Usufruct and sale of real estate | Legal aid centre

Questioner

Surviving spouse has usufruct over an apartment in which she no longer lives due to being admitted to a nursing home. Can the bare owners have her 4 children sell the apartment? If so, is the usufructuary entitled to a share of the proceeds of the sale? If so, what is her share based on?

Lawyer

Ir/Madam, I understand that there is a usufruct arrangement in the will of the person who died first. Actually, that will should be looked at to see what rules everyone has to adhere to. But in general it can be said that the bare owners (the 4 children) and the usufructuary (the surviving spouse) can only sell and deliver the apartment together. If the surviving spouse is no longer able to determine and express her will due to her diminished mental capacity, a request for the assets to be placed under administration must be submitted to the subdistrict court. Combine this immediately with the request for the sale and delivery of the apartment. Otherwise you will have to go back again. After the flat has been sold and delivered, the surviving spouse retains the usufruct (unless otherwise provided in the will). This means that the proceeds of the sale will have to be deposited in a savings account (the subdistrict court will certainly require this), after which the interest on this account will go to the surviving spouse. Only after the death of the surviving spouse can the bare owners divide the balance of the savings account among themselves. But again, the will of the person who died first may contain a different provision.