Usufruct # 2

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  • #3630

    msmacc
    Participant

    As you can see, this is my first post. I lost the initial post and wasn’t able to locate it so I am posting again, hopefully correctly. Please excuse me. Thank you.

    My husband has usufruct of his late wife’s entire estate. He had an attorney explain everything to him.

    The wife died leaving a forced heir (21 at the time). The heir was helping herself to all my husband’s financial accounts without his knowledge. She had put herself on everything he had after the wife died saying it was to “help him” manage his affairs. He never checked financial statements and she knew this. She was traveling the world, literally, at his expense.

    He sold the family home and purchased another house. At the time he did so, we were married but I told him I didn’t want to be on the deed due to the legal issues – like he was to put the money into property should he sell the family home, according to the late wife’s will. The forced heir wasn’t required to sign anything and wasn’t even present when the family home was sold and new one purchased. The tax office has her name on the new property.

    I have a several questions;

    (1) Hubby gave me usufruct of his entire estate. Should he predecease me, will the forced heir be able to legally receive her share of the late wife’s estate at the time of his death, and if so, how would this be done? I’m sure she will come after it. She did not want him to have a new wife. After I saw what was happening to his money, I told him and he removed her from his accounts.

    (2) Should my husband predecease me, and since I am not on the deed, will my son, from my first marriage have the right to come into the home to retrieve my property? Is the forced heir be able to stop him? What steps can I take to make sure he can do this?

    Thank you very much.
    Regards,
    msmacc

  • #3631

    msmacc
    Participant

    “(2) Should my husband predecease me, and since I am not on the deed, will my son, from my first marriage have the right to come into the home to retrieve my property? Is the forced heir be able to stop him? What steps can I take to make sure he can do this?”

    I’m sorry once again! Egg on my face! I neglected to state that my son would retrieve my property AFTER I have died.
    Thanks

    • This reply was modified 8 months, 1 week ago by  msmacc.
  • #3634

    Bassmaster
    Participant

    This is confusing.

    For starters, we will assume that your husband owned one-half of the property outright when first wife died as his community interest and that he received a legal usufruct over the other half with the daughter automatically being the naked owner of that half. Is that correct?

    That would be the general scenario if there was no will. But there was a will which apparently made the usufruct lifetime. Absent a will, the usufruct would have terminated when he married you. Forced heir or not, the daughter would have been entitled to her mother’s estate subject to a legal usufruct without the will. The difference is that as a forced heir (because she was under age 24) she would be entitled to 25%. But as the only child of your husband (if that is the case), then she is entitled to 100% of her mother’s estate, but subject to a legal usufruct -again, without a will.

    That is one reason Lex is big on people having wills.

    Yes, the usufruct from first wife ends when your husband dies. At that time his estate must first pay the heir whatever she is due as the sole heir of her mother.

    You and your husband need to make a written declaration as to what property belongs to you. You should also both make clear what interest, if any, you have in the home. You both have the right to enter into a contract to make clear what percentage of the home belongs to each of you. Even if it is totally his at this point, he can donate enough of an interest to you so that the home, in effect, is community property. That is, you would both own one-half of the home.

    It sounds, though, as if some portion of the home belongs to his daughter as naked owner and that her naked ownership continued to the new home -perhaps as a 50% interest?

  • #3638

    msmacc
    Participant

    You said, “For starters, we will assume that your husband owned one-half of the property outright when first wife died as his community interest and that he received a legal usufruct over the other half with the daughter automatically being the naked owner of that half. Is that correct?”

    Yes, that’s correct. There was a will giving him the “disposable portion of my estate. It being my intention to give my husband the maximum amount allowed by law.” And, “I bequeath to my husband usufruct of the balance of my entire estate.” And, “I authorize the usufructuary to dispose of non-consumables without the concurrence of the naked owners; and further, I authorize the usufructuary to reinvest the proceeds from the disposables of non-consumables in replacement non-consumables that continue to be subject to the provisions of law applicable thereto.” “Subject to the foregoing and to the payment of funeral and administration expenses I give and bequeath to my daughter,____, the balance of my estate, subject to the usufruct in favor of my husband.”

    The deceased wife had two adult daughters prior to the marriage to my husband; ages thirty five and thirty six when she died.

    Now for some really confusing (to me) statements, this comes into the picture; “In the event my husband ,____, predeceases me, (This did not happen), I direct my executor to sell xxxx, pay debts, etc., and split 50% equally between (the adult children) and the remaining 50% shall go into trust for ____, (the naked owner).”

    I was taken aback when you said the naked owner was entitled to 100% of her mom’s estate which would make her an equal partner with my husband. I thought it was 12 1/2 for one heir and 25% if two or more.

    I would rather not become legally tied to my husband’s property by getting a percentage of his share of his home. I made this clear when he purchased this property. I didn’t want to be on the deed. Too much legal hassle and far too much greed on the part of his daughter. If he predeceases me, I just want to live here and get out of Dodge when I pass without leaving a mess for my son.

    Now that I’ve confused you (just kidding!), my question is; is the usufruct my husband is giving me in his will be valid? As a totally lay person, I wouldn’t think so but had to ask so that I can start preparing for the loss of my home in the event my husband passes and his will is not valid. I’m too old to be going through all this mess! I wish the attorney had informed me of the details regarding usufruct.

    Thank you very much Bassnmaster!

  • #3639

    msmacc
    Participant

    BTW He has usufruct for “life.”

  • #3648

    msmacc
    Participant

    I went to an attorney and got all the info I needed. Thanks

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