How to issue a deed of gift for a minor child?

A gift agreement for a minor is drawn up in accordance with the rules provided for in Chapter. 32, art. 21, art. 26 of the Civil Code of the Russian Federation, as well as some provisions of the Family Code. To give a child a valuable item, you will need the consent of the parents, as well as compliance with a number of legal norms. Let's look at how donations to minors are made, who has the right to act as a donor, when a child signs the deed of gift independently, how to formalize everything correctly and whether taxes need to be paid.

Peculiarities of drawing up a gift agreement for a minor

Content

According to Art. 21 of the Civil Code of the Russian Federation, people acquire full legal capacity upon reaching the age of majority. Until this moment, any transactions with children are carried out with the participation of their parents or other legal representatives. The exception is marriage before the age of 18, when this is permitted: in this case, the person becomes fully capable.

• Until the age of majority, the legal capacity of children is limited, and therefore it is necessary to take into account some features of registering a deed of gift for them:
• a child from 14 to 18 years of age has the right to sign documents independently, but will need notarized parental consent;
• if the gift is not real estate and the agreement is not subject to state registration, and notarization is not required, children have the right to independently act as recipients;
• any transactions and transfer of gifts to children under 18 years of age are carried out only with the participation of parents. Briefly:
  drawing up a gift deed (hereinafter referred to as DD) for a child is practically no different from a deed of gift for an adult. It is enough just to take into account the age characteristics of the recipient. The consent of the guardianship authorities is not required for the transaction, because Here, minors do not alienate property, but acquire it.

Additional Information

A special case is donating a share of property to minors

“Is it possible to make an agreement on donating shares to children?” - many people ask these questions. In some cases, co-owners of real estate do not give their consent to the transfer of real estate. In such a situation, the donor can transfer his share to the recipient. In this case, the agreement is drawn up in a standard manner, and it is necessary to indicate that part of the apartment, house or land plot that will become the property of the child.

Form of gift agreement for a minor

Advantages and disadvantages of the agreement

You can learn about the features of the gift agreement, its pros, cons, and how to minimize risks when completing this transaction here.

A deed of gift is the best option for providing a child with real estate. The property can be used, but cannot be sold or disposed of in any other way. This restriction protects the minor owner from loss of living space.

What can you give as a gift to a child?

According to a written DD, a minor can be given any gift: real estate, land, car. For a car, an oral transfer of keys and making changes to the title is enough, but many people prefer to draw up everything on paper. Legal advice: it is better to issue a written deed of gift, even if this is not required by law. This approach will reduce the likelihood of challenging the transaction and protect the interests of both parties. Let's consider the features of giving different gifts in detail.

House or apartment

If the donor owns a house, he has the right to give it to the child. It is important to take into account that the alienation is carried out together with the land plot on which the housing is located. It will not be possible to give a separate house without land - these objects are inseparable. An apartment owned by the donor can also be donated in favor of a minor.

Land plot

If the donor owns a plot of land, he has the right to give it as a gift to the child. Together with the land, all objects located on it are alienated: buildings, structures, structures, etc.

House share and plot

If the house is in shared ownership, you can donate your share to a minor along with part of the plot. You do not need to obtain the consent of the other owners, but the DD will have to be certified by a notary.

Share in an apartment

A share in an apartment, as in a house, can be donated under a deed of sale without the consent of the other owners. An exception is the acquisition of real estate by spouses during marriage: even if the donor’s spouse is the recipient’s parent, consent will have to be obtained (Article 35 of the RF IC). The spouse's permission to alienate property will not be needed if there is a marriage contract, according to which the donated property is owned by the donor.

Important! Before donation, the share in the property right must be allocated. Despite the fact that the spouses own common property in equal parts, there is no actual division. The share is allocated by agreement, then the changes are registered in Rosreestr. Only after this can a gift deed be issued for the child.

Automobile

You can give a car to a minor and register it in his name. This is usually done to avoid paying transport taxes and fines. But such actions are wrong: according to the law, the interests of the child are represented by the parents, therefore, tax obligations are assigned to them. For non-payment, the Federal Tax Service may hold you accountable and oblige you to pay a fine. With fines for traffic violations, everything is simpler: if they were recorded by a camera, you won’t have to pay. If a traffic police officer notices non-compliance with the rules, a protocol is drawn up indicating the specific violator - it is he who will pay for everything. If a donor wants to give a car to a child as a gift, you can draw up a written DD or enter into a deal verbally by simply handing over the keys to the child’s parents and adding the minor as the new owner to the title.

Garage

A garage is classified as real estate, and the same donation rules apply to it as for an apartment or house. The DD must be drawn up in writing and registered with Rosreestr. If the garage is located in a cooperative, any transactions with it are possible only after making the last share contribution.

Donation after the death of the donor

As mentioned above, when making a gift in favor of a minor, the contract may contain suspensive conditions —circumstances establishing the possibility of taking ownership or transferring the gift only after their occurrence (Article 157 of the Civil Code).

Such conditions can only be circumstances regarding which there is no specific certainty about their occurrence and the date of their occurrence.

Guided by the possibility of specifying such conditions, many donors, pursuing different goals, mistakenly believe that a gift agreement may contain a condition on the transfer of a gift to a minor donee only after the death of the donor . By its nature, such an agreement should be considered consensual, however, based on the norms of the Civil Code, such a transaction is illegal .

For your information

According to paragraph 3 of Art. 572 of the Civil Code, if a suspensive condition is indicated in the contract about the transfer of the gift to the donee only after the death of the donor, such an agreement should be considered void. The legislator obliges to apply inheritance laws to such agreements.

It is logical to assume that by introducing this norm, the legislator deprives subjects of the right to “bypass” inheritance legislation (Section 5 of the Civil Code). In the absence of a prohibition on specifying such a condition, a disabled heir could easily lose his obligatory share in the inheritance (Article 1149 of the Civil Code).

Example

Citizen K. decided to give his minor grandson a car, for which purpose he, secretly from his new wife, who has group 2 disability, drew up a gift agreement for his grandson. Since the grandson was 12 years old, his son K., the legal representative of the grandson, M, acted on his behalf. A gift agreement was concluded between them, according to which the car belonging to K. went to his only grandson immediately after his death. Some time after the agreement was drawn up, K. died. M. immediately after the funeral began to re-register the car as the property of his minor son. Having learned about this, K.'s widow was outraged. She insisted that she owned half of the specified car, since she was disabled, and besides her and M. there were no other heirs. In order to protect her rights, she went to court. In court, she referred to the fact that she is a disabled person, which, according to paragraph 1 of Art. 1149 of the Civil Code, is the basis for receiving her obligatory half of the inheritance. In addition, she referred to the impossibility of defining it in the contract, in accordance with paragraph 3 of Art. 572 of the Civil Code, conditions for the transfer of a gift after the death of the donor. Based on this, she asked to declare the contract invalid. The legal representative of the donee (M.) did not appear in court.

Based on the foregoing, the court satisfied the demands of the widow M., recognized the inclusion of such a condition in the contract as impossible and determined the nullity of the gift agreement.

Who has the right to act as a donor?

There are three requirements for the donor: age of majority, full legal capacity and ownership of the gift. If we talk about family ties with the donee, then both relatives and strangers have the right to act as a donor.

Note! Regardless of who the donor is to the minor, it is strictly necessary to obtain parental consent for the transaction of a child aged 14 to 18 years. The mother and father, or one of them, and the other gives consent, participate in the donation on behalf of a child under 14 years of age.

Mother or father

A father or mother has the right to give any thing to their common child. If the donated property was acquired during marriage, you must obtain the notarized consent of the spouse. This rule applies only to spouses in a registered marriage. If the recipient is being raised by a single mother and there is a dash in the “father” column, there is no need to obtain permission from the biological parent.

Close relatives

According to Art. 61 of the RF IC, parents are guaranteed equal rights and responsibilities for their children, therefore, if the donor is a close relative, and the interests of a child under 14 years of age are represented by one of the parents, notarized consent to the transaction will be required from the second.

Third parties

Third parties mean strangers who are not close relatives. They have the right to give any valuables with the consent of the child’s parents or guardians.

Is it possible to issue a deed of gift for a child without a notary?

Registration of a DD for a minor without the participation of a notary is possible, with the exception of the case when a share in real estate is given as a gift.

In the above situations, the deed of gift must be certified by a notary office, otherwise it will not have legal force.

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.

Cost of notary services

When certifying the DD of real estate, a fee of 0.5% of the cadastral value is paid, but not more than 20,000 rubles. (Article 333.24 of the Tax Code of the Russian Federation). If a deed of gift is drawn up for movable property, in accordance with Art. 22.1 of the “Fundamentals of Legislation on Notaries” establishes the notary tariff: donation to children, brothers, sisters, parents - 0.3% of the transaction amount, not less than 200 rubles; other persons – 1% of the amount. A certificate of parental consent costs 500 rubles.

Legal advice! You can order a deed of gift from a notary, but this is paid separately from the tariff or fee. The cost of drawing up a document can reach 10,000-15,000 rubles. To save money, it is easier to draw up an agreement with lawyers and then visit a notary for certification. This will save 10,000-12,000 rubles. in your wallet and don’t overpay. Notaries always charge more than law firms

Let's look at an example of calculating the fee for a child's DD certificate

:
The woman decided to give the apartment to her daughter. The property was purchased during marriage. She paid her husband’s consent to the alienation of real estate 500 rubles. Payment for notarization was calculated based on the value of the gift - 5,000,000 rubles: 5,000,000 x 0.5% = 25,000 rubles. 25,000 + 500 = 25,500 rub. – total amount to be paid.

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.

How to draw up a real estate gift agreement for a minor: step-by-step instructions

• The procedure for registering a deed of gift for a child consists of several stages:
• Obtaining consent from parents.
• Preparation of documents and drawing up DD.
• A visit to a notary if certification of the contract is required or the parties decide to certify it voluntarily.
• Submission of documents for registration to Rosreestr.
• Receive a completed statement.

Let's look at each stage in detail.

Step 1

: obtaining parental consent To gift real estate to a minor, parental consent is required. If they are divorced, this does not terminate the rights and obligations of the parent who does not live with the child. According to paragraph 1 of Art. 26, children from 14 to 18 years old make transactions with the written consent of both parents or legal representatives.

Note!

If the father or mother has been deprived of parental rights, permission is not required.

At the end, the citizen and the notary sign, and the document is certified with a seal.

Step 2:

collection of documents If you plan to draw up a deed of gift from a notary, it is better to collect all the documents before drawing up the parental consent: the deed of gift can be issued at the same time.

For the transaction, depending on the subject of the donation, you will need:

Type of gift—Document

Land plot - Cadastral passport, extract from the Unified State Register of Real Estate

Apartment - Technical documentation, extract or certificate of ownership

Private house - Certificate of ownership, extract from the Unified State Register of Real Estate, documents for the land plot

Car - STS, PTS, as well as a document confirming the emergence of ownership rights of the donor

Note!

It is mandatory to provide passports of all parties to the transaction. If the child is under 14 years old, a birth certificate will be required. If another person is acting on behalf of the donor, you must take with you a notarized power of attorney.

Step 3:

registration and certification of a deed of gift by a notary If the deed of deed is drawn up independently or by lawyers, and notarization is required, you should contact a notary. It is advisable to come by appointment. The deed of gift is signed in his presence.

Features and difficulties

There are many features in giving.

For example, regarding the subject of this transaction.

On the one hand, it is the donor, that is, a person who is related to the recipient, perhaps a relative, but perhaps not.

It is also necessary to understand that the second party in this situation is a minor who cannot yet, in the full sense of the word, be responsible for his actions, and therefore, in fact, cannot independently accept the gift.

This should be done for him by his legal representatives - guardians and trustees .

Another feature of the gift is that it does not require formal registration of the contract by a notary.

All you have to do is download the contract form from the Internet and fill it out. You can also draw up a preliminary agreement yourself and then consult with a lawyer.

Notarization in this case is only your whim.

Form of agreement for donating a share of an apartment to a minor child (sample).

Contents of the gift agreement

The deed of gift contains the following information: full name, details of the donee’s birth certificate or passport, date of birth, registration address; Full name, series and number of passport, place of residence of the donor; information about the property: cadastral number, location address, number of rooms, floor, etc.; date of entry into force of the DD; rights and obligations of the parties; reference to obtaining parental consent; passport details of the parent, if he or she signs for a child under 14 years of age; signatures of the parties.

Step 4:

Submitting documents to Rosreestr Having collected all the documents and drawn up the DD, you need to submit an application for re-registration of ownership on the basis of a deed of gift. If the parties contact a notary, he can do this free of charge. When filing independently, the donor and the recipient must come to the MFC or Rosreestr. If the child is under 14 years old, one of the parents comes with the donor instead. Children over 14 years of age apply themselves.

Documentation

When visiting Rosreestr or the MFC, you will need the same documents as for drawing up the DD, but you must take with you one copy of the agreement. It is handed over to an employee of the institution to re-register ownership of the donee.

State duty

The fee for performing registration actions in relation to real estate in Rosreestr is 2,000 rubles.

Step 5:

receiving an extract from the USRN After 10 working days, you need to come to the institution at the place of submission of documents and receive a new extract from the USRN. The donee will be indicated as the owner.

By maternity capital

Property acquired under the “maternity capital” program can be gifted, but only to your child . This is evidenced by Federal Law No. 256-FZ of December 29, 2006, which regulates this program.

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About the pros and cons of a deed of gift, as well as what is better - to give or sell, or to draw up a will, whether it is possible to cancel a deed of gift or challenge it, what the law says about donating an apartment that has already been donated, is described on our website.

Personal income tax when gifting a child

If the child is a close relative of the donor, you will not have to pay personal income tax. If there is no close relationship, 13% personal income tax must be paid by the parents. The tax return is submitted until April 30. After verification, the tax is paid until July 15 of the year following the date of signing the deed of gift.

Let's look at an example calculation:

The cadastral value of the donated real estate is RUB 3,000,000. The child is not a close relative of the donor, so the parents pay the following amount: 3,000,000 x 13% = 390,000 rubles.

Note!

For non-residents of the Russian Federation, an increased tax rate is established - 30%.

Legislative norms governing the issue

When drawing up a deed of gift for a minor, you should rely on the legislative norms governing standard transactions:

1. Civil Code (chapter “Donation”).
2. Tax code.
3. Federal Law No. 218-FZ “On State Registration of Real Estate” dated July 13, 2015.

If the donor is a close relative, reduced tax rates apply. You can learn about the main nuances of registering a deed of gift for an apartment between close relatives here.

Real estate donation agreement for a minor: pros and cons

When deciding to draw up a deed of gift for a child, you need to carefully weigh the pros and cons:

Advantages:

• The child becomes the full owner of the property if it is donated
• If ownership is registered with a minor, the property cannot be seized to pay off the debt obligations of the previous owner. An exception is challenging a transaction at the initiative of a third party if it was completed less than six months before the donor filed for bankruptcy
• Simplicity and speed of registration compared to a will

Flaws:

• According to the DD, counter conditions cannot be presented to the donee
• Before the recipient reaches the age of majority, subsequent alienation of donated real estate is possible only with the permission of the guardianship authorities
• The high cost of registering a DD with a notary – it can reach tens of thousands

The legislative framework

First of all, any donation procedure is gratuitous , and the donor waives any rights to the donated real estate, which is enshrined in Article 572 of the Civil Code of the Russian Federation.

Registration of donating a plot of land for a child follows the same algorithms as for an adult.

All existing restrictions can only be related to the legal status of a minor. Such restrictions are specified in Articles 572, 573, 574, 575, 576, 577, 578, 579, 580, 581, 582 of the Civil Code of the Russian Federation. These restrictions will be discussed below.

Conditions for canceling a deed of gift

The DD can be canceled on the grounds provided for in Art. 578 Civil Code of the Russian Federation:

• commission by the donee of a crime against the health and life of the donor and his relatives;
• intentionally misleading the donor regarding the transaction;
• mistreatment of a donated item that is of non-material interest to the donor, if this entails the risk of its irretrievable loss;
• death of the donor through the fault of the donee.

The donor's creditors have the right to file an application to invalidate the deed of gift during the bankruptcy procedure if the deed of gift was drawn up six months or less before going to court. According to Art. 573 of the Civil Code of the Russian Federation, a gift is canceled by mutual consent as a result of the recipient’s refusal to accept the gift. If the DD is drawn up in writing, the refusal is issued in a similar form. When registering a new owner with Rosreestr, the refusal is also subject to registration.

Note!

Parents, guardians or other representatives by proxy participate in legal proceedings for minor children.

Paying Gift Taxes: What You Need to Know

If a legal relationship arises between close relatives, then in this case they are exempt from paying personal income tax in the amount of 13%. If the donor and the donee are not closely related, then they are obliged to pay it.

However, representatives of the donee are not exempt from paying annual real estate taxes until the child reaches adulthood. Property owners must pay it annually.

The tax rate will be 0.1% of the cost of housing. Tax notices usually arrive in the fall. Therefore, payment will be made next year.

Arbitrage practice

Typically, deeds of gift are contested by relatives of the donors, citing as grounds the donor’s misleading the recipient when signing the document, or the execution of a deed under pressure. The donors themselves also have the right to cancel the transaction. In both cases, to satisfy the claim, it is enough to provide evidence confirming the existence of grounds.

Here are some examples of decisions made in real cases where people managed to get the DD abolished through the courts:

Decision No. 2-3001/2019 2-3001/2019~M-2471/2019 M-2471/2019 dated June 27, 2021 in case No. 2-3001/2019;

Decision No. 2-492/2019 2-492/2019~M-295/2019 M-295/2019 dated June 24, 2021 in case No. 2-492/2019; Decision No. 2-5766/2019 2-5766/2019~M 0-4649/2019 M 0-4649/2019 dated June 25, 2021 in case No. 2-5766/2019.

Important!

After the DD is declared invalid, the ownership right is returned to the donor. The donee (defendant) has the right to challenge the court decision before it enters into legal force within 30 days from the date of adoption in final form.