Can the mother sell the house after the father's death?

After the father's death, children often ask: can the mother sell the house and what happens to our share of the inheritance? The answer depends on the matrimonial regime, the ownership structure and any testamentary clauses. In most cases the mother can indeed sell the house, but children usually have a right to a portion of the proceeds through usufruct and bare ownership. This article explains step by step how things work legally and practically in Belgium, so you know exactly where you stand.

The ownership situation after the father's death

When the father passes away, the ownership situation of the family home changes depending on the matrimonial regime under which the couple was married:

1. Legal community of property regime (most common)

The property belonged to the marital community. After the father's death:

• The mother becomes owner of one half (her share of the community).
• The other half (the father's share of the community) passes to the children as bare ownership.
• The mother automatically receives usufruct over the entire property.

Result: the mother holds usufruct and is co-owner; the children are bare owners of the father's half.

2. Marriage contract with special clauses

Many couples include specific provisions such as:

• Option clause: the father's share passes to the mother upon his death.
• Survivor takes all clause: full ownership passes to the surviving spouse.
• Usufruct clause: the mother receives usufruct over everything.

Result: the mother may be the full owner and can sell freely.

Can the mother sell the house?

The answer to the question of the mother selling the house after the father's death depends on the situation:

Situation 1: The mother is the full owner

With an option clause or a survivor-takes-all clause, the mother may:

• sell the house on her own;
• retain the full proceeds;
• the children have no say at this point.

Situation 2: The mother holds usufruct, children hold bare ownership

This is the classic situation under the legal community regime:

• The mother cannot decide alone to sell.
• All children (as bare owners) must give their consent.
• Everyone signs at the notary's office (or grants a power of attorney).

When the property is sold, the proceeds are divided as follows:

1. The value of the mother's usufruct is calculated (age-based table).
2. The remainder goes to the children according to their share of the estate.

Example (house worth €300,000, mother aged 75):

• Usufruct: ±20% = €60,000 for the mother
• Bare ownership: €240,000 for the children (divided according to their number)

Step-by-step plan for the sale

Step 1: Check the ownership structure

• Request the deed of succession from the notary.
• Check the marriage contract and the will.
• Request planning and urban extracts and certificates (energy performance certificate, electrical inspection report, soil certificate).

Step 2: Have a valuation carried out

A realistic market value is essential:

• The mother wants to receive a fair amount for her usufruct.
• The children want maximum value for their bare ownership.
• A professional valuation prevents disputes.

Step 3: Agreement of all parties

• The mother and all children must agree in writing.
• Powers of attorney are arranged if not everyone can sign in person.
• The notary verifies all formalities.

Step 4: The sale process

• Choose an estate agent (jointly or through the preliminary agreement).
• Sign the preliminary sale agreement with suspensive conditions.
• Notarial deed: everyone (or their representative) signs.

Step 5: Distributing the proceeds

The notary calculates:

textTotal sale price
- Sale costs (notary fees, registration duties, certificates)
- Any outstanding mortgage
= Net proceeds

Then:

textNet proceeds × usufruct coefficient = Mother's share
Remainder = Children's share (divided according to their share of the estate)

Tax considerations

For the mother:

• Sale of the usufruct is tax-free (normal management of private assets).
• Donating her share to the children: gift tax applies.

For the children:

• Sale of bare ownership: usually free of capital gains tax.
• A donation of the mother's share within 3 years of the father's death may still be taken into account for inheritance tax purposes.

Registration duties: the buyer pays the standard rate (which varies by region in Belgium - currently 12.5% in Brussels and Wallonia, with possible reductions depending on individual circumstances).

What if the children do not agree?

When the mother sells the house after the father's death, conflict can arise:

1. Mediation: the notary or a family mediator organises a discussion.
2. Justice of the peace: one child can apply for a judicial partition if the sale is deadlocked.
3. Buyout: one child buys out the others (the mother retains her usufruct).

Practical tips for families

• Communicate openly: discuss the mother's future plans and everyone's interests.
• Document everything: put agreements on the distribution of proceeds in writing.
• Get a valuation early: avoid disputes over the property's value.
• Involve a notary: a neutral party for the legal settlement.

When selling makes sense

For the mother:

• The house is too large or the upkeep too demanding.
• Moving to a flat or assisted-living residence.
• Liquidity needed for care or support.

For the children:

• No interest in keeping the house.
• Avoiding a double housing cost.
• A simpler settlement of the estate.

When it is better to wait

• The market is still expected to rise.
• The mother still wants to live there.
• The children may want to buy in.

Next step: a valuation

Whether you sell or not, an objective valuation gives clarity on:

• what the mother receives for her usufruct;
• what the children receive for their bare ownership;
• which sales strategy is realistic.

Would you like to find out, together with your mother and siblings, what the property is actually worth and how a sale would pan out? Request a free valuation. A local estate agent will analyse the market value and advise on timing and approach, so that everyone can make an informed decision about the mother selling the house after the father's death.