Sooner or later, every person is faced with the need to competently distribute acquired property between family and friends. There are two options for this: making a will or registering a deed of gift.
In general, most often real estate is inherited. Apartments and country houses have always been and will be the most “tidbits” in the inheritance. Therefore, many people are concerned with the question of how to properly manage their property, what is faster and more profitable to do: write a will or draw up a deed of gift?
What is donation
According to the law of the Civil Code of the Russian Federation, Article 572, the following is considered a donation.
Free transfer of property
If you give something to someone out of your heart without asking for anything in return, that is a gift. And it doesn’t matter whether it’s a mug with a funny inscription or a cottage on the shore of a lake. The only difference is how it is formatted. In most cases, it is enough to verbally announce the intention and hand over the gift itself, or documents for it, or its symbolic designation, such as keys. There are two exceptions when it is necessary to conclude a written gift agreement:
- When transferring real estate. The transfer of ownership from one owner to another must be registered with Rosreestr, for which papers will be needed.
- If a legal entity gives something more expensive than 3 thousand rubles.
There is no legal requirement to issue a deed of gift for a car. But you will have to do this too. The papers will be useful for re-registration of transport to the recipient at the traffic police. Although, in general, it is always good to somehow record the fact of donation when we are talking about something valuable. Evidence may be required if any disputes arise. For example, a grandmother gave her granddaughter earrings with diamonds, and then forgot about it and accused her of theft. Evidence will help restore an honest name.
In addition, the gift must be made disinterestedly, otherwise the transaction will be considered void. So, sometimes when selling a share in an apartment (for example, a room in a communal apartment), the seller does not want to collect refusals from the remaining owners and instead of a purchase and sale agreement offers a gift agreement. And buyers simply give him money against a receipt. Interested parties like neighbors can easily challenge the deal.
Promise of a gift in the future
Let's say a grandmother is going to sign over her apartment to her grandson when he turns 18. Words cease to be empty chatter and become promises that must be fulfilled by law. But only if everything was formalized in writing: for promises, it is necessary to sign a gift agreement.
In addition, there are several conditions:
- You need to give something specific. You cannot write “everything that is mine is now yours”; it will not have legal force.
- A gift cannot be promised to pass to the recipient upon the death of the current owner. For such cases, there is a will. Therefore, the agreement will be considered unconcluded.
- You cannot promise a gift in exchange for the performance of any services or obligations. He must be selfless. If a grandmother wants her grandson to look after her, and only then will he get the property, this is not a gift.
If the donor does not live to see the day when he promised to give the gift, his heirs will have to do this. When the recipient dies first, the gift does not need to be transferred to anyone else—unless otherwise specified in the contract.
Exemption from property obligations
If you forgive a debt or undertake an obligation to pay it for someone to a third party, this is formalized by a gift agreement, and it must be in writing. For example, if you decide to repay your retired mother’s loan, this is your case. And, again, your impulse must be selfless.
Regulatory regulation of the concepts of deed of gift and agreement on donation of things
Legal relations arising between the parties when concluding a gift agreement for an apartment or other real estate (movable) property are regulated by Chapter 32 of the Russian Civil Code.
According to the provisions of Article 572 of the Code, a gift is a transaction that provides for the unilateral obligation of a person (donor) to transfer free of charge to another person (done) some type of property.
According to the legislation, a donor is considered a person who, on his personal initiative, has an obligation to give his property to another person (citizen, organization or state) without presenting counterclaims. The donee is considered to be the person who receives the object of the donation into ownership along with all real rights to it.
A gift agreement can be concluded for a car or any other thing owned by the donor. Along with the property, the donor also transfers all property-type rights to it. In addition, when concluding a transaction, it may be possible to provide for the transfer of all property obligations related to the subject of the gift (for example, repayment of a loan for property, etc.).
An essential condition of a gift agreement is that the donor has no counterclaims, and the donee has no counterobligations arising from the content of the agreement.
Who can be the donor
There are no restrictions for gifts cheaper than 3 thousand rubles. As for more expensive gifts, the donor is not subject to many requirements of the Civil Code of the Russian Federation Article 575. It should be:
- As an owner of property, you cannot give someone else’s property or something that you own more than once.
- Mentally healthy and fully aware of your actions at the time of signing the contract.
Let's talk about the last point in more detail. If a person was under the influence of alcohol, drugs, or gave something under pressure, this does not count. Those who are declared incompetent by the court cannot present anything either. Moreover, this cannot be done on their behalf.
Children under 14 years of age cannot act as donors. You cannot give gifts on their behalf. That is, if a child inherited a share in an apartment from his grandmother, the parents cannot give it to someone. From the age of 14, a child can give expensive gifts with the written consent of his mother, father or legal guardian. A person receives the full package of donor rights from the age of 18, or from 16 if he is emancipated by law.
Gifts that are transferred from one company to another are also prohibited. From a legal entity to an individual and vice versa - as much as you like.
Briefly about the main nuances of a deed of gift
A deed of gift by its nature is a gift agreement in which the parties are referred to as the donor and the donee. The main purpose of this agreement is the gratuitous transfer of property into the ownership of the donee, regardless of whether he is a relative or not.
The deed of gift, in my opinion, seems to be the most profitable deal for the donee. After all, what is given cannot be returned! It is very difficult to challenge a deed of gift in practice. When registering a deed of gift, the donor runs the risk of losing all contacts and relationships with the recipients.
After all, there is a high probability that new property owners may “forget” about it immediately after signing the gift agreement. But this point, in turn, is an obvious disadvantage for the donor himself.
If you want to transfer, for example, an apartment to your daughter, son or parents, the easiest way to do this is through a gift agreement. If the relatives are not close, donation is unprofitable. In addition, the gift is primarily beneficial to close relatives, who will not have to pay tax on it.
Features of donation transactions:
- In some cases, a gift agreement must be certified by a notary: for example, if a share in an apartment is donated, the property of a minor is alienated, or a representative is involved in the transaction by power of attorney. The registrar will not accept documents without a notary's signature.
- To register rights in the Unified State Register of Real Estate, you can contact Rosreestr or the MFC if real estate has been donated.
- A gift agreement must be concluded if the value of movable property exceeds 3,000 rubles, or real estate is donated: an apartment, a garage, a house, a plot, etc.
- The donor has the right to cancel the donation in cases specified in the current law.
How to draw up a gift agreement
There are no strict rules for paperwork. But here's what should be in the document.
Parties' details
It is necessary to indicate the last name, first name, patronymic of the donor and recipient, dates of birth, passport details and registration address.
I, citizen Bilbo Baggins, born September 22, 2890, place of birth in the Shire, Middle-earth, registered at Bag End, Hobbiton, Shire, on the one hand,
and citizen Frodo Baggins, born September 22, 2968, place of birth in the Shire, Middle-earth, registered at Bag End, Hobbiton, Shire, on the other hand,
being of sound mind and sound memory, acting voluntarily, we have entered into this agreement as follows.
Gift information
What is it, with what characteristics, to whom and on the basis of what documents does it belong. So, if an apartment is donated, then this will be the address, square footage, cadastral number, number and date of registration of ownership, as well as the reason for its occurrence - for example, a purchase and sale agreement.
I, citizen Bilbo Baggins, have given to my nephew Frodo Baggins a smial with countless rooms, located at Bag End, Hobbiton, Shire. Cadastral number of the object: 11:111111:111. The said smial belongs to Bilbo Baggins on the basis of certificate of inheritance 00AA1111111.
Recipient's consent to accept the gift
It's a two-way deal, so it's worth pointing that out.
I, Frodo Baggins, accept the indicated smial from Bilbo Baggins.
The rest of the contract content is standard, so just check the templates.
- Real estate donation agreement template →
- Car donation agreement template →
- Template for a future donation promise agreement →
If the agreement does not require a visit to a notary, it comes into force after signing. If required, then after its assurance.
Briefly about the main conditions of the will
A will is a unilateral act that expresses the will of a citizen (testator) regarding the use of his property in the event of death, and also contains information about to whom the property will be transferred, that is, the heirs are listed (they can also be persons who have no family ties ) and how they should be disposed of.
But a will also has significant disadvantages that should be kept in mind:
- the will comes into force only after the death of the testator;
- a will will in no way save the testator and heir from other relatives who, by law, are entitled to a so-called obligatory share.
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The Supreme Court of the Russian Federation has simplified the proof of a gift agreement orally
Until recently, the only possible form of agreement for the gift of cash between individuals in an amount over 10,000 rubles was a written form (receipt, etc.).
In April 2021, the Supreme Court of the Russian Federation recognized the validity of the contract of donation of funds concluded between the spouse and his father in the amount of 4,700,000 rubles.
On 04.04.2019, by a ruling of a judge of the Supreme Court of the Russian Federation, it was refused to transfer complaint No. 5-KF19-1289 (No. 4g13767/2018, No. 3337677/2018, No. 02-5316/2017) for consideration at a court hearing. The refusal was motivated by the fact that the Supreme Court of the Russian Federation agreed with the conclusions of the courts of appeal and cassation that in the case there was a concluded agreement for the gift of cash. In this case, the only evidence of this fact is oral testimony of the parties to this agreement and a witness - the wife of the donor and the mother of the donee. It seems like nothing special, but the courts did not take into account the fact that we are talking about jointly acquired property and determining the shares of each spouse.
In the present case, we were talking about the division of an apartment acquired during the marriage. The court of first instance recognized this apartment as the joint property of the spouses and divided it in equal shares. In the appellate instance, the panel of judges believed the husband’s parents who claimed that the husband’s father gave him this money to purchase an apartment, without providing any written confirmation of his words.
Based on this, an apartment acquired during marriage, registered in the name of the spouse, was recognized as the property of the spouse, since the courts decided that there was a gift agreement concluded in violation of all possible rules.
From the appeal ruling of the Judicial Collegium for Civil Cases of the Moscow City Court in case No. 33-3767782018.
“Satisfying the requirements of Yugai T.N. on the division of this apartment, the court proceeded from the fact that this property was acquired during the marriage, is jointly acquired property and is subject to division between the parties in equal shares.
At the same time, Yugay I.D.’s argument that the said apartment was purchased with funds donated by his parents, the court rejected as unfounded, finding that Yugai I.D. in violation of Art. 56 of the Code of Civil Procedure of the Russian Federation did not provide evidence that would indicate the use of funds received from parents as a gift in the acquisition of disputed real estate, the acquisition of said property only with the personal funds of Yugay I.D., and not from the joint budget of the spouses.”
From the cassation ruling of the Presidium of the Moscow City Court on complaint No. 4g/2-13767/18 about the refusal to transfer the complaint for consideration at the court hearing.
“The panel of judges also indicated that... the fact of the donation of funds from the sale of an apartment in the city of Shcherbinka to Yugay for the purchase of his own apartment was confirmed at the court hearing by witness Yugay (the husband’s mother*); The testimony of this witness is consistent with the above written evidence."
Thus, to confirm the conclusion of a cash donation agreement in an amount over 10,000 rubles. no written evidence is required.
