between the inheritor and the usufructuary, and the IHT declaration has to be from both of them, or there have to be two separate returns. This introduces one of the benefits of bequeathing usufruct, as both the inheritor and the usufructuary are entitled to the full amount of the tax-free allowance.

Another advantage of usufruct is that, because the estate value is divided between the inheritor and the usufructuary, then neither declares the full estate value. This means that either less tax is due or that no tax is due at all.

If, as many people do, you leave your estate to your spouse, that spouse will be liable for inheritance tax on the full value of your estate. On the death of the surviving spouse, the inheritors will be liable for inheritance tax on the full value of your combined estate. In other words, your estate will be liable for inheritance tax twice. If you leave your estate to your children, but grant an usufruct to your spouse, then the tax liability for your estate will only occur once.

Lifetime usufruct:

The relevant law establishes how the calculation is done, based on an approximation of how long the usufructuary will live to enjoy the usufruct. There are two means of calculation, both giving the same result.

The simplest means of explaining it is that the age of the usufructuary at the date of death of the deceased is subtracted from 89. The result is the usufructuary's percentage of the estate value for IHT purposes, but this is limited to a minimum of 10% and a maximum of 70%.

Temporary usufruct:

The usufructuary's percentage is 2% of the estate value times the number of whole years remaining of the term of the usufruct, but this is limited to a maximum of 70%. If there is less than one year remaining, then 2% is used.

The inheritor has to declare the difference between the usufructuary's percentage and 100%. For example, I was 74 when my wife died, so I had to declare 15%, and my late wife's daughter had to declare 85%.

FINAL NOTES

I've simplified this guide as much as I could, and I've confined it to only those aspects that are most likely to be applicable to those not of Spanish nationality. If I'd done a complete write up, and included how usufruct applies to Spanish nationals, the guide would have been several times the length it is now.

In my guide 'Wills for less than €60' I give details of my notary in Almoradí. I've checked with them whether or not a will invoking usufruct would be dearer than for a normal will, and they say they would not charge any extra for this.

 

Wills and Usufruct

Jim's Guide - Wills and Usufruct

INTRODUCTION

You may well wonder what this guide is all about, and be tempted to ignore it. I strongly recommend that you read through it, as it could provide protection for your spouse, and save money for your inheritors.

It is common for a couple to make wills leaving all their estate to the surviving partner, trusting that the survivor will leave their estate to, e.g., the children of the couple, and this may even be written into the wills. However, there is no guarantee that the survivor will not write a new will, leaving their estate to someone whom the deceased would not have wished to inherit.

There is also a possibility that someone with property will gift that property to their children whilst they are still alive, to save the children from all the complications involved in later effecting an inheritance in Spain, on the understanding that the children will allow the parents to continue living in the house. If the partnership subsequently breaks down, that means that either the couple will have to continue living together, or one of them will be without a home. There is also the possibility that a child could fall out with the parents, and seek to evict them, or become bankrupt with the house then having to be sold to pay off the debts.

It is in my opinion much safer for a couple to retain ownership of a property, and to guarantee that the survivor has the right to continue living in a property, whilst at the same time bequeathing their estate to their preferred beneficiary. This is done by writing a will on the basis of usufruct.

OVERVIEW

Usufruct is a legal right granted to someone that confers the temporary right to use someone else's property, and also to derive income or benefit from that property.

You can leave property to e.g. your children, but at the same time give your spouse the guaranteed right to continue using the property. The surviving spouse receives a life interest (usufructo vitalicio) over assets, in most cases the family home, rather than direct ownership of the property.

The surviving spouse (usufructuary) can live in the family home for the rest of their lifetime.

They usufructuary cannot sell the property, because the children are the owners (they have 'nuda propiedad').

On the death of the usufructuary, the children 'consolidate the domicile' and become full owners (they then have 'pleno dominio').

Usufruct is virtually unheard of in the UK, but it's very common in Spain.

ADVANTAGES

  • Usufruct guarantees that your estate ultimately goes to the inheritors you wish.
  • Usufruct guarantees that your spouse retains the right to live in your property.
  • Usufruct can reduce inheritance tax, and I cover this in more detail in a later section.

LEGISLATION

Usufruct is regulated by Spanish law in chapter 1 of Title VI of the Civil Code (Articles 467-522).

PERIOD OF USUFRUCT

Usufruct can be granted for the life of the usufructuary - 'Usufructo vitalicio', or for a specified period of time - 'Usufructo temporal'.

SCOPE OF AN USUFRUCT

When making a will, you need to consider whether to grant usufruct over all your possessions, or just over certain of those possessions.

For example, you may wish to secure your spouse's right to continue using a house for the rest of their life, but leave moveable assets like money in a bank account, or a vehicle, direct to your children.

Where you elect to leave the usufruct over all your assets to e.g. your spouse, this is known as 'usufructo universal viudal' or 'usufructo universal y vitalicio'. Taking the simple example of a vehicle, that means that it would belong to your child, but your spouse would have the right to continue using it. Similarly, in the case of money or shares, that would belong to your child, but that child wouldn't have access to it until the death of the surviving spouse. Any income generated by that money or shares would belong to the survivor.

CONSTITUTION OF AN USUFRUCT

Usufruct can be constituted in two ways - voluntarily or legally.

Voluntary usufruct is when someone sells usufruct rights over a property to someone else. A contract must be prepared which, depending on the property in question, may be done legally or otherwise. A common example is when an elderly property owner sells the property to an investor. The original owner benefits from a tidy sum of money whilst retaining the right to live in the property until death. The investor gets a property at considerably less than market price, albeit he has to wait until the occupant dies before he has full ownership.

In the case of legally constituted usufructs, there is some conflict between the civil code and inheritance law, and clauses that are open to different interpretations, giving inheritors under the Spanish law of forced succession scope to contest an usufruct. To avoid any problems, it is necessary to guarantee the rights of the survivor by writing a will specifically invoking usufruct. In the case of those of us who are not of Spanish nationality, it is also necessary to specify that e.g. British laws of succession are applicable, as explained in my guide to Spanish wills.

DUTIES OF THE USUFRUCTUARY

To make an inventory of the property subject to the usufruct and to value this, describing the condition of immovable properties. Failure to comply may mean being forbidden the use of the property.

To secure the property subject to the usufruct by guaranteeing this against loss or damage by the occupant. Failure to comply may mean being forbidden the use of the property.

The need to provide a guarantee is not applicable to usufructuary parents of their children's assets, provided the surviving spouse does later marry again.

To take good care of the property subject to the usufruct.

To keep the property in repair at his own expense, i.e. meet ordinary conservation and maintenance costs.

To pay all taxes and normal running costs which arise while the property is in his possession, for example utility bills and IBI.

To notify the owner of anything needed for the property (repairs, for example in the case of real estate).

The usufructuary who sells or leases his right of usufruct to someone else will be responsible for loss or damage due to the fault or negligence of the person who replaces him.

All costs related to any lawsuits regarding the usufruct shall be borne by the usufructuary.

OBLIGATIONS OF THE OWNER (NUDO PROPIETARIO)

Make the property available to the usufructuary at the start of the usufruct.

Any costs that are imposed directly on the capital will be borne by the owner. For example, extraordinary repairs that do not count as normal wear and tear due to normal use of the property e.g., if the property needs rewiring or re-plumbing.

RIGHTS OF THE OWNER

The owner may carry out work or improvements to the property, provided that the value of the usufruct is not diminished by doing so, and provided the rights of the usufructuary are not impaired.

Mortgage the property.

EXTINCTION OF USUFRUCT

Temporary usufruct terminates at the end of the period for which usufruct was granted.

Usufruct for life terminates when the usufructuary dies.

If the usufructuary also becomes the owner. For example, this can happen if a surviving parent is the usufructuary and a child the owner, and that child then dies with a will leaving the property to the parent.

  • Due to the total loss of the property, e.g. by fire or earthquake.
  • Due to a legal ruling to this effect.
  • Due to the usufructuary renouncing his right of usufruct. See next section.

In the event that the property over which an usufructuary has no use for six years, he will lose the usufruct rights over it if the usufruct relates to movable property. In the case of real estate, the period extends up to at least ten years.

RENUNCIATION

The usufructuary has the right to voluntarily surrender the right of usufruct. This normally happens when the usufructuary sells the usufruct, either for a lump sum or in return for an annuity, by agreement with the owner. The Spanish term for this is conmutación.

However a renunciation is done, the person then taking full possession of the surrendered asset is considered to be receiving a donation, and has to pay gift tax.

INHERITANCE TAX

I'm confining this section to only those aspects of inheritance tax which are affected by usufruct. Hopefully, at some point, I will write a full guide to inheritance tax.

Anyone who inherits assets or rights in Spain is obliged to submit an inheritance tax return, irrespective of whether or not tax will be due, and also irrespective of whether they are resident or non-resident, before they can take ownership of the inheritance. In order to do this it is obviously necessary to establish a valuation of those assets or rights.

When usufruct is involved, the value of the deceased's estate is divided between the inheritor and the usufructuary, and the IHT declaration has to be from both of them, or there have to be two separate returns. This introduces one of the benefits of bequeathing usufruct, as both the inheritor and the usufructuary are entitled to the full amount of the tax-free allowance.

Another advantage of usufruct is that, because the estate value is divided between the inheritor and the usufructuary, then neither declares the full estate value. This means that either less tax is due or that no tax is due at all.

If, as many people do, you leave your estate to your spouse, that spouse will be liable for inheritance tax on the full value of your estate. On the death of the surviving spouse, the inheritors will be liable for inheritance tax on the full value of your combined estate. In other words, your estate will be liable for inheritance tax twice. If you leave your estate to your children, but grant an usufruct to your spouse, then the tax liability for your estate will only occur once.

Lifetime usufruct:

The relevant law establishes how the calculation is done, based on an approximation of how long the usufructuary will live to enjoy the usufruct. There are two means of calculation, both giving the same result.

The simplest means of explaining it is that the age of the usufructuary at the date of death of the deceased is subtracted from 89. The result is the usufructuary's percentage of the estate value for IHT purposes, but this is limited to a minimum of 10% and a maximum of 70%.

Temporary usufruct:

The usufructuary's percentage is 2% of the estate value times the number of whole years remaining of the term of the usufruct, but this is limited to a maximum of 70%. If there is less than one year remaining, then 2% is used.

The inheritor has to declare the difference between the usufructuary's percentage and 100%. For example, I was 74 when my wife died, so I had to declare 15%, and my late wife's daughter had to declare 85%.

FINAL NOTES

I've simplified this guide as much as I could, and I've confined it to only those aspects that are most likely to be applicable to those not of Spanish nationality. If I'd done a complete write up, and included how usufruct applies to Spanish nationals, the guide would have been several times the length it is now.

In my guide 'Wills for less than €60' I give details of my notary in Almoradí. I've checked with them whether or not a will invoking usufruct would be dearer than for a normal will, and they say they would not charge any extra for this.

 

Disclaimer

While we try to ensure the guides are accurate and up to date, things change and mistakes happen, so please consider this when using the guides.

Jim, the author of the guides, is based on Costa Blanca, and so the articles are biased to that region, although in most cases they are the same or very similar for other areas.

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