Planning the future of one's real estate assets is an act of responsibility that many parents wish to undertake to ensure peace of mind for their children. One of the most frequent solutions is the donation of bare ownership with reservation of usufruct. This operation allows the ownership of the property to be transferred to descendants, while retaining the right to live in it or to receive its fruits for life. However, although it appears to be a straightforward solution, it hides legal complexities that require careful evaluation, especially with a view to future succession. As an expert lawyer in inheritance matters in Milan, Avv. Marco Bianucci guides families through this delicate process, analyzing every legal implication to avoid future disputes among heirs.

What is usufruct reservation and how does it work

Donation with reservation of usufruct is a contract whereby the owner (donor) transfers ownership of the property to another party (donee, usually a child), divesting themselves only of the so-called "bare ownership". The donor retains the usufruct for themselves, which is the right to enjoy the property, to live in it, or even to rent it out and collect the rents, generally for the duration of their life.

From a legal standpoint, upon the death of the usufructuary, the usufruct is extinguished and automatically "reunites" with the bare ownership. At that point, the donee becomes the full and exclusive owner of the property, without the need for further transfer deeds and without having to pay further inheritance taxes on the consolidated value.

Advantages and critical issues of property donation

The advantages of early planning

This strategy offers undeniable benefits. Firstly, it allows the effects of succession to be anticipated, ensuring that children become owners of the family home. Secondly, there is often a tax advantage: donation taxes are calculated on the value of the bare ownership only, which is lower than the value of the full ownership and decreases as the usufructuary's age increases. Finally, it guarantees the parent the security of not having to leave their home.

Risks for succession and property circulation

Despite the benefits, an expert lawyer in inheritance law must also highlight the potential risks. The main problem concerns the protection of forced heirs (i.e., other heirs who by law are entitled to a share of the estate, such as a spouse or other children). If the donation of bare ownership infringes upon their legally protected share, they may challenge the deed through an action for reduction after the donor's death. Furthermore, the fact that a property originates from a donation makes it more difficult to sell to third parties or to obtain a mortgage, as banks fear potential claims from forced heirs.

The approach of Studio Legale Bianucci to asset protection

The management of family property transfers cannot be limited to the mere drafting of a deed but requires an overall view of the assets and family dynamics. The approach of Avv. Marco Bianucci, an expert lawyer in inheritance matters in Milan, begins with an in-depth analysis of the overall estate. The objective is to verify that the donation of bare ownership does not create imbalances that could trigger future legal disputes.

At the firm located at via Alberto da Giussano 26, each case is examined to determine if donation is indeed the most suitable instrument or if it is preferable to consider alternatives such as a will or a sale, depending on the specific objectives. The firm's strategy aims to secure the transaction, suggesting clauses or prior agreements (where permitted by law, such as the waiver of opposition to the donation by other forced heirs) to ensure that the parent's wishes are realized without prejudice to harmony among the children.

Frequently Asked Questions

Can I sell the house if I have donated the bare ownership?

No, the donor who has reserved the usufruct cannot sell the full ownership of the property, as they are no longer the sole owner. They can transfer their usufructuary right (if not prohibited by the deed), but to sell the entire house, the consent and joint signature of the bare owner (the child) are also necessary.

Who pays for condominium fees and taxes: the usufructuary or the bare owner?

The law provides for a precise division: ordinary administration expenses, ordinary maintenance, and taxes related to the enjoyment of the property (such as IMU, if applicable) are the responsibility of the usufructuary. The bare owner, on the other hand, is responsible for extraordinary repairs (e.g., roof or facade renovation).

Can other children contest a donation made to only one sibling?

Yes, if at the time of the opening of the succession (parent's death) it is ascertained that the value of the donated bare ownership has infringed upon the legally protected share due to the other children, they can take legal action to obtain the reinstatement of their share, by claiming the donated property.

What happens if the bare owner dies before the usufructuary?

Bare ownership is an asset that becomes part of the bare owner's estate. If the bare owner dies before the usufructuary parent, the bare ownership will pass to their heirs (e.g., their children or spouse), who will step into the same legal position, awaiting the extinction of the usufruct to consolidate full ownership.

Request a legal consultation in Milan

Deciding to donate the bare ownership of one's home is a step that profoundly affects future family and financial balances. To avoid mistakes that could prove costly for your heirs, it is essential to act with awareness. Contact Avv. Marco Bianucci for a preliminary assessment of your case. The firm receives clients in Milan at via Alberto da Giussano, 26, and is ready to assist you in succession planning with expertise and discretion.