Inheritance of an apartment under a deed of gift after the death of the donor

Real estate is a valuable asset. Therefore, owners often think about who will get it after their death. The most enterprising copyright holders resolve issues related to real estate in advance. There are a lot of legal mechanisms for transferring an apartment or house into the possession of another person. The most popular way is to draw up a gift deed. Here the question arises: is the deed of gift for the apartment valid after the death of the donor. In our article we will look at the rules for drawing up this agreement.

The concept of deed of gift

A deed of gift is a document according to which the donor transfers real estate or a valuable thing for free use to the donee. Features of donation transactions are regulated by Ch. 32 Civil Code of the Russian Federation:

• The procedure must be previously agreed upon by both parties. They need to agree on what exactly will be donated, on what day they will conclude the donation agreement and have it certified by a notary.
• The recipient has the right to refuse the gift. If a deed of gift was issued for it, the refusal is also drawn up in writing.
• 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.
• If real estate is transferred as a gift, the agreement is registered with Rosreestr in the presence of both parties.

Important! The donor may cancel the gift agreement at any time if the recipient has made an attempt on his life and health or on his relatives. If the court finds that the cause of death was the criminal actions of the donee, the agreement is also canceled, and the previously donated property is distributed among the heirs of the deceased.

The entire donation procedure is as follows:

1. The parties agree on when, where and what will be given, when and with which notary they will conclude the agreement.
2. A state fee is paid for certification of the contract. If the notary is also involved in its preparation, an additional notary fee is paid.
3. The donee and the donor come to Rosreestr if the subject of the gift is real estate. There documents are submitted to register ownership.
4. A few days later, the donee visits Rosreestr to receive an extract, where he will be indicated as the new owner.

Gift design features

Situations when a person wants to give real estate to close relatives happen quite often. It is for this purpose that in the Civil Code of Russia there is Chapter 32, which regulates all relations of the gift agreement. Thanks to the deed of gift, it is possible to donate your possessions, avoid unnecessary costs, and the transaction will be carried out in accordance with all legal aspects.

A deed of gift is a transaction made with property, it involves:

• donor – a person who wants to donate his property;
• recipient – ​​the person who receives the gift.

The whole transaction is aimed at transferring one’s property as a gift from the donor to the donee, and this should happen on the basis of gratuitous use.

What needs to be indicated in the document:

• all parties to the transaction, all information about them, contacts, as well as the characteristics and responsibilities of each member of the agreement;
• the property being converted into a gift, a description of the property and the address of the actual location;
• the date on which the transaction is executed;
• emergency situations.

The gift agreement is valid for one year; if during this time the recipient has not registered his rights to the property, the transaction is considered invalid and subject to termination.

Agreements of this type are considered gratuitous and are concluded irrevocably. Only situations enshrined in Russian legislation are legal for terminating a transaction.

Functions of deed of gift

The main task of the deed of gift is to formalize the donation transaction. Thanks to it, the new owner of the property will be able to fully use it and, if necessary, confirm that the gift was purchased legally.

Many people do not know which is better - a deed of gift or a will, and also mistakenly assume that the gift agreement can indicate the possibility of transferring real estate into ownership only in the event of the death of the donor. A document containing such a condition is considered void.

There is a fundamental difference between donation and inheritance: in the first case, the transfer of ownership is possible only during the life of the owner, and in the second, property is distributed only after his death.

Important! You can get an answer to one more question - if there is a deed of gift, is it necessary to enter into an inheritance - in the Civil Code of the Russian Federation. It clearly states that when the donee manages to transfer the property to himself under a gift agreement, it becomes his full property, so entering into an inheritance is relevant if he is included in the circle of legal successors and other things that do not belong to him are inherited.

What documents are needed for donation?

To draw up a donation agreement for housing, you will need the following documents:

• Title document;
• Technical certificate;
• Home Book;
• Passports of the parties;
• Consent of the owner's spouse to the transaction.

If the owner cannot independently deal with registration issues, he can entrust this function to his representative - a person by proxy.

Important information! If minor children are registered in the residential premises that will be donated, then permission from the guardianship authorities must be obtained to conduct the transaction.

Inheritance procedure

According to the law, inheriting an apartment using a deed of gift is impossible due to the fact that this document involves the transfer of ownership only during the life of the donor. If a gift agreement was drawn up but not registered with Rosreestr, the property indicated in it as a gift passes into the general inheritance estate.

If we are talking about a deed of gift for an apartment after death, when it was drawn up and registered properly, then subsequently the heirs will not be able to claim it - the property will belong only to the gifted person.

Thus, inheritance under a deed of gift is impossible. To transfer real estate to inheritance, the testator must draw up a will. There is another option - entering into inheritance by law. There are significant differences between these two methods:

Another popular question is to whom the donated apartment is transferred after the death of the donee. According to the law, this property is the full property of the gifted person, therefore, in the event of his death, the right to it arises from the heirs. The donor's relatives cannot claim it.

Let's look at a detailed example:

Ignatov O.L. gives the house to his friend N.N. Maksimov. The transaction was completed on June 16, 2017, 2 days later the parties submitted documents to the MFC to re-register ownership. Maksimov received an extract from the Unified State Register on June 25, 2017, and a week later he dies. He is survived by his wife and child – they receive this property by inheritance. Alferov E.V. cannot claim it, despite the fact that the house was originally bought with his money - there is a deed of gift, and the property legally belongs to the Maximov family.

Mandatory heirs

Any owner of property can bequeath it to those citizens to whom he decides himself. But his right is limited by one important circumstance.

The law defines the category of persons who have the right to receive a share in the inheritance of the deceased, despite his last expression of will.

List of persons who have the right to receive a share in the inheritance.

“Compulsory heirs”, in accordance with Art. 1149 of the Civil Code of the Russian Federation are:

• Natural and adopted children who were under 18 years of age at the time of the death of the testator and the opening of the inheritance. This category also includes illegitimate children of the deceased, whose relationship was established in accordance with legal requirements;
• Children of any age classified as disabled people of groups I, II or III;
• Persons who retired due to reaching retirement age (women after 55 years and men after 60 years);
• Disabled spouse over 60 years of age or spouse over 55 years of age;
• The spouse of the deceased who is a disabled person of group I, II or III;
• Persons who were dependent on the deceased for at least one year before his death. Moreover, at the time of the death of the testator, these persons had no sources of income;
• Heirs by law who are disabled citizens;
• Other dependents who lived with the owner of the property before his death (at least one year).

How a donated apartment becomes an inheritance

Drawing up a deed of gift means that after registering the property, the former owner loses the right to it, and the new owner can independently dispose of it: gift it to other people, sell, exchange, bequeath.

The entire procedure for inheriting an apartment received by gift, from the moment of drawing up the contract to receiving the certificate of inheritance, looks like this:

1. One citizen enters into a gift agreement with another. The gifted person re-registers the property together with the donor in Rosreestr, and subsequently dies.
2. Relatives of the gifted person enter into the inheritance by submitting an appropriate application for acceptance within 6 months after the death of the testator.
3. If inheritance is made according to a will, the inheritance is received by the persons specified in it. When inheriting by law, property is distributed in equal shares among all relatives of the corresponding degree of relationship.
4. If a will has been drawn up, but there are persons entitled to an obligatory share in the inheritance, they receive it in the same amount as in the case of inheritance by law, even if this causes a reduction in the shares of other persons. You will have to share with them, regardless of the contents of the testamentary document.

Six months after the opening of the inheritance case, the notary issues a certificate of the right to inheritance. With it, the assignee goes to Rosreestr and re-registers the property in his name.

What is the difference between a gift and a will?

Quite often, citizens wish to donate their own property to close relatives, but only upon the occurrence of their own death. In this condition, it is necessary to draw up not a gift agreement, but a will. Every aspect that affects the execution and execution of a testamentary document is regulated by the Civil Code of the Russian Federation in Chapter 62.

A person should go to a notary’s office and hand-write a will, designating each person to whom he leaves his own house or land. In this case, the notary must certify this document and, upon the death of the testator, provide a certificate of inheritance to the people designated in the will.

The main nuance when drawing up a will is that the property that the heirs acquire must be certified by the testator. It should also be taken into account that the donor is considered legally capable and has reached the age of eighteen. If these points are not observed, the will is considered invalid. The person who owns the property can change the document they signed under a will.

The following differences are worth highlighting between a gift and a will:

1. Under a gift agreement, the recipient receives the right to use housing or land only after signing certain documents. According to the will, relatives are able to begin to fully dispose of the house or land only upon the death of the testator.
2. The will must be certified by a lawyer; this seems unprincipled for a gift agreement.
3. In a will, the grantor is obligated to allocate portions to certain relatives. This is regulated by Article 1149 of the Civil Code. When the agreement is signed, the donor's own property is transferred to only one person.
4. Agreement from other owners may be required at the time of signing the gift transaction. If a will is signed, the testator will not seek permission from third parties.
5. A person can rewrite a will at any time and many times. During the donation process, the agreement is written once and is not disputed.

When transferring property as a gift between close relatives, taxes are not paid. At the time of acceptance of the will, the heirs in each situation are required to pay a fee for the services provided to them.

Is it possible to make a donation after the death of the owner?

Another frequently asked question concerns what to do if there is a deed of gift - who has the right to inheritance? Here everything depends on the re-registration of ownership: if it was completed before the death of the donor, the donee is considered the owner. If there is a gift agreement and there is no registration, the property is included in the general inheritance mass, and the donee will not be able to use it.

If the owner of a home wants it to belong to a specific person only after his death, it is necessary to draw up not a deed of gift with such a condition, but a will. If a clause on the transfer of ownership only after the death of the owner is included in the gift agreement, the document is considered void.

Is it possible to challenge?

Situations when legal heirs have claims to a gift agreement are quite common. Often such cases become a pretext for consideration in the courtroom.

Many people are interested in whether it is possible to challenge a gift after the death of the donor. Considering the above arguments, the legal heirs have a valid reason to assert their rights and consider the contract invalid. This is explained by the fact that this action should be carried out only during life.

Heirs have a good chance of challenging the deed of gift after the death of the donor if the papers for ownership of the property were not completed before this fact. The date of complete transfer of ownership is the entry into the state registration authorities.

Donated apartment after the death of the donee

It is possible to return an apartment given to another person after his death only if the deed of gift contains the corresponding clause. If it is not there, the heirs of the donee will receive the property.

There is an alternative option - challenging the deed of gift through the court. This is possible if it is proven that the execution of the agreement resulted in a significant deterioration in the financial or property situation of the donor.

To understand the peculiarities of transferring ownership of an apartment by deed of gift, to whom it is inherited and other nuances, it is enough to familiarize yourself with a practical example:

Alferov E.V. owns a three-room apartment. In May 2021, he decided to give it to his daughter. He also has a son from a previous marriage. The purpose of concluding a gift agreement is to leave another child without an inheritance, because There has been no contact with him for several years.

In June 2021 Alferov E.V. dies, and his son decides to challenge the deed of gift. To do this, he goes to court, indicating that, based on the degree of relationship, he has the same rights as his sister and could have inherited the apartment if the gift agreement had not been drawn up.

The court rejected this request due to insufficient grounds for canceling the transaction, because it was committed at the will of the former owner, and the donated property was acquired by him jointly with his wife, with whom he was married at the time of death.

Other reasons for cancellation

There are many grounds that can be used to cancel a transaction. This is possible even if there were no violations on the part of the donor. So, the reasons for canceling a document may be:

1. Financial difficulties of the donor. If a person is officially declared bankrupt, he can claim his property back.
2. The contract was drawn up with errors, inaccuracies, etc.
3. The recipient was obliged to support the donor or perform other actions in return for the gift.
4. The donor was under the influence of alcohol or drugs during the execution of the document.
5. The recipient is an employee of a medical or educational institution, and the donor is a patient or student.
6. The recipient of the housing blackmailed or threatened the donor. It does not matter whether it is before or after the donation agreement is executed.
7. The recipient was irresponsible in obtaining living space and did not care about its maintenance, which led to the destruction of the apartment, a decrease in its price, etc.
8. The donor did not understand the essence of the document that was being drawn up.

Based on these facts, the deed of gift can be challenged not only by the donor, but also by other interested parties.

Is the gift agreement terminated?

Termination of a deed of gift at the initiative of the donor is carried out only in court and if there are legal grounds:

• Deterioration of the financial situation of the former owner.
• Inappropriate handling of property by the gifted person, if this threatens its destruction or loss.
• Death of the gifted person, if this clause was specified in the contract.

As for termination at the request of the donee, such transactions are not contested in court - simply re-registration of documents in Rosreestr is sufficient.

Alternative

Considering that the said agreement is not legally valid after the death of the original owner, another option is to draw up a will. In this case, the heir has every right to receive an apartment or other object after the former owner has died.

How to make a will?

The requirements for the preparation of this document are established by Chapter. 62 Civil Code. The document must be drawn up in writing in the presence of a notary certifying its authenticity. A prerequisite for the validity of a will is the citizen’s legal capacity and his ownership of property.

The procedure for challenging a deed of gift

Citizens are often interested in the question of whether an apartment under a deed of gift is disputed after the death of the donee or donor. It all depends on the circumstances of a particular case. For example, persons interested in receiving an inheritance can apply for annulment of a transaction if the real estate could be included in the inheritance mass: children, grandchildren, wives, husbands. In this case, the degree of relationship of applicants for property must be taken into account.

Important! After a divorce, a husband cannot claim his wife’s personal property. An equivalent rule also works in the opposite direction: divorce means the termination of all obligations, incl. and property, if a petition for its division was not previously submitted within the established time frame. Former spouses retain only the obligation to raise and support their common children.

Who can challenge a deed of gift

If interested parties have information about the illegality of the transaction or other grounds, they can challenge the registration of the deed of gift. The circle of such persons includes any relatives, regardless of degree (only the order is taken into account), as well as ex-wives if the transaction affects the legitimate interests of a child common to the donor.

State and municipal bodies also have the right to appeal to challenge property transactions if they have learned of a violation of the rights of minors or incompetent citizens (representatives of guardianship or social protection authorities, etc.).

Grounds for challenge

In addition to how a donated apartment is inherited and whether it can be annulled, it is important to know the grounds for challenging:

• The donor being under the influence of alcohol or drugs at the time of execution of the transaction, incapacity. According to the law, transactions on behalf of incapacitated citizens are made on their behalf only by authorized representatives. Here you will need evidence: a court decision, audio or video recordings, witness testimony.
• Concluding a gift agreement under the influence of moral or physical pressure. In this case, after examining the evidence, the court will cancel the deed of gift, and the guilty person will be brought to criminal or administrative liability depending on the severity of the act.
• Absence of written consent to the donation from the second spouse, if the gift was made out of property acquired jointly during the marriage.

Important! When going to court to challenge, you will need any evidence, even indirectly indicating the illegality of the transaction.

Grounds for recognizing a deed of gift as void

A deed of gift is considered void if it is established that it was drawn up in violation and has no legal force. This usually happens in the following cases:

• The gift agreement is filled out incorrectly: the details of the parties or the item (gift) are not indicated; content of blots and errors that significantly distort information.
• The sham of the transaction: the donation was formalized, but in fact the real estate was not registered with Rosreestr. This occurs when the donor wants to hide his property status or prevent others from inheriting property.
• Pretense of the transaction: in order to be exempt from paying state duties and taxes on income, sellers act as donors, and buyers act as recipients.

The object of the deed of gift - what can act as a gift in 2021

The object of donation in 2021 can be any property rights or benefits that are not excluded from civil circulation!

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Giving money in 2021

In addition, the ownership of an item donated free of charge must be registered in accordance with the laws in force at the time of the emergence of this ownership. This is especially true for real estate objects that have been completed or rebuilt, and their current plan differs from the previously approved one. Thus, real estate that does not comply with the documentation cannot act as an object of donation!

Lawyer's Note

We remind our visitors that a gift agreement can be not only real, but also consensual! Simply put, it can be in writing and contain a promise by the donor to carry out a transaction in favor of the donee in the future.

Also, do not forget that one of the fundamental norms when drawing up an agreement is a detailed indication in the content of the gift agreement of all the important characteristics and properties of the object of the gift, distinguishing it from other similar objects.

For example, if the gift is real estate, then, according to Part 2 of Article 572 of the Civil Code, the content should include:

• physical address of the object;
• its actual area (residential and non-residential);
• title documents for real estate, etc.

Time limits for challenging

It all depends on the specific circumstances:

• If the reason for the challenge is the bankruptcy of the donor, he is given six months from the date of execution of the contract.
• In other cases - three years from the moment the donor became aware of the violation of his rights.

If the donee exerted pressure on the donor, the period begins to count from the moment the illegal actions cease. If a citizen decided to challenge the transaction, but was unable to do so on time, he has the right to petition for the restoration of the deadlines through the court if there are good reasons why he did not appeal to challenge it in a timely manner: serious illness, living in another country, being on a business trip, lack of information on the alienation of property.

The deed of gift is issued on a gratuitous basis during the life of the donor. After his death, only his heirs can receive the property. A gift agreement with the condition of transfer of ownership only in the event of the death of the owner is recognized as void and has no legal force. If it is drawn up according to all the rules, and after registering the property the gifted person dies, his relatives will be able to transfer everything to themselves in the order of inheritance.

Trial

There is no special limitation period for filing a lawsuit after the death of the recipient. And, in theory, it is believed that the donor has the right to demand the return of the gift at any time, even 10 years after the death of the recipient. But this violates the rights of the recipient’s relatives, so when considering such cases, courts use the general statute of limitations. It is 3 years from the date of death of the owner.

If the heirs are not going to voluntarily give up living space or compensation, a statement of claim should be prepared. To do this, it is best to contact a good lawyer. Various evidence will be required, including the gift deed itself. The claim must indicate all the circumstances of the case, including:

1. Name of the judicial authority, its address.
2. Parties' data. The defendant should indicate the heirs of the deceased owner of the apartment.
3. Conditions for concluding a gift agreement.
4. Information that a pre-trial settlement of the conflict was carried out. That is, that the donor tried to return his property peacefully.
5. A list of documents that the court will require when considering the case.
6. Date and signature.

When the donor really has the right to return the living space, the court will satisfy his claim. After this, on the basis of a court decision (application to cancel the deed of gift), you should re-register the apartment in your name. If the living space has been alienated, the procedure for paying compensation is also determined by the court.

Registration of transfer of rights in Rosreestr

After concluding a transaction, the parties are required to provide the following documents to the state registration department:

1. Extract from financial personal account.
2. Extract from the house register.
3. Deed of gift (the document on the transfer of real estate is drawn up in writing).
4. Cadastral passport.
5. Extract from the BTI on the cadastral value of the donated property.
6. Documents identifying the parties involved in the transaction.
7. Receipts for payment of state duty.

After checking the above documents, Rosreestr employees issue a certificate, on the basis of which the citizen becomes the owner of the property.