The right of usufruct is a legal figure with a long tradition and is a very common way in the different Spanish rights to pay the inheritance rights of the widowed spouse.
The usufruct is a right that attributes to its owner the power to use and enjoy a thingwith an obligation to keep it. It is something similar to owning a thing but lacking the power to sell it. This approach is very easy to understand when the usufruct falls on real estate. Thus, the usufruct of a home grants the power to use it and if you do not want to use it, to rent it, thus obtaining an income; the same happens when the right of usufruct falls on a rustic property.
The usufruct becomes problematic and difficult to understand when instead of falling on a home it falls on money, investment funds or financial products..., which generates a very recurring question in notaries, regarding the way to execute the right of usufruct.
The Civil Code of Catalonia has a regulation of the usufruct right of money, investment funds or financial products, in its articles 561-32 to 37, but the truth is that it does not solve all the casuistry that can be presented, because the interests of the parties can be very different in each case, and due to the creation of new financial products whose development does not conform to the literalness of the norm.
In a purely didactic way, we will differentiate between the usufruct of money and the usufruct of investment funds, but before that it is necessary to determine that the legal regulation is applied in the absence of a specific regulation that could have been established by the person who constituted the usufruct (the testator), or the one that results from the agreement between usufructuary and bare owner. In other words, and since we are talking about inheritance, the testator can determine how the right of usufruct is executed, or it can be agreed upon by the usufructuary (usually the widower) and the owners (usually the children), in the inheritance partition deed or later in the relations they have with the Bank in which the money is deposited or through which the investment fund has been contracted.
TO) USUFRUCT OF MONEY.
In the case of usufruct of money, the usufructuary is entitled to interest and other returns produced by the capital. Within the concept of returns, all the assumptions of bank offers can be integrated, by opening deposits such as juicers, kitchen robots, technological gadgets...
Due to the different problems they have, we will differentiate between the usufruct of money that falls on deposits or current accounts, which were already owned by the deceased, and the usufruct of metallic money that may be in the inheritance, an unusual assumption, but from experience that does not exist, since there are still people who keep money under a tile in the house or in a sock.
A.1) Usufruct of money on deposits or current accounts.
In the case of usufruct of money that falls on deposits or checking accounts, which were already owned by the deceased, what occurs is a change of ownership, the owner being the bare owner. Payment of yields to the usufructuary will be made in accordance with the instructions that have been communicated to the Bank. The most normal thing will be that there is an order that determines that the yields are entered into the account of the usufructuary, and if there is no such order, it will be the usufructuary who must claim them from the owner.
The main peculiarity of this usufruct is that the returns are understood to be received day by day, which may not be related to the form of settlement of the type of product contracted. Therefore, in the event of the death of the usufructuary, before the date of liquidation of the performance, his heirs are entitled to a proportional part thereof, during the time that the usufruct has lasted. And in the reverse case, that is, in the event that the yield has been collected in advance, and the usufructuary dies, his heirs must return to the owner the part proportional to the duration of the usufruct.
A.2) Usufruct over money metal.
In the case of usufruct on metallic money and in practice, in the same way, when it is deposited in current accounts, the money does not produce any type of return and in fact the money loses value due to the effect of monetary devaluation. For this reason, the usufructuary does not receive, in principle, any type of interest or yield, so that he is the owner of a right that does not produce any utility.
In these cases, the main question is to determine who has the initiative to choose the product in which to invest the money so that it produces interest. Despite the literalness of article 561-33.2 CCCat, the most reasonable thing is to think that the initiative corresponds to the owner, but with the limit that he must place the money in products that guarantee his integrity. It does not require the consent of the usufructuary, although it is highly advisable, and in the event that the latter does not agree with the owner's choice because it endangers his right, he would have action against him, in this case being a judge who would decide.
B.) USUFRUCT OF SHARES IN INVESTMENT FUNDS.
In accordance with the Civil Code of Catalonia, when dealing with the regulation of usufruct, two types of investment funds are differentiated: income and cumulative.
to.- income investment funds, are those in which the holders receive a return. The usufruct of these funds conforms to the scheme that we have seen regarding the usufruct of deposits, so that the usufructuary is entitled to the yield generated by the fund.
b.- Cumulative Investment Funds. They are the typical investment funds, those that respond to the scheme that everyone who has contracted a fund has internalized, in which the profitability is revealed, at the time of its sale, by the difference between the net asset values of acquisition and transfer.
In these cases, the usufructuary is entitled to the capital gains produced between the date of constitution of the right and the date of extinction or that of reimbursement, if this is requested before the extinction of the usufruct. On the other hand, the usufructuary does not have any obligation towards the owner in case of loss of the investment fund, that is to say that instead of capital gains, there are capital losses.
The condition of owner of the fund is held, in any case, by the bare owner and it is he who makes the decision, when to realize the capital gain. But, precisely, this initiative of the owner to claim or not the reimbursement of the surplus value, can cause the usufruct right to remain empty, because if it is not sold there is no surplus value.
To alleviate these undesirable consequences, the Civil Code of Catalonia, in the case of usufructs constituted by inheritance, and unless otherwise provided by the testators, allows the usufructuaries to demand from the joint owners that they guarantee a return equivalent to that of a usufruct of money for a capital equal to the value of the fund at the time of exercising the option, for which the usufructuaries must notify their option to the joint owners within six months from the acceptance of the inheritance.
And in the case of intestate usufruct in favor of the widower, he is allowed to choose to commute the universal usufruct by the attribution of a quarter aliquot of the inheritance and, in addition, the usufruct of the conjugal or family home, within a period of one year from the death of the deceased.
C.- AGREEMENTS RELATING TO THE USUFRUCT
As we have said at the beginning of the comment, the regulation of the usufruct right will be adjusted to the provisions of the testator or the agreement between the usufructuary and bare owner and only in the absence of these, the legal regulation is applied.
The truth is that in practice, testators do not usually establish rules to regulate the usufruct of money or investment funds, nor are there usually agreements between the heirs on how to regulate these usufructs in the deeds of acceptance and partition of inheritance.
Advising the testamentary regulation of the right of usufruct is very delicate, because it is not known when the will is going to be executed, so that the values or investments that the testator has at the time of making the will are totally different from those that he has at death, since his investment strategy may have changed, and funds may have been exchanged for deposits, or for other financial products. It is very common with older people to have to "convince" them of the inadvisability of bequeathing a certain checking account to a child, since they can change the account, to which they usually reply that they will not change it in life.
On the other hand, the agreement between the heirs is not very frequent, because what they really want is to be able to act each one independently of the other, and the usufruct is still a community situation, in which there must be a continuous relationship, and requires constant agreements.
For this reason, I believe that the best covenants or testamentary provisions related to the usufruct are those that allow it to be avoided.
If it is a will, I usually use a clause of this type:
Bequeath to ** full ownership of the amounts of money that at the death of the testator appear in his/her name, individually or jointly, in metallic cash, checking accounts, deposits, investment funds, or any banking or savings instrument and lifetime usufruct of the rest of his assets.
I also usually advise that the commutation of the usufruct be allowed in the will, that is, its conversion of an amount of money, which will be managed by the usufructuary as owner.
And in the case of heirs, the most reasonable is the distribution between bare owner and usufructuary, but that can raise the problems that we will discuss in the following section. In fact, this practice is recommended by the financial institutions themselves, in the documentation to manage probate. As an example, I literally copy one of the informative notes issued by BBVA:
“Contracting accounts and/or term deposits as beneficial owner or bare owner can generate operational problems, so it may be appropriate that along with the rest of the documentation required for the processing of the testamentary, a document dated and signed by the bare owner and the beneficial owner is delivered, in which they indicate the cash that each is awarded as property.”.
In any case, if you want to continue with the usufruct, as possible covenants or testamentary provisions for your regulation of the usufruct we could cite the following, by way of example only:
a) information obligations of the bare owner to the usufructuary;
b) periodic settlement obligations to the usufructuary;
c) investment criteria;
d) forecast of the payment of the surplus value in the case of extinction of the usufruct;
e) establishment of a yield for the usufructuary to be paid directly by the bare owner.
D.- VALUATION AND COMMUTATION OF USUFRUCT.
Current tax regulations provide, for tax purposes, the following usufruct valuation rule.
Value of the usufruct = 89-age of the usufructuary on the date of death of the deceased = % in freehold to be applied to the usufruct balance, with a minimum of 10% and a maximum of 70%.
Value of the bare property = 100-value of the usufruct.
Let's give an example:
Inheritance with a 70-year-old father (usufructuary) and a son (heir node-owner), and which is made up of 200,000 euros in money and funds. The value of the usufruct will be 89-70, that is to say 19% of 200,000 euros, which amounts to 38,000 euros, while the bare ownership would be valued at 162,000 euros.
The practice usually uses this usufruct valuation system when its commutation (conversion) is sought in an amount or participation in freehold. But there is nothing to prevent a different assessment criterion from being established.
However, the commutation of the usufruct may have some undesirable consequence when it is not provided for in the will or by law, and derives exclusively from the agreement between the heirs. As you can intuit this undesirable consequence is the treasury, since the tax administration has maintained the criterion that the operation to commute the usufruct if it is not provided for by the testator or by law, involves the liquidation by Inheritance Tax for the usufruct acquired and later the liquidation by patrimonial transfers due to an exchange between the usufructuary and the heirs, of the usufruct for assets in full ownership for the same value.
