It is said that, currently, the most common will is “everything for my widow/widower”, result of the demographic, social and economic transformations that our society has suffered. But the truth is that, in Catalonia and in general for significant estates, the will is also deeply rooted, in which the children are named heirs and, wishing to guarantee the subsistence of the surviving spouse, the legacy of universal usufruct is ordered in favor of the widow/widower. This second “type” of testament will imply the existence of a usufruct over the money or investment funds, which in practice entails some problems, which we want to point out in this article. In general, whoever has the right of usufruct over an asset has the right to use and enjoy it, with the obligation to keep it, but the consumable nature of money means that the usufruct over it has some peculiarities.
In fact, the Civil Code of Catalonia contains a specific regulation applicable to the usufruct of money and investment funds. Regarding the first of them, the Catalan legislator provides it in the first section of art. 561-33 that “Usufructuaries of money are entitled to interest and other returns produced by capital.” However, the second paragraph of art. 561-33 establishes that “The usufructuaries that have provided sufficient guarantees can give the capital the destination they deem appropriate.
Otherwise, they must put the capital at interest in conditions that guarantee their integrity.” Therefore, the right of usufruct is undermined since, in the event of not providing a guarantee (of which the form or value is not specified), the usufructuary can only receive interest from bank accounts or deposits or place the money in other banking products that involve the slightest banking risk in order to guarantee their integrity.
You can already imagine the practical difficulty of controlling the correct application of this precept. But, in addition, if the bare owner is the heir of the usufructuary, it will be difficult to claim also if, at the time of accepting the inheritance, the money has already vanished. For investment funds (art. 561.34 et seq.), due to its very nature, the usufruct only has virtuality when a partial or total reimbursement of the shares occurs, which is when a possible capital gain materializes. If said reimbursement occurs before the extinction of the usufruct (which is for life), the bare owner has the obligation to reinvest in accordance with the title of the constitution or agreement of the interested parties and, in the absence of agreement, the rules of the usufruct of money. In addition, unless otherwise provided by the testator, the usufructuary, within a period of 6 months from the acceptance of the inheritance, has the right to demand from the bare owner that they guarantee a yield equivalent to that of a usufruct of money for a capital equal to the value of the fund at the time the option is exercised. But if it is already somewhat difficult to understand legal regulations, it is even more difficult to understand banking practice. From my experience, there are some banks that directly attribute a balance to the usufructuary equivalent to the fiscal value of the usufruct (which has nothing to do with the returns to which it would be entitled) and the remaining balance to the bare owner, other banks that attribute the power of disposition directly to the usufructuary; or sometimes they even put, for example, the checking account under the indistinct ownership of the usufructuary and the bare owner. Furthermore, it is also very common to observe that different branches of the same bank do different things.
You can already imagine the practical difficulty of controlling the correct application of this precept. But, in addition, if the bare owner is the heir of the usufructuary, it will be difficult to claim also if, at the time of accepting the inheritance, the money has already vanished. For investment funds (art. 561.34 et seq.), due to its very nature, the usufruct only has virtuality when a partial or total reimbursement of the shares occurs, which is when a possible capital gain materializes. If said reimbursement occurs before the extinction of the usufruct (which is for life), the bare owner has the obligation to reinvest in accordance with the title of the constitution or agreement of the interested parties and, in the absence of agreement, the rules of the usufruct of money. In addition, unless otherwise provided by the testator, the usufructuary, within a period of 6 months from the acceptance of the inheritance, has the right to demand from the bare owner that they guarantee a yield equivalent to that of a usufruct of money for a capital equal to the value of the fund at the time the option is exercised. But if it is already somewhat difficult to understand legal regulations, it is even more difficult to understand banking practice. From my experience, there are some banks that directly attribute a balance to the usufructuary equivalent to the fiscal value of the usufruct (which has nothing to do with the returns to which it would be entitled) and the remaining balance to the bare owner, other banks that attribute the power of disposition directly to the usufructuary; or sometimes they even put, for example, the checking account under the indistinct ownership of the usufructuary and the bare owner. Furthermore, it is also very common to observe that different branches of the same bank do different things.
For all of the above, in my opinion, if you want to guarantee the subsistence of the widow/widower and it is not enough to bequeath the life usufruct of real estate or other assets, I would alternatively recommend: > Bequeath the life usufruct of all your assets, but allow the commutation of the usufruct (conversion) in an amount of money, at the option of the usufructuary himself; or > Bequeath full ownership of the amounts of money that appear in his name at the death of the testator, individually or jointly, in any banking or savings product or instrument, and lifetime usufruct of the rest of the assets. In any case, I take this opportunity to remind you that the will must always be a suit made to measure for each person, considering their specific personal, family and economic circumstances and if taxation can also be optimized for future heirs and legatees, that is always better.
