The purpose, advantages and disadvantages of a usufruct

What is a usufruct?

A usufruct is a limited real right given by the testator/testatrix to someone (“usufructuary”) other than the person (“heir”) to whom an owned property is bequeathed. The usufructuary has the right to possession, use and enjoyment of the property, right to take the fruits thereof, for the rest of their life (or a stipulated period) but not ownership.

Upon the death of the usufructuary or end of the stipulated period, the property must be returned to the rightful heir.

Usufructs are, therefore, usually:

• Inalienable
• Uninheritable
• Short of duration

What is the purpose of a usufruct?

The purpose of a usufruct is to allow a person to enjoy/utilise another person’s property for a stipulated period of time.

During this period, the usufructuary has the right to use (fruit) the property and all the benefits that come with it.

However, the usufruct must be used for its intended purposes, and the usufructuary is legally bound to act as a diligent owner that may not misuse the property. The usufructuary is also responsible for paying any rates and taxes applicable to the property and the general maintenance.

A usufruct may be registered against land/property by registering a notarial deed, creating the usufruct. At the termination of the usufruct, the notarial deed will be cancelled, and full ownership will be restored to the heir.

What are the advantages of a usufruct?

For estate planning purposes, the usufruct is often applied to save on estate duty tax. The right of enjoyment has a value that must be considered for estate duty tax purposes. It is dutiable in the usufructuary’s estate, should the usufructuary be the surviving spouse.

Often, a usufruct is created to reduce the amount that the testator’s estate will have to pay in estate duty. While the heirs become the property owners, the estate duty liability is greatly reduced due to the usufruct created in terms of the will. The usufruct passes to the surviving spouse free of estate duty (and other taxes). At the same time, while the bare dominium is no longer the total value of the property but the difference between the property value and the value of the usufruct.

What are the disadvantages of a usufruct?

It is often forgotten that a usufruct places a significant financial burden on the heirs of the property. It is advised that the testator / testatrix makes the necessary financial provision for the maintenance of the property subject to the usufruct to prevent unnecessarily burdening the heirs with the various costs involved.

The heirs, as rightful owners, may not sell the property without the consent of the usufructuary. Full ownership will only revert to them at the death of the usufructuary or the end of the stipulated period.

Furthermore, the base cost of the bare dominium will be less than the market value of the assets when the bare dominium is acquired, which will have a capital gains tax consequence for the holder of the bare dominium which, should be considered. 

Conclusion

Although the use of a usufruct structure in a will may have benefits for the testator/testatrix, the use of it should be considered thoroughly, and advice sought from a specialist in this field.