Can the inherited house be sold if the mother has the usufruct?

Question

José Manuel Alburquerque · Accepted Answer

Yes, if the mother and the children agree and they all sign. Without the mother, the children can only sell the bare ownership, which is the house without the right to use it while she is alive. Few buyers want it and they pay little for it. The mother on her own can only sell her usufruct. Nobody can force her to sell. The price is divided according to the value of each right, which depends on the mother's age. How the price is divided The table from the “impuesto de sucesiones”, the Spanish inheritance tax, is used. If the usufruct is for life, it is worth a percentage of the price equal to 89 minus the mother's age on the day of the sale, with a minimum of 10 %. The rest belongs to the children. For example, if the mother is 75 and the house is sold for 300.000 euros, she is entitled to 42.000 and the children to 258.000. If it is divided in any other way, the tax authorities may treat the difference as a gift. If the mother also owns part of the house, that part of the price is hers alone. The table applies to the rest. Taxes Each of them pays income tax on the gain from what they sell. For the children, this is what they receive minus the value declared for their bare ownership when they inherited and the expenses and taxes they paid on it. The mother declares what she receives minus the value given to her usufruct when she inherited. She may make no gain at all. The tax authorities do not allow her the exemption for people over 65 who sell their principal residence, because she is only selling the usufruct. She can, however, apply it to the part of the house that is hers. In Catalonia, anyone who applied the 95 % allowance for the deceased's home and sells within five years of the death must pay back what they saved, with interest. They do not have to pay it back if, within six months, they use the money to buy their principal residence or to pay off the mortgage used to buy it. Each of them pays the “plusvalía municipal”, the municipal capital gains tax, on the part they sell, including the mother. If they wait until the mother dies, when they recover the usufruct they may have to pay inheritance tax on the part they did not pay when they inherited. Sometimes this is little or nothing. If they all sell together beforehand and each receives their share, that payment does not arise. If there is no agreement The mother can go on living in the house or let it and collect the rent for as long as she lives. The children cannot force her to sell.