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 procedure

The registration procedure will not take a lot of effort and money. All this is done very quickly. The document must be certified by a notary. First of all, before registration you need to pay a state fee in the amount of a certain amount. At the registrar, sign the consent of both parties.

And also attach some required papers:

1. Passports of both parties. Notarized copies.
2. Three copies of the deed of gift.
3. List of persons who are registered, registered in the living space. If this concerns an apartment, a house.
4. A document that confirms that the donor is the owner.
5. From the BTI passport.
6. Consent of wife and husband.
7. A receipt indicating that the state duty has been paid.
8. Since the child is a minor. Therefore, it is necessary to provide the latest document about the child's representative.

Register the document in writing. Otherwise, this document has no force. It is worth approaching the issue carefully. When registering, you need to look through and re-read. The deed of gift must be drawn up correctly and must be certified by the competent authorities.

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)

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.

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.

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).

Nuances to be aware of

You can even give an apartment or its share to a newborn, since in accordance with Art. 17 of the Civil Code of the Russian Federation, citizens acquire legal capacity at the moment of their birth. It is worth noting that a minor is not able to dispose of his property, since he has only limited legal capacity until he comes of age or is emancipated (from the age of 16). Also, a minor does not have the right to independently enter into a gift agreement. The direct registration procedure is carried out in the presence of a representative.

Legal representatives may include:

1. Grandparents;
2. Guardians;
3. Trustees.

It is these persons who will sign the document itself and protect the interests of their ward.

Please note: The representatives do not include the child’s parents. This is due to the fact that when concluding a deed of gift, parents are both donors and recipients (as legal representatives of the child). This is a violation of Art. 572 of the Civil Code of the Russian Federation, according to which a gift can be made between two different persons, that is, the donor and the recipient cannot be the same person.

When directly concluding a transaction, the presence of a representative and a minor is required. If the child is under 14 years old, then the transaction can be completed without his presence, since he has not yet acquired the right to sign documents. It is worth noting that a 14-year-old acquires the right to sign in a rather limited form, since he cannot fully use it on his own. Since to exercise this right you will need written permission from your legal representative, without which the signature will be invalid.

Please note: If the recipient has successfully completed the emancipation procedure - the acquisition of full legal capacity by a minor, then the child has every right to participate in the transaction independently without legal representatives.

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?

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.

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.

Information about the form of the contract

There are several situations when a contract must be drawn up in writing, regardless of the accompanying conditions.

1. Promise of giving.
   In this case, the written requirements are aimed at protecting the donee. Both parties may refuse to transfer the gift before the contract is finalized. But the recipients bear financial responsibility for such refusal. But the donors are not.
2. An agreement that is drawn up by a notary.
3. Usual agreements. For them, written form is required if state registration is required.
4. Documents describing a gift whose value exceeds three thousand rubles.

We discussed the nuances of drawing up a gift agreement for children in this material, and you can find out how to correctly draw up a gift agreement for an adult son and see its sample here.

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.

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.

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.

Gift deed for an apartment between relatives and cost of registration

The costs of registering a deed of gift consist of:

• payment for notary services for registration of a transaction. For an apartment in shared ownership, notarization is required. The amount depends on the cost of living space in the contract, the relationship of the parties and their status (citizen or organization)
• services of a notary or law firm for drafting the text of the contract. The parties can draw up a deed of gift independently if the apartment is in the sole ownership of a citizen or jointly owned by spouses
• notarized consent of the donor's husband or wife (it is required for the alienation of an apartment that is jointly acquired property). Registration by a notary, as a rule, costs no more than two thousand rubles
• state duty for registration of an agreement established by tax legislation in the amount of 2000 rubles

Most expenses are borne by the recipient. But the parties can, by agreement, divide them or transfer them to the donor. If parents give an apartment to their minor children, they pay all expenses themselves. The receipt for payment of the state fee indicates the details of the child if he has reached 14 years of age. Payment is made using his passport.

The legislator exempted donees who are close relatives of the donors from paying taxes on the property received. According to the Family Code, children and parents are close relatives. If the recipient decides to sell the share received as a gift, he will have to pay tax at a rate of 13%.

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