Gift deed or will: what to choose?

A deed of gift, or gift agreement, is an agreement between two parties confirming the gratuitous transfer of property, including money. The right of transfer is regulated by Art. 32 of the Civil Code of the Russian Federation.

In most cases, the agreement is concluded between close relatives. If the parties to the agreement are strangers, the acquirer of the property must pay a tax in the amount of 13% of the monetary value of the subject of the agreement.

A gift agreement concluded in simple written form must be registered with the Rosreest authorities. Notarization is optional, but can be performed at the request of the parties.

Features of the document

The transaction is free of charge. The donor has no rights to the property, and the recipient has no obligations. If there is a counter transfer, such a procedure cannot be classified as a gift transaction. Both parties must be legally capable, the recipients can be both adults and children, and the donors can be children from 14 to 18 years old, if the amount of the money donation agreement does not exceed their income, for example, a scholarship. The agreement between minor children is signed by their legal representative.

The deal has a number of nuances:

• before concluding an agreement, it is necessary to obtain the consent of the recipient, since he has the right to refuse the property;
• incorrectly executed documents are returned by Companies House to correct errors;
• the agreement concluded with the condition is not registered, the transfer of ownership does not occur;
• The spouse's consent to donate money is not required. But lawyers recommend obtaining notarized consent at the stage of registration of the deed of gift in order to avoid problems in the future;
• the deed of gift cannot contain a targeted indication of the use of funds, for example, for the purchase of an apartment, since the new owner has the right to dispose of them at his own will.

The document states the following points:

• item;
• details of the parties;
• their rights and responsibilities;
• general provisions, for example, on a peaceful option for resolving controversial issues;
• signatures.

Theoretically, a money donation agreement between close relatives can be challenged, but if the document is drawn up correctly, it is almost impossible to invalidate it.

Important points:

• A drawn up and signed money donation agreement cannot be changed. This differs from a will, which can be rewritten as many times as desired;
• the deed of gift cannot be transferred to another person;
• the document cannot be revoked, so the donor must carefully consider his actions;
• a deed of gift that is not finalized during the life of the donor cannot come into force after his death.

Taking into account the described nuances, it is better to draw up a deed of gift with the help of a notary.

Option No. 1: gift agreement

A gift agreement allows you to give the donee the right of ownership of property in advance.
But for this, the donor must be the sole owner of this property. If the property is in common shared ownership (a share in an apartment, a room, part of a house), then it can also be donated. Unlike a sale, when donating a share, other co-owners do not have a pre-emptive right, which is provided for in Art. 250 Civil Code of the Russian Federation. That is, the donor is not obliged to inform the co-owners that he intends to donate his share to a third party. It is also not necessary to offer co-owners a “buyout” of the share, as in the case of a sale.

However, there is a nuance: if the co-owners can prove that there was an actual sale of property under the guise of a gift, then the transaction will be considered void and each party will have to return everything back to each other: the donor - money, the donee - property.

But the biggest risk for the donor is that after registering the transfer of ownership, he no longer has rights to his property. This needs to be clearly understood. Therefore, if housing is the only one, you need to seriously think about the fact that there is a high risk of remaining on the street. In this case, you should not count on the integrity of the recipient, even if he is a close relative.

If the decision is made, then you can reduce the costs of completing the transaction. It is permissible to draw up a gift agreement yourself and not have it certified by a notary.

ConsultantPlus experts have prepared a donation agreement template for you. , having received trial access to the K+ system, and fill in with your data.

When concluding a gift agreement, you will only need to pay a state fee for registering the transfer of ownership. The amount of the state duty is established sub-clause. 22 and sub. 23 clause 1 art. 333.33 of the Tax Code of the Russian Federation and amounts to:

• for an individual - 2000 rubles;
• for state registration of a share in the right of common ownership of common real estate in an apartment building - 200 rubles.

If the donee is a close relative, then he does not need to pay 13% personal income tax on the value of the property received as a gift. If he is not a close relative, you will need to pay 13% of the cadastral value of the apartment or house to the budget.

Advantages of notarization

Notarization confirms that the transaction occurred between legally capable persons. Certification of the fact of transfer of money will prove the validity of the document when trying to challenge it in court. Sometimes such conflicts arise between relatives if someone feels deprived.

Additional benefits:

• guarantee that the agreement is drawn up correctly and there are no problems with registration;
• choosing the most appropriate form of gratuitous transfer of money for a particular case. The notary professionally evaluates various situations and offers the optimal solution;
• clarification of the rights and obligations of the parties to the transaction.

In our notary office, you can draw up and certify a gift agreement without days off. The list of required documents can be found by calling.

Results

Both options—a will and a gift deed—have advantages and disadvantages. Each situation requires individual consideration. Which option to choose is influenced by many factors (whether this is the owner’s only home, the trustworthiness of relatives, how wide the circle of heirs is, etc.). It should be remembered that when making a gift, the donee has the advantage, and when making a will, the maker of the will is protected.

Find out how property tax is calculated and paid in our “Property Tax” section.
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Price

UPTH is a legal technical work approved by the Moscow City Notary Chamber.

Who is not subject to inheritance and gift taxes?

There is a category of citizens who take ownership of property under a gratuitous agreement and do not pay tax. After certification of the deed of gift by a notary, information about the transaction is transferred to the tax authorities, for which 15 days are allotted. After this period, the receiving person pays a percentage of the value of the donated property. Since 2006, changes in legislation have come into force, exempting from this.

Benefits apply to the immediate relatives of the donor or testator. A state fee is paid, but no tax is provided. However, if the expression of will was formalized before 2006, this rule is excluded, since the transaction entered into legal force from the moment of approval, which means that you need to build on the laws in force at that time. Successors do not pay taxes if they:

• parents (biological or adoptive);
• children (natural or adopted);
• spouses (married wives, husbands);
• brothers and sisters (siblings, step-brothers);
• grandmothers, grandfathers, grandchildren and granddaughters.

The tax should not be confused with the state duty, which is levied to pay for the work of state registration, notary, and judicial authorities.

When are successors exempt from tax?

To be exempt from paying inheritance and gift taxes, you need to confirm your status, family affinity and degree of relationship. For this purpose, relevant certificates, extracts, certificates, and passports are provided. It is important that a legal connection takes place at the time of execution of the deed of gift or will. When the dying will has not been formalized as a will, the relationship must be current on the date of disclosure of the probate by law.

Not only blood relationships are taken into account. When a child is adopted, papers are drawn up that provide the same rights as in the case of the birth of biological children. In the latter case, the parents do not have to be married. The main thing is that paternity (maternity) is documented. Unmarried cohabitants pay tax because legally they are not legal spouses, even if they have children together.

Inheritance by will

The testator can choose one or more relatives and distribute property with a clear definition of shares by drawing up a will for his inheritance in advance. Chapter 62 of the third part of the Civil Code of the Russian Federation is devoted to the procedure for registration and execution of wills. An important rule is that to confirm the legality of the will, the will must be executed by a notary. The only exceptions can be documents equivalent to notarial ones. These are:

• wills of citizens undergoing treatment in these medical institutions confirmed by the chief doctors, their deputies and doctors on duty;
• wills of persons on long voyages on these vessels certified by the captains;
• wills of military personnel of remote military units certified by commanders;
• wills of convicted persons confirmed by the heads of correctional institutions.

In addition to drawing up a will, the testator must select an executor of the document who will verify the distribution of property in accordance with the will specified in the document. At the same time, during his lifetime a person can make changes to the will for inheritance or cancel it altogether. The artist can also be re-selected.

Housing taxes by gift

A deed of gift allows you to obtain ownership of your home, which is recognized by law as one of the ways to get rich. The tax must be paid. Exceptions are cases when:

1. A deed of gift is issued between members of the same family.
2. The parties to the agreement are consuls. This right is established by the Vienna Convention concerning International Diplomatic Relations.

These exceptions are specified in the Tax Code (Article 217). Having received property by inheritance, the successor is exempt from tax, but there is a duty, the amount of which depends on the degree of relationship and the price of the re-registered property. Father, mother, husband, wife, son, daughter pay 0.3% of the cadastral or market value. All others – 0.6%. When talking about a gift, a 13 percent rate is applied according to the laws on personal income taxes.

If the recipients are not relatives

A deed of gift allows the transfer of real estate to persons of any category. The legal successor may be:

• a relative;
• an individual who has no family ties;
• legal entity (commercial and non-commercial);
• government structure, body.

The same classification is applicable when drawing up a declaration of will. If there is no will, the apartment, house, garage, dacha, land plot is divided according to the law. The applicants are people from seven lines consisting of relatives. The eighth category includes dependents who were provided for by the testator before his death. Everyone except the first-priority heirs, for whom the state duty is 0.3%, pays 0.6%. The gift deed involves a tax of 13% of the price of the object (for citizens of the Russian Federation).

The necessary conditions

To become an owner on the basis of a deed of gift, it is enough to present your passport, appear at the notary’s office together with the donor, and sign in the appropriate boxes. There is also a fee for registration in Rosreestr. The inherited living space is transferred to the heir who:

1. Proved that he is one of the legal heirs (first among relatives).
2. Indicated in the text of the will as the main legal successor.
3. Is a sub-designated heir (if the main one died or refused).
4. Attached evidence allowing you to claim the obligatory share.

But there are also some nuances here: if there is a desire to sell the inherited apartment, a tax will be assigned according to the approved rate.

Who considers situations with orphans under 18 years of age?

Minor citizens are deprived of the right to sign legal documents, so their parents or legal representatives take over their property. They maintain the property until their wards come of age. This applies to deeds of gift and inheritance. But what to do if the beneficiary is an orphan? When a charitable act of goodwill is expressed in the execution of a gift for a child who has no parents, the institution where the heir is located is responsible for everything.

Often the tax rate determined by the Federal Tax Service is too high for the recipient to pay. In this case, the guardianship and trusteeship authorities are involved. The director of the shelter and the official guardian have similar rights. If the donor encounters resistance, he can contribute the tax amount himself.

Benefits for close relatives

Exemption from personal income tax is a standard procedure. But the tax itself is paid when the re-registration is made on the basis of a deed of gift. Acceptance of property in an inheritance case requires payment of a state fee. In both cases, immediate family members are exempt from duty, or its amount is reduced. Thus, the state duty is reduced from 0.6 to 0.3%. Gift tax is completely excluded.

List of categories of preferential taxpayers

Heirs for whom the duty is reduced are spouses, children, parents. In the case of a deed of gift, beneficiaries also include sisters, brothers, grandparents, and grandchildren. There are several features. Not only people with biological kinship are endowed with such a right. Persons who have been adopted, as well as the adoptive parents themselves, have the right not to pay taxes in accordance with current legislation.

What documents prove relationship?

If, when registering a deed of gift, kinship does not matter, and to re-register valuables, a passport is enough, then in the case of a call to inheritance by law, the situation becomes more complicated. The will also indicates a successor - not necessarily a natural one. But when the time comes to make claims to the inherited estate, in addition to the death certificate of the testator, you have to present:

1. Passport to confirm your identity.
2. Marriage certificate valid at the time of disclosure.
3. Birth certificate as proof of the son-father-daughter-mother relationship.
4. Adoption papers issued by the court or guardianship authorities.

Distant relatives must confirm connections with the testator. A deed of gift with a passport is a sufficient set to re-register valuables in your name and dispose of them at your own discretion.

If the deed of gift is in the name of a foreign citizen

Disposing of legally acquired property is the inalienable right of every citizen of the Russian Federation. Whether it is a deed of gift or a will, no one will prohibit specifying a citizen of another country as a legal successor. Without a deed of gift or expression of will, when the inheritance is transferred by law, the recipient can also be a non-resident. However, the Russian tax system for foreigners sets an increased rate - 30% (for a gift).