Legal Question in Wills and Trusts in Louisiana

Re: usufruct

Dear Law Guru Friend,

I read your question, and the answer is yes, the house can be sold to the the son who wants to buy it. He already owns an undivided one fourth interest in it, subject to the usufruct of an undivided one-half interest in the subject property in favor of his father. If he can live with that usufruct, all he has to do is to have the other three brothers sign the sale or donation of their undivided interest in the property to him. If he wants a clear title even before his elderly father passes on, he will have to have his father either sell or donate the usufruct to him, of at least waive the usufruct. I am not exactly sure how one rids himself of a usufruct, but I know it can be assigned, sold or donated. One might be able to just sign a notarial act of relinquishment of usufruct, although I have never known that to be done. So the answer is a definite yes, the house can be sold to the one brother who wants to buy it, and who already owns an undivided one-eighth interest in it. However, unless the brother who buys the property also obtains the usufruct that the father is holding, then the father is entitled to receive one-half of the rents and income (fruits) that the property draws. Now the son can put this income belong to his father in his own personal account and use it for the benefit of the father, but to be purely legal, he should not use more than half of the income for "maintenance" of the property, as one-half of the maintenance of the property is the obligation of the four brothers. Also, if the one brother who is buying wants the father to sign his usufruct over to him so that the brother who is buying has a clear (and full) title to the house, then the father might run into some kind of a problem with the government authorities who are paying the living expenses of the father in the nursing home, such as Medicare, Medicaid, or whoever, as the father is in effect dispossessing himself of some property, that property being a usufruct over immovable property, thus knocking the government authorities the right to collect from the father's estate whatever they might be entitled by law to collect. A lot would depend on the values assessed and assigned to the various interests in the subject properties (house, land and usufruct over house and land). In Louisiana such an interest in immovable property is called an incorporeal immovable, as I remember my law. As I usually say, there is more to it than this, but his is something to think about. Good question you have here. Not an easy situation for one to analyze and advise on. However,it would make a good question on a law school or bar exam. Best of luck!

Sincerly,

Hardy Parkerson, Atty.

Lake Charles, LA

Re: usufruct

If the father owns only a usufruct, he is not the seller, the sons are. The sale is still subject to the usufruct, which only the father can sell (but nobody wants to buy a usufruct). The one son would only buy out the "naked ownership" rights of his siblings, still subject to the usufruct. Contact a lawyer to draft the documents. I see no problems if it is done right.