Is it possible and how to issue a deed of gift for a minor child?

At all times, own real estate is the key to stability and peace of mind in the future. Therefore, today many parents who are worried about the future of their children are trying to officially register any movable or immovable property for them by drawing up a deed of gift or testamentary document. As legal practice shows, one of the most pressing issues in the field of family law is the registration of a deed of gift for an apartment for a child under the age of majority. In addition, this is the most common way of transferring property to close relatives in the field of civil transactions. The procedure for transferring property under a gift agreement is regulated by Chapter 32, Art. 572-582 of the Civil Code of the Russian Federation, also in Art. 578 provides for cases of cancellation of ownership in order to return donated property. In accordance with the norms of the current Russian legislation, every Russian is considered a legally capable citizen, starting from the moment of birth, which, in turn, means that even newborn children can be the owners of real estate on the basis of a gift agreement, if they have a passport or birth certificate. At the same time, it is worth considering that a child does not have the right to participate in real estate transactions until he reaches the age of majority; their interests are represented by legal representatives, in particular, parents, guardians or adoptive parents. A gift agreement can be drawn up only in the presence and with the consent of the child’s legal representatives.

Features of donating to a minor

According to the law, a citizen’s legal capacity arises in full upon reaching the age of majority, that is, at the age of 18 (Article 21 of the Civil Code of the Russian Federation). Persons married before the age of eighteen acquire full legal capacity.

Until the age of majority, legal representatives of children bear property liability for transactions:

1. children under 14 years of age (minors) – transactions for children of this age group are concluded by their parents, adoptive parents, guardians;
2. children from 14 to 18 years old make transactions with the written consent of parents, adoptive parents, guardians;
3. Minors from 6 to 18 years of age have the right to independently, without the consent of their legal representatives, commit:

• small household transactions;
• transactions to receive gratuitous benefits that do not require notarization or state registration.

Deed of gift to minors - conditions and legislative framework

The process of transferring property to incapacitated persons is regulated by articles of the Civil Code of the Russian Federation. The only difference is that until a certain point the child cannot independently manage the property, and this responsibility passes to the legal representatives.

The donation transaction should not be harmful to the child. If this fact is confirmed, the deed of gift will be cancelled.

What can you give a child using a deed of gift?

There are no legal restrictions on gifts to children. You can give things, toys, books. In this case, the donation is made orally.

You can donate an apartment, house, or land to a minor only through a written donation agreement. In accordance with Article 131 of the Civil Code, ownership of real estate is subject to state registration. A gift agreement drawn up in writing is the basis for the transfer of ownership and, together with other documents, is submitted for registration.

The procedure for concluding an agreement depends on the type of property, the rights of other persons to this object, and the age of the donee.

Let's consider the features of giving various types of property gifts

Deed of gift: in what cases is it possible to cancel or refuse the deed of gift?

A deed of gift for an apartment for a child can only be canceled in court within a period of no more than 3 years from the date of signing the donation agreement (Article 578 of the Civil Code of the Russian Federation). The following reasons may serve as grounds for cancellation of the deed of gift and return of property:

• the presence of evidence that the transaction was made on illegal grounds, in violation of the rights of a minor;
• careless attitude towards the donated property, which in the future could lead to irretrievable loss;
• the donation transaction was completed no less than 6 months before the bankruptcy procedure of a private business owned by the donor;
• intentional infliction of bodily harm on the donor, significant deterioration of his life and well-being.

The donee himself has the right to refuse a deed of gift for property before receiving the deed of gift and with compensation to the donor for the damage that arose as a result of non-acceptance of the gift. Refusal of the deed of gift must be made in writing with mandatory registration with government agencies. In the case of registration of a deed of gift for the transfer of equal parts of property to several minor children, the gift agreement is drawn up in the presence of all participants in the transaction, including the legal representatives of minors, with the subsequent signing of all necessary documents.

Gift of real estate to a minor

To give an apartment, room, house, land, or garage to a minor, follow the following procedure:

1. Draw up a gift agreement. The agreement is drawn up in writing and signed by the parties.

• if the donee is under 14 years of age, the agreement is signed by the child’s legal representatives;
• recipients aged 14 to 18 years sign the agreement themselves, with the consent of their legal representatives.

1. Prepare the necessary documents:

• application for state registration from the donor and the donee (legal representative);
• gift agreement;
• identification documents of the donor, recipient and their representatives;
• power of attorney (if documents are submitted by an authorized person of the representative);
• title and right supporting documents for the property;
• consent of the donor's spouse, with mandatory notarization (if the object of the gift is the common joint property of the spouses);
• other documents depending on the situation (for example, a decision of the guardianship and trusteeship authority, a court decision).

1. Pay the state fee. For state registration of property rights, it is necessary to pay a state duty (Article 17 of Law No. 218-FZ).
2. Register the transfer of ownership in Rosreestr.

Citizens can submit documents for registration independently through multifunctional centers for the provision of state and municipal services (MFC).

The donation of a house is made together with the land plot on which it is located.

The land plot is alienated along with the objects located on the site.

If the garage is located in a cooperative, it can be donated only after the last share contribution has been made.

How to issue a deed of gift for an apartment through the MFC: payment of state duty and tax

Registration of a deed of gift for a minor

The law does not prohibit drawing up simple agreements without the presence of a lawyer. It is more convenient to delegate this task to a notary, but this will require taking into account additional costs.

How to draw up a deed of gift yourself?

It is necessary to gather all parties to the agreement and draw up an agreement with the following content:

• property information;
• links to legal documents;
• transfer conditions.

Both parents of the child must sign the document, unless one of them has been deprived of parental rights. After this, the documents are transferred to the MFC. The algorithm is discussed in more detail below. The advantage of doing it yourself is saving money; you only have to spend 1,000 rubles. However, if there is any error, the agreement will be rejected by the registration department.

Registration by a notary

If you order services from a professional notary, you will be able to avoid common mistakes. The specialist will not only draw up an agreement, but will also register it. In this case, you will have to pay several thousand rubles for complex services, not counting the state duty.

Required documents

The set of papers may differ depending on the region of residence of the agreement’s supporters. The specific package should be clarified with the registration authorities or the MFC. The following papers are usually required:

• Russian passports of all parties/birth certificate;
• consent of property owners (required for complete transfer of real estate in shared ownership);
• agreement (original and 2 copies);
• title documents for property;
• written parental agreement;
• cadastral or technical passport;
• an extract from the house register confirming the absence of debts.

You must have this list of documents with you during registration.

Gift tax

The tax is not paid if the transfer of property occurs between direct relatives: from parents to children. Otherwise, it will be necessary to pay 13% of the average price of the subject of the agreement to the state budget.

Registration of the agreement

To register the agreement (this is necessary for the paper to come into force), you must contact the MFC or the registration service. Before submitting the documents, the state fee is paid, the receipt is attached to the contract. You can find out its size and payment details at the registration service.

Timing and cost

There are several items of registration costs. The main one is a state duty in the amount of 0.3-0.5% of the market value of the item being transferred. An additional 13% state tax is paid if the recipient is not a blood relative of the former owner. The cost of notary services ranges from 3,500 rubles.

Final document

The final agreement must contain a note indicating registration with the relevant authorities. This paper must be retained to avoid disputes.

Sample agreement for donating an apartment to a minor child

A standard form of the document can be requested from a lawyer. It is allowed to create an agreement in free form, specifying the main points:

• Full name of the parties to the agreement;
• the subject of the donation and information about it;
• links to legal documents;
• the donor’s guarantee that the property is not mortgaged or sold;
• signatures of all parties.

sample agreement for the donation of real estate to a minor in .doc (Word) format example of filling out an agreement for the donation of real estate to a minor in .doc (Word) format

At the end, you can have the deed of gift certified by a notary in the presence of both parties, although this is not required by law.

Certification of the gift agreement by a notary

Mandatory notarization of the gift agreement is required in the following cases:

• donation of real estate belonging to a minor citizen or a citizen recognized as having limited legal capacity;
• donation of shares in the right of common ownership of real estate (except for the donation by all participants in shared ownership of their shares in one transaction).

A notary is required to submit an application for state registration of rights and the documents attached to it to Rosreestr, subject to the consent of the parties to the transaction.

You can donate a share in a house or apartment without the consent of other owners.

If the property being transferred as a gift is the common joint property of the spouses, the consent of the other spouse to the alienation of the property is required. Consent must be certified by a notary.

Before donation, the share in the property right must be allocated. To do this, an agreement is drawn up on the allocation of shares from the common property of the spouses. Changes are registered in Rosreestr and then a deed of gift is issued for the child.

It should be taken into account: donation of real estate on behalf of minors (under 14 years of age) and citizens declared incompetent by their legal representatives is not allowed (clause 1, clause 1, article 575 of the Civil Code of the Russian Federation)

Costs of the gratuitous alienation procedure

Making a deed of gift will have to involve financial expenses on the part of the representatives. In this case, the donor himself may express a desire to bear any costs, indicating this in the contract.

The deed of gift assumes:

• Fees for notarization of a transaction (0.3-0.5% of the value of the gift);
• State duty for re-registration in Rosreestr (2000 rubles);
• thirteen percent contributions to the state treasury if non-relatives are involved in the agreement;

This is also important to know:
Deed of gift for an apartment between close relatives

It should be remembered that the participation of a notary guarantees verification of the legality and a competently drawn up document, but is not mandatory for the transfer of a gift. Contacting the office is required when certifying the consent of the spouse when alienating jointly owned housing, as well as when making a shared contribution.

How to give movable property to a child

Movable property includes cars, motorcycles, equipment, money, shares, securities, etc.

When donating shares, the agreement must be drawn up in writing. The agreement is transferred to the registrar of shares to formalize the transfer of rights. There is no need to involve a notary or guardianship authorities.

A promise to make a gift in the future must be made in writing. The agreement should indicate the participants, the donor’s desire to transfer the gift and the recipient’s consent to accept it. Describe the item of donation in as much detail as possible, indicating its characteristics and features.

When donating a vehicle, you will also need a written donation agreement to register the vehicle. A written donation agreement will be the basis for entering information about the new owner into the vehicle passport.

Registration fee

How much does it cost to issue a deed of gift? This question worries not only those who decide to transfer the apartment to their children.

Notary services for certification of deeds of gift cost differently. On average, a citizen will have to pay about 1,000 rubles per transaction. It is recommended to check with the selected notary office for more accurate information.

How much does it cost to issue a deed of gift without a notary? If we talk about the state fee for transferring rights to property, the transaction will cost 2,000 rubles. This is the amount of payment when registering agreements on the transfer of property rights between individuals.

Who can act as a donor

Donors can be individuals and legal entities. The donor must:

1. have a proprietary right to the thing transferred under the contract;
2. be legally competent and of legal age;
3. obtain consent for donation from certain persons in the following cases:

• a legal entity that owns a thing under a limited property right must obtain the consent of its owner (clause 1 of Article 576 of the Civil Code);
• a spouse who wishes to donate property that is the common property of the spouses must obtain consent from the other spouse (clause 2 of Article 576 of the Civil Code);
• minors aged 6 to 14 years must obtain consent to give small gifts from their legal representatives (clause 1 of Article 575 of the Civil Code);
• minors aged 14 to 18 years must obtain written consent from their parents or guardians (this provision does not apply to small gifts - clause 2 of article 26, clause 2 of article 28 of the Civil Code).

Contract form

According to the general rule established by paragraph 1 of Art. 574 of the Civil Code, most real donation agreements (executed at the time of signing) can be in oral form - their presentation in a written document, however, is quite acceptable by the decision of the parties to the transaction. At the same time, the legislator has identified several exceptions that necessarily require compliance with the written form of the gift agreement.

• Real estate donation agreement . The written form of the agreement is due to the need for state registration (Article 131 of the Civil Code), for which it is necessary to provide the original agreement. Note that the agreement itself, concluded before March 1, 2013, also requires state registration.
• Notarized gift agreement . The procedure for certifying transactions allows for the execution of only written documents, which is why, if it is determined that it is necessary, the parties must formalize the agreement in writing.
• Contract of promise of donation (clause 2 of Article 574 of the Civil Code). The norm is aimed at protecting the rights of the donee. Let us note that both parties, before the execution of such an agreement, have the right to refuse to transfer or accept the gift. It is important that the donee bears property liability for such a refusal (clause 3 of Article 572 of the Civil Code), while the donor does not (clause 3 of Article 577 of the Civil Code).
• Donation agreement by a legal entity, where the value of the gift is above 3 thousand rubles (clause 2 of Article 574 of the Civil Code). Based on this rule, if the value of the gift is less, an oral conclusion of an agreement is permissible, which introduces an exception to Art. 161 of the Civil Code, which requires written registration of all legal transactions. persons

Does a minor pay gift tax?

Donors can be relatives and strangers. It depends on who the donor is whether the donee will pay tax on income received under the gift agreement.

If the donors are family members or close relatives, the recipient will not have to pay personal income tax. If there is no close relationship, the legal representatives of the minor pay personal income tax in the amount of 13%.

Example: An uncle gave an apartment to his nephew. The cadastral value of the apartment is 2,500,000 rubles. Since the uncle and nephew are not close relatives, the parents of the minor will have to pay personal income tax in the amount of:

2,500,000 x 13% = 325,000 rubles.

To pay the tax, you need to submit a tax return in form 3-NDFL for the next year after registering property rights by April 30. The tax must be paid by July 15.

In addition to personal income tax, if a minor receives real estate as a gift, he will also be required to pay property tax (Article 401 of the Tax Code) in the amount of 0.1 to 2% of the cadastral value (Article 406 of the Tax Code). The child's legal representatives will pay this tax until adulthood.

How much does it cost to register a gift deed?

How to make a deed of gift for different types of property

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In addition to the apartment, children are given ownership rights to:

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• Real estate shares;
• Home;
• Land allotment;
• Movable property (vehicles).

If the donor owns an allocated share of property, he can give it to his children (Article 250 of the Civil Code of the Russian Federation). The permission of the owners of the remaining shares is not required. Alienation of part of the share is also practiced. A special feature of the agreement is the preliminary division of shares in BTI.

Fact

You can view the form for the donation agreement for a share of the apartment here.

Giving a house or land is similar to giving other real estate. The differences will be in the taxes that the legal representatives of the minor will have to pay before turning 18 or after the emancipation procedure.

Registration of a car to a new owner takes place not at the registration chamber, but at the traffic police department. A child can become a full-fledged owner, but the right to drive and other operations with a vehicle are available only upon their 18th birthday. Taxes and maintenance of vehicles are the responsibility of parents or guardians, which is reflected in the gift agreement.

Reasons for refusal to register transfer of rights

A notary or state registrar can refuse to formalize an agreement.

Reasons for refusal may be:

• the donor is under 14 years of age;
• the donor is incapacitated;
• there is no consent of the spouse to the transaction when donating common property;
• The representative's power of attorney does not indicate what is being given or to whom.

There may be other reasons. The refusal will state why the registration was suspended, for what period and what needs to be corrected or reported. After correction, registration will be completed.

Is it possible to refuse a donation or challenge it?

In accordance with Art. 578 of the Civil Code of the Russian Federation, the donor may cancel his order if the person to whom the real estate was donated committed illegal actions against him or his relatives.

In this case, the issue of termination is decided by the court. The grounds will be facts recorded by law enforcement agencies.

The donor also has the right to file a claim in court to cancel the deed of gift if he proves that the donee is handling the thing unsatisfactorily, which may lead to its unusability or destruction. It is important to emphasize here that the gift is of great value, and he cannot accept its damage or loss.

Reasons for terminating a gift agreement

Participants in the obligation under consideration should take into account that there are grounds on which it is terminated. This is, first of all, a violation of its mandatory conditions.

These include:

• there is a signature of a minor child;
• signing of a deed of gift by a person who has no reason to represent the interests of the recipient;
• if the donee signed the document without the consent of his parents;
• there is no consent of the spouse of the home owner;
• there is no notarization when a share in an apartment is given as a gift;
• the residential premises are pledged;
• there is a fact of pressure on the homeowner.

All these circumstances may serve as grounds for declaring the transaction void. Moreover, this is revealed already at the stage of submitting documents to the Rosreestr authorities. During reconciliation, the registrar will accurately determine all violations.

Pros and cons of a gift agreement

If you decide to draw up a deed of gift for a child, think about whether your gift will become a subject of contention and misunderstanding in the future.

Possible risks

Let's summarize by answering the question: is it possible to issue a deed of gift for a minor child? Yes, it is possible, but a deed of gift involving a person under 18 years of age has some nuances.

1. Firstly, actions with property can be “frozen”, and this despite the fact that property taxes will have to be paid regularly.
2. Secondly, there is a risk of new applicants appearing in the form of legal heirs.

In such transactions, it is better to contact a notary. Certification from a notary office will protect the young owner from further claims and protect his rights.

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Lawyer's answers to frequently asked questions

I want to give my five-year-old niece an apartment. Should I include my niece's details in the contract?

The agreement on the part of the donee must indicate one of the parents acting in the interests of his young daughter. And the parent of the donee will sign the agreement, but your niece will become the owner of the apartment.

I decided to give the apartment to my sister. We would like to draw up a donation agreement with a notary. The cost of the apartment is two million rubles. What notary fee will I need to pay?

Since the gift is worth up to 10 million and you are not close relatives, the calculation will be according to the formula:

7000 + 0.002 × (2,000,000 − 1,000,000) = 9,000 rubles.

I will give the apartment to my granddaughter. I have no other place to live. Can I live in an apartment after signing a donation agreement?

You can stipulate this point in the contract. However, when your granddaughter decides to sell or rent out the apartment, it will be difficult for you to prove your right not to leave.

If you want to transfer your apartment to your granddaughter, and in return receive care and support in old age, draw up a rental agreement with lifetime maintenance. If you are thinking about such an agreement, fill out the application form below or write to the specialist on duty on the website and get advice on your issue completely free of charge.

Taxation on transactions

In accordance with paragraph 18.1 of Article 217 of the Tax Code of the Russian Federation, when receiving cash or in-kind income, the recipient is obliged to pay tax. Minors have no income, but they are not responsible for paying tax rates, but their adult representatives. Therefore, when receiving real estate as a gift, the parents of a gifted child are required to calculate and pay tax on the income received.

The tax is paid no later than April 30 of the year following the reporting year.

When transferring property between close relatives, taxation does not apply.

List of documents

It is important to know what documents are needed to transfer an object as a gift.
The list includes:

• passports of legal representatives;
• birth certificate of a minor;
• permission from the guardianship authorities if another relative is present during the procedure;
• power of attorney from a representative of the guardianship authorities (if he is involved);
• notarial permission of the legal representative to make a donation;
• title papers for the object;
• a report assessing the value of the gift;
• extracts from the BTI upon transfer of real estate.

The list of documents may vary depending on the object being transferred and the age of the child.