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.
How to make a deed of gift for different types of property
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In addition to the apartment, children are given ownership rights to:
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- Real estate shares;
- Home;
- Land allotment;
- Movable property (vehicles).
If the donor owns an allocated share of property, he can give it to his children (Article 250 of the Civil Code of the Russian Federation). The permission of the owners of the remaining shares is not required. Alienation of part of the share is also practiced. A special feature of the agreement is the preliminary division of shares in BTI.
Fact
You can view the form for the donation agreement for a share of the apartment here.
Giving a house or land is similar to giving other real estate. The differences will be in the taxes that the legal representatives of the minor will have to pay before turning 18 or after the emancipation procedure.
Registration of a car to a new owner takes place not at the registration chamber, but at the traffic police department. A child can become a full-fledged owner, but the right to drive and other operations with a vehicle are available only upon their 18th birthday. Taxes and maintenance of vehicles are the responsibility of parents or guardians, which is reflected in the gift agreement.
Form of gift agreement for a minor
When a child is a giver
A minor can act as a donor of his property, but for this he will have to obtain the permission of his parents and guardianship.
Articles 37 and 292 of the Civil Code of the Russian Federation oblige the board of trustees to monitor the illegal alienation of owner rights by small citizens. If the decision is positive, the agreement is also signed by the guardians, regardless of the age of the son or daughter. If there is a violation or threat of violation, the transaction will not be allowed. In addition, there are other cases where a contract is declared illegal.
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.
Possible risks
Let's summarize by answering the question: is it possible to issue a deed of gift for a minor child? Yes, it is possible, but a deed of gift involving a person under 18 years of age has some nuances.
- Firstly, actions with property can be “frozen”, and this despite the fact that property taxes will have to be paid regularly.
- Secondly, there is a risk of new applicants appearing in the form of legal heirs.
In such transactions, it is better to contact a notary. Certification from a notary office will protect the young owner from further claims and protect his rights.
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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.
Rights and obligations
Often, real estate is given to minors by their parents. This move allows you to ensure the future of the child and at the same time avoid a number of other problems, such as seizure of property. When signing a deed of gift, the rights and obligations of the parties change, depending on who the donor was.
When transferring real estate, the donor loses the right to dispose of the property.
Before conclusion
Before donating an apartment, the owner can:
- sell the premises;
- exchange it;
- to rent;
- bequeath to others;
- dispose of it in a different way.
In addition, he can register in his own living space. If desired, the owner has the right to register relatives or strangers in the apartment. If necessary, the owner has the right to demand the eviction of registered non-owners (is it possible to donate an apartment to a registered person?).
After signing the deed of gift, all listed rights are canceled.
The child has the right to be registered in the donor’s apartment, provided that he is his parent. Having registration allows him to live in the premises on a general basis.
After conclusion
As soon as a real estate donation transaction is registered with Rosreestr, the donor is deprived of his rights as an owner. From this moment on, he must completely vacate the premises and deregister at this address. Exceptions are made to the general rule for the parents of the recipient. They are required by law to live with the minor and therefore remain registered at this address.
The child owns property only on paper. He cannot dispose of the received apartment. It is extremely difficult to sell, donate or exchange such premises. Moreover, neither the young owner nor his legal representatives can do this.
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.
Transaction options
Agreements concerning real estate are always drawn up in writing with subsequent registration of rights. You can draw up the paper yourself or through a notary.
Self-registration
If the essence of the transaction is to simply transfer the apartment without encumbrance to the child, you can draw up the document yourself. To do this you need:
- Draw up an agreement with the participation of the donor, the recipient and his parents or guardians;
- Collect a package of documents for the apartment, as well as the participants’ passports, birth certificates and powers of attorney if a representative of a daughter or son acts instead of the parents;
- Submit an application for re-registration to the MFC or the Cadastral Chamber at the location of the gift;
- Pay a state fee of 1000 rubles;
This is also important to know:
How to draw up a deed of gift for an apartment in Crimea
After submitting all documents and receipts, re-registration as a minor will be carried out within 10 days. The child is not related to the donor? The parents of the tomboy will have to pay 13% personal income tax on the property alienated in his favor.
At the notary office
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Any parent accompanies the child to the notary office. The notary's signature and seal on the deed of gift is his personal guarantee of the correctness of the document and the verification of all title documents. The cost of registration increases and includes drawing up an agreement with registration with government agencies in the amount of 3,500 rubles.
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Additionally, a notary office fee is paid, which is calculated based on the value of the object of the contract (0.3-0.5%). Close relatives as donors exempt the legal guardians of the donee from income tax of 13%.
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:
- Civil Code (chapter “Donation”).
- Tax code.
- 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
Can a minor dispose of property himself and why?
A child cannot dispose of property until he reaches adulthood. This rule fully applies to the donation procedure. Even with the consent of his representatives, he does not have the right to give his own share to another person, since this directly violates his legal rights.
Most often, accumulated property remains in the family by inheritance, or is given to loved ones as a gift. Which is better, a deed of gift or a will, how to conclude an agreement with the right of lifelong residence of the donor and draw up a deed of gift between spouses - you will find answers to these and other questions on our website.
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.
Costs of the gratuitous alienation procedure
Making a deed of gift will have to involve financial expenses on the part of the representatives. In this case, the donor himself may express a desire to bear any costs, indicating this in the contract.
The deed of gift assumes:
- Fees for notarization of a transaction (0.3-0.5% of the value of the gift);
- State duty for re-registration in Rosreestr (2000 rubles);
- thirteen percent contributions to the state treasury if non-relatives are involved in the agreement;
This is also important to know:
Land donation agreement
It should be remembered that the participation of a notary guarantees verification of the legality and a competently drawn up document, but is not mandatory for the transfer of a gift. Contacting the office is required when certifying the consent of the spouse when alienating jointly owned housing, as well as when making a shared contribution.
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.
Tax payment
When an object is donated, the recipient will have income.
Its size is determined based on the market value of the property. The fee is 13% of this amount if real estate or a vehicle has been transferred. Even if the gift is made in favor of a minor, tax must be paid. In accordance with paragraph 3 of Art. 28 of the Civil Code it is submitted by a legal representative.
Attention! Close relatives are exempt from taxation. There is no need to pay a fee if the apartment was transferred by parents or grandparents.
Property tax is also paid. In accordance with Article 406 of the Tax Code of the Russian Federation, the amount will be from 0.1 to 2% of the cost of the object.
Review of documents by Rosreestr
First, a package of documents is generated. It includes the following papers.
- Donation agreement.
- Documents for identification of the donor, as well as a passport or birth certificate of the recipient of the apartment.
- Documents that are of title to the person making the donation will need an extract from Rosreestr.
- Completed cadastral documents; you will also need a technical passport for this apartment.
- A certificate received from the housing administration or an extract made from the existing house register about everyone registered in a given living space.
- If the cadastral value has not been determined, you need a document confirming an expert assessment of the transferred housing.
Additionally, permission from the co-owners may be required to conduct the transaction, and permission from the guardianship authorities if there are other minor residents in this apartment.
Documents are submitted to the local branch of Rosreestr and reviewed within ten calendar days. After this, the originals of the submitted documents and a new certificate from the Unified State Register are returned, indicating a change in ownership.
Independent registration of deed of gift
The law does not contain a requirement for mandatory notarization of an agreement on the transfer of a gift, including real estate. Therefore, if the parties to the agreement are limited in material resources, they are quite capable of independently completing the transaction in simple written form and registering it with Rosreestr, provided that real estate is being donated.
When drawing up an agreement yourself, it is necessary to describe its essential terms, without specifying which the latter will be considered unconcluded. For an agreement to transfer a gift, the only essential condition is its subject matter. An object is something that the donor gives as a gift and the recipient accepts as a gift. It is necessary to describe in detail the individual characteristics of the object of donation by which it can be identified, as well as the data of the donor and the recipient.
When preparing a deed of gift yourself, it is recommended to consult with a professional lawyer.
