Gift deed or will: which is more profitable, reliable and cheaper to draw up between relatives in 2021

The owner has the right to dispose of his property at his personal discretion. He can donate it, sell it, bequeath it to loved ones or to complete strangers. Relatives usually enter into a gift agreement or draw up a will, assuming that the property will definitely pass into the hands of the person to whom it is “addressed.” However, in practice this does not always happen.

What is the difference between a deed of gift and a will? What are the nuances of each document? What is more profitable and reliable to apply for this year? And which of the documents cannot be challenged? Daria Morozova answered these questions to the FAN .

Photo from the personal archive of Daria Morozova /

Which is better - a deed of gift or a will?

Both documents imply that the property in question will be transferred to a specific person. However, the conditions for its transfer vary.

Will

A will implies the disposition of property, as well as rights and debts in the event of the death of the testator. For example, a grandmother has an apartment, and she wants her granddaughter to get the housing after her death. She can write a will and name her granddaughter as the sole recipient of the inheritance. The document does not come into force immediately upon signing, but only after the death of the testator. The grandmother remains the sole owner of the apartment until her last days and continues to live peacefully in it. When the grandmother passes away, her will will be carried out within the period established by law.

“When there is a will, it doesn’t matter what exactly the law says about the distribution of inheritance,” notes lawyer Daria Morozova. “It will be divided exactly as the testator wanted.”

Gift deed

This document is drawn up when they want the property to pass to the donee here and now. For example, a grandmother has two apartments, and she wants to give one to her granddaughter so that she can use the living space today. In this case, you need to draw up a gift agreement, which is signed by both parties: both the one who gives and the one who receives the gift. This agreement must be registered with Rosreestr, and from the moment of registration, the rights to the property are transferred to the donee.

If a grandmother gives her only apartment to her granddaughter, she will lose the right to own and dispose of real estate. Her further quiet life in this apartment is possible only with the consent of her granddaughter, but without any legal grounds.

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Is spousal consent required?

A husband and wife who are legally married can dispose of common property only by mutual consent.

The transfer of property jointly acquired by spouses to another person without the knowledge of one of them is impossible and can be challenged in court.

You can donate or bequeath property without the other half only in 2 cases:

1. The property was acquired personally by one of the spouses before the official marriage.
2. The property transferred to another person was received through a gift.

In other cases, the spouses must jointly decide on the transfer of property, or one of them can bequeath his share of the joint property.

Which method of transferring property is better and more profitable depends on specific circumstances. Each of the above documents has its own characteristics, pros and cons.

Important information! Property can be bequeathed, donated or received only in accordance with current legal regulations. All legal aspects of the transfer of property, through donation or will, are outlined in the Civil Code of the Russian Federation.

Difference between deed of gift and will

“In essence, both documents perform a single function,” clarifies Daria Morozova. — It consists of a legally justified and lawful transfer of property into the ownership of another person. But in practice, questions and nuances often arise that need to be taken into account.”

Moment of transfer of ownership

As already noted, in the case of a donation, it occurs at the time of registration of the agreement. In addition, the very fact of donation must be gratuitous, that is, the donor must not demand anything in return from the recipient.

A will is also essentially free of charge, but the owner remains with his property until the end of his days, which is much more reliable for him than relying on the will of relatives.

Availability of signature

A deed of gift is an agreement in which the donor expresses his right to transfer property and confirms it with his signature. And the recipient accepts the gift, in confirmation of which he also puts his signature. There is only one signature in a will - the testator. The person to whom the property is intended does not require consent at the time of drawing up the document.

Possibility of changing the decision

If we talk about what is more reliable—a deed of gift or a will—then the deed of gift looks more convincing. The fact is that after it is drawn up and signed, the donor loses the rights both to the property and to make changes to the agreement itself. In fact, this is the final point in his property rights: after signing the contract, he can no longer make any decisions regarding the property.

If we are talking about a will, then it can be changed countless times. Today the grandmother wants to transfer the apartment to her granddaughter and writes a document in her favor. Tomorrow she and her granddaughter quarreled, and the grandmother decided to sign over the property to her grandson. She has every right to do this, and her first will will become invalid once the second one is signed.

Opportunity to challenge in court

As for the question of what cannot be challenged in court - a deed of gift or a will - here the first document is again more reliable. Of course, relatives can go to court after the death of the property owner and demand that the court terminate the gift agreement. However, as practice shows, these requirements usually lead nowhere. But the chances of challenging a will are much greater, and such claims are brought to the courts more often.

Only taking into account all these nuances can the owner decide what to draw up: a deed of gift or a will. At the same time, the price issue is not the least important.

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Important Terms

Before moving on to the analysis of the process of preparing both documents, you need to familiarize yourself with the basic concepts:

Gift deed or will - which is cheaper and more profitable?

“If a deed of gift is issued to close relatives, no taxes are charged,” comments lawyer Daria Morozova. “We are talking about giving to children, parents, brothers and sisters, grandparents. But, if the document is issued to strangers, for example, to an acquaintance or friend, he will have to pay tax. The rate is 13%, since in this case it is assumed that income will be received by an individual.”

To make a donation, you do not need to involve a notary, which reduces the cost of the registration procedure itself. If the apartment belongs to the grandmother entirely, she can safely give it to her granddaughter by simply drawing up a gift agreement and registering it. In this case, you will only need to pay the state registration fee.

If you make a will, the registration procedure may be somewhat more expensive. A will is always drawn up and confirmed by a notary; you will need to pay for his services. The average cost of this service in Russia is 2000 rubles.

For heirs, entering into an inheritance always requires payment of tax. Its size depends on the inheritance queue. The first priority, that is, children and spouses, pay 0.3% of the value of the property, for all others the rate is twice as high and amounts to 0.6%.

Re-registration of documents will also require financial investments and, of course, payment of state fees. Its size varies depending on the type of property, for example, the state duty for changing rights to an apartment is 2,000 rubles.

“A will or deed of gift implies payment of tax,” clarifies Daria Morozova. — It is paid by the one who receives the property. The only condition under which there will be no tax is close family ties when concluding a gift agreement.”

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Financial expenses

When choosing a method for transferring property to heirs, it is necessary to take into account the financial side of the issue.

• For a person who wants to transfer his property to another, it is cheaper to enter into a gift agreement. To register a deed of gift, you just need to pay a state fee (and even then not always), which can be shared with the recipient. When drawing up a will, in addition to notarization, you will have to pay a notary for drawing up each page of the document.
• For a person receiving an inheritance, material expenses depend on family ties. For close relatives, the best option would be a tax-free gift.
• For strangers, receiving property by any means entails payment of state tax. When receiving an inheritance under a will, the tax amount is much less than when accepting a gift.

Gift deed or will - pros and cons for the property owner

Each document has nuances both in its drafting and in defining the rights and obligations of the parties.

Legal force of deed of gift

The gift agreement is convenient from the point of view of registration. It is signed by both parties without involving a notary, after which you need to collect a package of documents to register the transaction and take it to Rosreestr. This simplified procedure applies if the property has one owner. If there are two owners, for example, both a grandmother and a daughter own an apartment, and the grandmother wants to give her share to her granddaughter, the transaction will have to be notarized.

“A significant advantage of a gift agreement for someone who receives property is that it is not subject to the right of joint ownership in marriage,” clarifies Daria Morozova. “This means that in the event of a divorce, the granddaughter will not have to share the apartment given by her grandmother with her husband, even if she received this gift during marriage.”

The disadvantages of a deed of gift for the donor include the loss of the right to own and dispose of property after registration. And also the impossibility of putting forward “counter demands”. For example, according to the law, a grandmother does not have the right to demand that her granddaughter pay for her maintenance on the “account” of the apartment given to her. Such a transaction may be recognized by the court as imaginary or void and terminated.

Subtleties of making a will

If we are talking about a will, it is convenient because it can be drawn up and changed countless times. The law does not define “limits”, but it establishes that the document drawn up last has legal force.

In addition, the owner of the property retains his rights to it until his death and can use it legally until his last days. He can even donate or sell an apartment that he had previously bequeathed to someone close to him. And in this case, the deed of gift cancels the will, since, according to the gift agreement, the rights to the property are transferred “here and now.”

The testator can change his mind at any time and transfer his property to other persons. At the same time, he is not obliged to inform anyone.

“Of course, a will is much more beneficial for the testator,” the expert comments. “But it is important to understand that after his death it can cause serious conflicts between loved ones. It is also important to take into account that wills are challenged and revoked much more often than gift wills. And that there is a group of people who must receive an inheritance without fail, despite the last will of the deceased. We are talking about disabled children, parents and spouses, as well as minor children. Their share of the inheritance is determined by law.”

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When is it more profitable to give an apartment?

From the position of a home owner, it is more profitable to gift a loved one with an apartment if you want to make the future owner happy, while at the same time protecting you from regulatory red tape on accepting an inheritance and legal disputes with other legal heirs. Of course, this is the best opportunity for the recipient to acquire an apartment.

However, if the person to whom the housing is given does not belong to the circle of close relatives of the donor-owner, the costs of registering the gifted property, including tax, will be quite significant. The most correct thing would be to find out from the donee (not a close relative) what he prefers - to become a full owner now, but incur tax expenses, or later (after many years) and without tax payment, but with the risk of inheritance disputes.

It is important for a potential donor to understand the personal risks that follow a donation of an apartment. By signing a donation agreement, he loses the right of ownership of the donated housing, as well as the right to reside in it, unless there is a clause in the agreement stating otherwise.

Possible risks for the donor are as follows:

• The initial gratitude of the recipient will weaken over time, and the attitude towards the donor may deteriorate. Then the new owner has the right to deprive the donor of housing that no longer belongs to him;
• the recipient will remain good-natured and grateful to the donor, but circumstances (for example, expensive treatment) will force him to sell the apartment. As a result, the recent benefactor finds himself homeless, i.e. on the street.

Finally, after a while, the donor may come to the understanding that the apartment was given to him by mistake (to the wrong person, at the wrong time, etc.). However, the gift agreement is practically indissoluble. The legislative norms relating to the procedure for donating an apartment are discussed in detail in this article.

Gift deed or will - which is better between relatives

According to Daria Morozova, when solving this issue, it is necessary to take into account the characteristics of a specific situation. Let's look at the most common ones.

The grandmother wants to transfer the apartment to her caring granddaughter, and not to her unemployed rowdy son

In this case, it is appropriate to draw up a deed of gift. Firstly, the granddaughter will be able to use the housing immediately, she will not have to wait for the death of her grandmother and enter into an inheritance for at least another six months. Secondly, the granddaughter will not have to pay any taxes, which means the gift will not cause financial difficulties for a loved one.

Grandfather wants to give an apartment to his nephew

This relationship is not close by law, but property can be transferred as a gift between relatives “along the chain” without paying taxes. For example, a grandfather can give an apartment to his sister, and she can give it to her son, for whom the housing was intended.

An elderly relative plans to transfer the apartment to his grandchildren, but does not want to lose it now

In this situation, it is wise to make a will. In this case, no one will be able to kick the old man out of his apartment, and after his death, the housing will be divided among the heirs indicated in the document.

How to convert a will into a deed of gift

Even if a will has already been drawn up, no one can prevent a person from donating his property specified in the document to a relative or even strangers. An apartment, house, or land plot “described by inheritance” does not belong to the heirs while the testator is alive. Therefore, he can dispose of his property completely calmly, as if no will exists. And there is no need to redo anything: it is enough to draw up and register a gift agreement, which automatically revokes the will. The latter simply makes no sense.

If relatives do not agree with the decision of the property owner, they will have to challenge the transaction in court. And for this you need good reasons. It will be necessary to prove that the donor either did not understand the essence of his actions, or was under pressure, or that the transaction was imaginary. Most often, it is not possible to present convincing arguments in court, and the will of the donor cannot be challenged.

Therefore, it is possible to ignore the presence of a will when drawing up a deed of gift. But having donated your property, you cannot try to bequeath it to someone. By signing a deed of gift, a person loses his rights to the property and can no longer dispose of it.

conclusions

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

According to the author of the article, a will is the safest way for the owner to alienate property. Especially if the owner of the apartment or house has no other housing.

However, for the recipient of the apartment, the best option is a deed of gift. The donee bears virtually no costs (if he is a close relative). In addition, rights to the object arise within 14 days.