Definitions of deed of gift and will
A deed of gift is a gift agreement in which there are necessarily two parties - the donee and the donor.
As a result of concluding a gift agreement, the donor transfers the property free of charge to the recipient, regardless of whether he is a relative or not. A will is a unilateral agreement or expression of the will of a citizen (testator), which decides how and by whom his property will be used in the event of death. In this case, heirs are indicated, including those without family ties.
How to issue a deed of gift
The legal confirmation of the transaction is the gift agreement. The paper is compiled in any form. Information that must be indicated in the document:
- passport data of two participants in the procedure - the recipient and the donor;
- a detailed description of the conditions under which the apartment is transferred for free use. If there are no requirements for the recipient, this must be indicated;
- a paper confirming the fact of ownership of the apartment that is subject to donation;
- signatures of all parties to the transaction.
Note! The donation agreement is drawn up in triplicate. Two are with the interested parties, the third is with the notary who certified the transaction.
Unlike a will, a deed of gift must be registered.
Take all three agreements to the federal registration office. Attach accompanying documents:
- passport of the donor and recipient - copies;
- apartment ownership agreement;
- technical passport for the transaction object;
- house book;
- if the donor was married at the time of purchasing the apartment, the consent of the second spouse.
Legal information! If the apartment has several shared owners, in order to donate it, the consent of all owners will be required - in writing, certified by a notary.
To formalize an apartment donation agreement, you need to pay a duty fee through the MFC.
Differences between deed of gift and will
Let's compare the documents on a number of provisions.
1) Duration of registration:
Deed of gift. Time to draw up a contract. Notarization is not required. The agreement is signed by the parties, and the state fee is paid. Prepared documents are submitted for registration. According to the law of the Russian Federation, the procedure for registering a deed of gift should last no more than two and a half weeks.
Will. The procedure for registering an inheritance begins only after the death of the testator. A certificate of inheritance can be obtained from a notary after six months. It is necessary to register ownership with the relevant government agencies.
2) The moment of receiving the property into ownership:
Deed of gift. The donee receives such a right immediately after registration of the right. That is, it begins to fully own the property during the life of the donor.
Will. The heir under the will becomes the owner of the property no less than six months after the death of the owner.
3) Possibility to change or cancel the contract:
Deed of gift. A gift agreement implies a transaction that is very difficult to cancel. You can challenge a deed of gift in court by proving the donor’s incapacity or signing the agreement under pressure and force.
Also, the gift agreement can be canceled if the donee:
- made an attempt on the life of the donor, the life of one of his family members or close relatives, or intentionally caused bodily harm to the donor;
- treats a gift that is of great non-property value to the donor in such a way that creates the threat of its irretrievable loss.
Will . The will can be canceled (changed) at any time or another will can be added to clarify the details: the inheritance can be redistributed among other heirs.
4) What do we pay for when registering:
Deed of gift . We pay the state fee. We pay for drawing up the contract. If we certify it with a notary, then - for certification. Will. Notarization fee is required. An interest rate is paid for issuing an inheritance document (from 0.3 to 0.6%).
5) Payment of taxes:
Deed of gift . The gift tax is 13% personal income tax on the value of the inheritance. It is paid by the donee if he is not a close relative of the donor.
Will. Not paid.
6) Possible problems:
Deed of gift. The donor has virtually no leverage over the donated property. For the donee, this is a definite plus, since he becomes the owner of the property immediately after registration.
Will . Regardless of the will of the testator, part of his property may pass to relatives who, by law, have the right to inherit. These are elderly parents, disabled people and minor children.
Registration and acceptance of a will
In any case, the will is executed with the help of a notary, but it is worth knowing the basic requirements of the law:
- the will of the testator must be formulated as clearly as possible in order to avoid the emergence of controversial situations;
- the testator must specify the size of each share of the inheritance and who will own it. Expensive indivisible objects (apartment, real estate or car) can be sold, and the resulting funds are distributed into shares;
- it is worth indicating the second line of heirs in case the first renounce their right or are unable to accept it in the event of death;
- an optional condition is the use of institutions such as testamentary assignment or testamentary refusal. In these cases, the testator may oblige the heirs to perform certain actions at the expense of the estate. These actions can be both material and intangible (for example, transferring part of the property to another person or implementing socially useful purposes).
IMPORTANT !!! After the opening of the inheritance, all heirs are called upon to inherit in accordance with the provisions of the will. Separately, it is worth considering the transfer of rights to an apartment or other real estate. Any real estate is subject to mandatory state registration and without this, ownership rights cannot arise.
The possibility of registering the heir's rights to an apartment by law or by will will arise only after appropriate registration. Six months after the opening of the estate, it will be possible to receive a document with which you need to contact the state body. authorities. After completing the standard procedure for re-registration of property rights, the heir will receive a legal document.
Registration costs in numbers
Donation:
- state duty - 2000 rubles;
- The gift tax is 13% personal income tax on the value of the inheritance. Close relatives are exempt from paying tax.
If the deed of gift is issued through a notary, then the following are additionally paid:
- drawing up a contract - from 2000 rubles;
- state duty for notary services - in accordance with Art. 22.1 “Fundamentals of the legislation of the Russian Federation on notaries” (approved by the Supreme Court of the Russian Federation on February 11, 1993 No. 4462-1).
Will:
- certificate of will - 100 rubles;
- opening an envelope and reading a closed will - 300 rubles;
- conducting an inventory of inherited property (for taking measures to protect the inheritance) - 600 rubles.
For issuing a certificate of inheritance:
- children, including adopted children, spouse, parents, full brothers and sisters of the testator - 0.3% of the value of the inherited property, but not more than 100,000 rubles;
- other heirs - 0.6% of the value of the inherited property, but not more than 1,000,000 rubles.
Which is better: a will or a deed of gift?
A will is safe for the testator, since he can change or supplement the document at any time. A deed of gift is the most profitable transaction for the donee, since it is very difficult to challenge a deed of gift. In the case of a will, the property belongs to the testator until death, and the heirs are one way or another forced to maintain relations with the testator. When preparing a deed of gift for the donor, there is a risk that the new owners of the property may “forget” about it immediately after signing the gift agreement.
It is important not to forget that when making a will, the heirs will have to share the property if the testator has children under 18 years of age, disabled people, dependents, or retired parents who also have the right to a share in the inheritance.
Donation or bequest - what's the difference?
Most people have little understanding of the difference between inheriting and donating real estate. However, from a legal point of view, these procedures are completely different. Let's try to figure out what the differences are.
Both the transaction process and the legislative nuances are different in each case.
A deed of gift is a legal document, upon completion of which the owner of property values transfers them to another person for permanent and free use.
A will is a legal act that reflects the posthumous wishes of the testator in relation to the further ownership of his personal property. The document has legal force only after notarization.
What is cheaper: drawing up a deed of gift or a will?
The following nuances must be taken into account: when registering a gift of property to a person who is not a relative of the donor, according to the law, a tax must be paid;
According to the will, such tax is not paid. Therefore, for the heirs of the first and second order, the question of which is cheaper does not matter. The first and second stages of heirs include:
- husband or wife;
- parents;
- children;
- parents who adopted children;
- children who are adopted;
- grandparents;
- grandchildren; siblings, children who have the same father or mother.
For the remaining heirs, it will be more profitable to draw up a will.
In fact, what is better and cheaper depends on the specific situation of the availability of property and its value. There is no clear formula for answering this question.
In my opinion, it is more profitable for the testator to draw up a will.
A will can be revoked or radically changed. From a legal point of view, only the last expression of a person’s will comes into effect. Also, the property remains at the complete disposal of the testator until the end of his life. The heir will receive ownership of the property only after the death of the testator. It is better for the heir to draw up a deed of gift. It is almost impossible to challenge a gift agreement and the property automatically passes into the possession of the recipient. He has the right to dispose of the property immediately after registration of the agreement.
Important! Challenging both a will and a deed of gift in court is equally difficult. To do this, you will need to prove the legitimacy of the facts cited in the claim. It will be necessary to undergo a medical examination, collect testimony from witnesses, and evidence in the case. And it is advisable to hire a lawyer.
In this article, I discussed the main differences between a deed of gift and a will, the pros and cons of each document.
I hope the information provided will be useful and will allow you to make the right decision about what is better in your situation: a will or a deed of gift.
Is spousal consent required?
A husband and wife who are legally married can dispose of common property only by mutual consent.
The transfer of property jointly acquired by spouses to another person without the knowledge of one of them is impossible and can be challenged in court.
You can donate or bequeath property without the other half only in 2 cases:
- The property was acquired personally by one of the spouses before the official marriage.
- The property transferred to another person was received through a gift.
In other cases, the spouses must jointly decide on the transfer of property, or one of them can bequeath his share of the joint property.
Which method of transferring property is better and more profitable depends on specific circumstances. Each of the above documents has its own characteristics, pros and cons.
Important information! Property can be bequeathed, donated or received only in accordance with current legal regulations. All legal aspects of the transfer of property, through donation or will, are outlined in the Civil Code of the Russian Federation.
