What rights does a beneficial owner have?

What rights does a beneficial owner have?

"My late husband and I were married under the ordinary regime of participation aux acquêts and have two children. In his will, he made me usufructuary of the part of the estate devolving to our children, which consists partly of a capital sum. Can I use this money for my personal needs?

Now that your husband has died, the first thing to do is to liquidate the matrimonial property. If you were married under the regime of shared acquests, you are entitled to half of your husband's acquests, with the other half forming part of the estate. When it comes to settling the estate, in the absence of different shares set out in a will, you are entitled to half of the estate, with the other half to be divided between your children. For example, if your husband's acquests are worth the equivalent of CHF 100,000, you will receive CHF 50,000 from the liquidation of the matrimonial property, and the remaining CHF 50,000 will be divided between you (CHF 25,000) and your children (CHF 12,500).

However, in your capacity as usufructuary of the portion of the estate devolving to your children, i.e. $25,000, you have a full right of enjoyment over this amount as well. You have possession, use and enjoyment of it, but you cannot dispose of it freely. You are obliged to retain the substance of the property, which you must return to your children once the usufruct ends. Your children will then have to wait until your own death for full ownership, unless the will provides otherwise or you have agreed otherwise with them.

However, if the usufruct relates to something that disappears when it is put to normal use, such as foodstuffs or money, it is known as a "quasi-usufruct". This means that you become the owner of the object of the usufruct, unless the parties agree otherwise. This means that the usual rules relating to the duty of preservation or restitution do not apply. If the usufruct is due to end before your death, you will have to repay your children an amount equivalent to the initial capital, i.e. CHF 25,000. You therefore bear the risk of a capital loss, but also benefit from any capital gain. If the usufruct ends after your death, the repayment will be made as part of the settlement of your own estate.

It follows that if the will does not provide for the usufruct to end before your death, you will not personally have to repay to your children the sum of CHF 25,000 that you have used in whole or in part.