Which is better: a deed of gift or a will?

Sooner or later, every person is faced with the need to competently distribute acquired property between family and friends. There are two options for this: making a will or registering a deed of gift.

In general, most often real estate is inherited. Apartments and country houses have always been and will be the most “tidbits” in the inheritance. Therefore, many people are concerned with the question of how to properly manage their property, what is faster and more profitable to do: write a will or draw up a deed of gift?

What is the essence of a will and deed of gift?

A deed of gift is a bilateral agreement by which the donor transfers ownership of his real estate to the donee.

In general, the property can be anything, but we are talking specifically in the context of real estate. According to the law, there can be several donors and recipients. The deed of gift can be signed either by a close relative or by a stranger. The donee does not pay the donor any monetary reward for the donated property. A deed of gift can be issued without notary participation.

A will is an order from the owner of the property about what property, in what quantity and to whom will pass after the death of the testator.

A will is a one-sided document; often the heirs do not even suspect that after the owner’s death some property has been bequeathed to them. A will must be drawn up in the presence of a notary.

The process of registering a deed of gift

To issue a deed of gift, you need to collect a package of documents consisting of:

Personal data of persons participating in the contract. These include a passport and marriage certificate;
An agreement drawn up in writing. Each participant in the deed of gift must have a copy of the agreement. Another copy should be submitted to the Justice Department. When registering a deed of gift for a house or land, you will need two more copies;
A check confirming payment of the duty;
Cadastral document issued by BTI;
A document confirming the property rights of the donor.

If the inheritance is in the possession of both spouses, then when drawing up a deed of gift, the husband/wife must give their consent to the procedure in writing. If the housing being inherited is owned by children who have not yet turned eighteen, then you should obtain permission for the gift from the trusteeship department.

When ownership arises in both cases

When drawing up a deed of gift, the donee’s right of ownership arises immediately after registration of the agreement with the Rosreestr office. After registration, the donor loses the right to use, own and dispose of the donated property, and the donee, on the contrary, acquires all these rights and becomes the full owner of the property.

A will is a document suspended in action.

The transfer of ownership of bequeathed property occurs only after the death of the testator. At the same time, in accordance with current regulations, the heir can take ownership of the property no earlier than six months after the previous owner died. Six months after death, the will is registered in Rosreestr, and after registration, the heirs assume legal rights.

Spouse's consent when donating

The answer to this question depends on the period and grounds on which the apartment was received. If the housing was privatized or the apartment was the property of the Donor before marriage, then consent will not be required. If you bought an apartment, then it is subject to the regime of common shared ownership of spouses. When all the documents are issued in the name of one, the second spouse also has his half in the apartment. When disposing of such property, it is required to notarize the spouse’s consent to donate the apartment. In reality, when registering a contract, a notary may require such a power of attorney in any case.

Cost of registration of a gift agreement

The gift agreement can be written in simple written form or certified by a notary. From July 2021, if the donee is a minor. Notarization of the agreement is mandatory. Considering that there are many nuances in the gift agreement, failure to comply with which leads to the nullity of the document, we recommend contacting a notary. This step also insures the transaction against being declared invalid, since the notary is empowered to verify the legal capacity and independence of the decision made. Therefore, a donation agreement certified by a notary is legally stronger than one drawn up by citizens independently.

You do not pay anything for a self-drafted gift agreement, but there is a risk that the agreement will not be accepted by Rosreestr until you eliminate all the comments and bring it into compliance with the law.

The only thing you will pay is the state duty when registering the contract in the amount of 2,000 rubles. If the transaction is made between people who are not close relatives, payment of 13% of the value of the donated property as income tax is also provided.

If you prefer a notarized contract, then you will pay a much larger amount, but you will have the necessary guarantees.

The notary carries out the registration of the agreement in Rosreestr himself, so approximately 500 rubles will be added to the cost of the state duty. The total payment for registering a transaction will be 2,500 rubles (versus 2,000 with an independent approach);
tax 13% of the value of the property, if the donor and recipient are not closely related;
drawing up a gift agreement and other technical work on copying, entering passport data and other technical actions will cost applicants approximately 2,000 rubles;
The payment for the work of a notary when examining a transaction will be:
0.3% of the value of the donated property, but not less than 300 rubles for close relatives;

For distant relatives or people without family ties:

if the value of the property is up to 1 million rubles, you will pay the notary 1% of the total amount, but not less than 300 rubles;
if the property value is from 1 to 10 million rubles - .075% of the amount plus 10,000 rubles additionally;
for property value over 10 million rubles – 0.5% of the amount plus 77,500 rubles additionally;
A separate fee may be charged for assistance in collecting documents or other necessary options.

Possibility of cancellation

The legislation (Article 1130 of the Civil Code of the Russian Federation) provides the testator with complete freedom in relation to all inheritance orders signed by him. He can change them throughout his life without informing anyone or explaining the reasons.

A will can be canceled by a notary in two ways:

Drawing up a new order;
Filling out an application to renounce a will.

All forms of will have equal weight. The main rule applies: an order drawn up later cancels one written earlier. The only exception today: a will signed under emergency conditions by two witnesses does not override a notarized will, if any.

With the cancellation of a gift, things are different. The law (Article 578 of the Civil Code of the Russian Federation) allows it to be terminated by court in some cases:

If the donee intentionally caused harm to the health of the donor or made an attempt on his life or the life of his loved ones;
If in the process of using the received item there is a danger of its loss, and it is of great non-property value to the donor.

Important! If the donee dies before the donor, rights to the property may revert to the former owner. This possibility must be specified in the contract.

Cost of registration of a will

The law does not prohibit drawing up a will on your own. However, the likelihood that such a document will be challenged later is very high. Therefore, most testators seek to formalize their last will with the help of a notary. For reference, an unauthenticated will is considered valid if it was drawn up under certain special conditions:

If there is no notary in the territory, then the will can be certified by other officials:

head of the municipality;
captain of the ship;
head of the expedition;
doctor.

If all of the above are missing, two witnesses must be present for the will to be valid.

A will is considered valid if its maker is in a life-threatening situation and has drawn up the document independently and without witnesses. However, if the threat to life has disappeared, what is written must be certified by a notary. Otherwise, such a will is also considered invalid.

If your situation is standard, and you just need to designate heirs, then you have a direct path to a notary. This step will cost you relatively less than a deed of gift. However, it all depends on the value of the property.

So, the cost of registering a will with a notary:

assistance in drafting the text of a will. This action is not mandatory for notaries, therefore there is no general tariff for it. A specialist can independently determine the cost of typing and content editing services. Officially, this is called legal and technical services, and their cost varies depending on the region and the notary’s appetites, on average from 1000 to 5000 rubles;
if drawing up a will requires a notary to visit your home, then the amount of payment will increase by another couple of thousand rubles. Regional notary chambers set a maximum payment threshold for these services, but the final cost is determined by the notary himself;
The state duty for drawing up a will is paid at different rates:
When accepting a closed will – 100 rubles;
Certificate of act - 100 rubles;
Opening a closed will – 300 rubles.
for accepting an inheritance it will be necessary to pay from 0.3 to 0.6 percent of the value of the property;

Preferential categories of citizens (disabled people of groups 1 and 2, veterans and participants of the Second World War) pay half of the established state duty.

What are the dangers of unauthorized redevelopment of premises?

When improving their living conditions, many people remodel their apartments without the consent of the municipality. From a legal point of view, this leads to sad consequences, because during redevelopment the real estate itself changes. If the change is illegal, then such an object cannot be disposed of. The redevelopment will have to be legalized in a judicial or administrative manner. How will the authorities know about this? When conducting a technical inventory. If at the time of its implementation an illegal redevelopment is discovered, this is noted in the documentation... and the registration of the donation is suspended by the registrar in Justice.

When does the donee and the heir of the bequeathed property acquire ownership?

As a result of the gift agreement, the recipient's right of ownership accrues immediately upon completion of the registration actions of the Rosreestr administration.

When drawing up a will, after the death of the testator, at least six months must pass to search for all possible heirs, then the right to inheritance is certified by a notary, and only then the property right is registered in Rosreestr. Only after this (if no inheritance disputes have arisen) does the heir become the full owner of the property.

Lawyer's answers to citizens' questions

I want the property (two-room apartment) to go only to my son, but I have an unsecured loan. What is better: a will or a gift?

If you make a will, not only your property will pass to your son, but also your debts. It is possible that citizens who have the right to an obligatory share in the inheritance will lay claim to your property. If you are confident in your son, and a two-room apartment is not your only property, it is better to draw up a gift deed. This way you will free your son from your debt obligations and the apartment will belong only to him.

I am 75 years old. Two daughters. The property has a large house. I want to re-register the house in the name of my daughters so that they won’t fight for it after my death and I won’t be left homeless while I’m alive. How to apply? Gift or bequeath?

If you donate the house, your daughters will become the owners and they have the right to dispose of it as they wish. If you bequeath the property to your children, you remain the owner and will have use of the house. In your will you can indicate in what shares they will inherit. If you do not specify shares, they inherit in equal shares. Title to the house will pass to your daughters upon your death. And only after receiving a certificate of the right to inheritance they will be able to dispose of it as they wish.

Second marriage. We've been living together for 17 years. I bought an apartment after divorcing my first wife. There are no common children. Relationships with children from my first marriage are difficult. How can I properly decorate my apartment so that if I die, my children won’t put it out on the street?

Draw up a gift agreement. The apartment will belong only to your spouse. If you draw up a will, children can make claims or appeal the will.

Advantages and disadvantages of a gift agreement

In general terms, we discussed the conditions for drawing up a gift agreement, but it has very specific advantages and disadvantages that arise from these conditions. We will not divide them into pros and cons in this text. Because what is a plus for the recipient can turn out to be a significant minus for the donor. Therefore, we will list the points that require attention, and you yourself will determine whether in your situation this statement will have a “plus” sign or vice versa.

When concluding a gift agreement, the recipient's ownership rights begin immediately after registration of the agreement. This is very pleasant for the recipient. But for the donor, this can result in deregistration and even eviction. Because after the transfer of ownership, the donee enters into full use, ownership and disposal of the donated property. And he may well order the eviction of the donor.
A gift agreement is quite difficult to challenge. That is, if you first gave it as a gift, and then decided to return everything as it was, nothing will work. To terminate a gift agreement, compelling reasons are required:

- if the donee made an attempt on the life of the donor, the life of his family members, or intentionally caused them bodily harm; - if the donated item has a great non-property value for the donor (in relation to an apartment - a road as a memory, for example), and the donee commits actions that can lead to irretrievable loss of property; - if the donor survives the donee, and this condition is reflected in the contract.

the donee should not forcibly accept property as a gift if he does not have the corresponding desire;
the donee may refuse the donated property if, over time, his financial status has changed and the expenses associated with the gift significantly worsen his financial situation;
in case of refusal to accept the gift, the donor has no right to demand compensation for losses incurred from the failed recipient.

In case of cancellation of the donation, the donee must return the property to the donor. In addition to the donor himself, his relatives can challenge the gift agreement. To do this, it is necessary to prove that at the time of signing the contract the donor did not realize the legal consequences of his act, was incompetent, or committed this act under the influence of threats and blackmail. That is why it is best to draw up an agreement with a notary. He has the power to determine the voluntariness of intentions, the legal capacity of citizens and other features of the transaction, and it will be almost impossible to challenge it.

Is it possible to challenge a deed of gift through the court?

According to the claim of the victim, a transaction can be declared invalid if it was made under the influence of threat, violence, deception, and also if the citizen (donor) at the time of such transaction was in an inadequate state, did not understand, was not aware of the result of such actions.

The statute of limitations for challenging a gift agreement or declaring the transaction invalid is only one year.

The limitation period begins from the day when the violence or threat ceased, or from the day when the victim learned about the circumstances that constitute the basis for declaring the transaction invalid. Read more about how to challenge a deed of gift for an apartment in our article.

Advantages and Disadvantages of Making a Will

Just as with the gift agreement, we cannot distinguish individual features as positive and negative. It all depends on who you are in relation to the will.

The testator, after writing a will, has the right to cancel it and rewrite it as many times as he pleases;
After writing a will, there are no obstacles to any actions with the apartment. The owner has the right to sell it, donate it, pledge it and perform any action not prohibited by law;
The heirs' right of ownership comes a long time after the death of the testator. First, an inheritance case is opened with a notary, then a pause is taken for six months in order to find all potential heirs, and only then the will of the deceased is carried out. Moreover, after the will enters into legal force, registration of the document with Rosreestr is mandatory. And only after registration is completed, the heir becomes the full owner of the property;
Before executing a will, the notary considers the presence of other heirs who have the right to compulsory inheritance of property. For example, if the deceased had minor children or disabled relatives, they will inherit at least half of the share that would be due to them in the event of inheritance by law.

Roughly speaking, if a person bequeaths an entire apartment to, say, his eldest daughter, but at the time of his death he had another minor child, then the shares in the inherited property will be distributed as follows: 1/4 of the minor child, and 3/ 4 parts from the heiress according to the will.

What is better, a will or a deed of gift for an apartment for an heir?

The choice of method for transferring property depends on the current circumstances. But practice shows that it is more profitable to use a deed of gift if the parties are close relatives.

Otherwise, it is better to make a will. The testator still has the opportunity to change his decision, and the heir will benefit financially. But only on condition that the testator does not have serious debts.

What is more profitable - gift or purchase and sale of an apartment?

Donating a share - features

A large number of misunderstandings arise with common shared ownership. Here is a typical situation: a two-room apartment with two shared owners, each with 1/2 shares. How should they use the housing? Logically, everyone uses their own room, but in reality this is far from the case. A share is an abstract concept: in property rights, one second share means the presence of 0.5 shares in each meter of an apartment... This means that even with 0.1 shares, the shared owner has the right to use the entire housing, unless a different order is established by a court decision or agreement of the owners . The bulk of housing and property cases in the courts are related to common shared property. This is an extremely dangerous regime from the point of view of use: it is impossible to deprive property rights without special reasons, and sometimes it is impossible to use housing together. Therefore, whenever possible, it is necessary to avoid the emergence of common shared property, even between close relatives.

The second problem is the difference between common joint and common shared property. If with shared ownership each person has a specific share, then with common joint ownership the shares are NOT allocated. Such situations occur during a divorce, when one of the spouses wants to give their own share to the child. To donate your share, you first need to transfer the apartment from the regime of common joint ownership to common shared ownership. This is done by a special agreement on determining shares.

Documents and expenses

The procedure for drawing up a will does not provide a list of specific documents. The procedure for drawing up a will and entering into inheritance rights involves the following expenses:

Paid document processing. Each page costs approximately 1,000 rubles, and notarization costs another 100 rubles. These costs are borne by the apartment owner.
State duty for issuing a Certificate of Inheritance. It is 0.3-0.6% of the cost of the apartment and should not exceed 1 million rubles. 0.3% is paid by the heirs of the first and second stages, 0.6% by the rest.
Fee for the services of a specialist who will evaluate the cost of the apartment.
The fee for the registration certificate is 2000 rubles.
Notarial services.

Drawing up a deed of gift requires not only expenses, but also the collection of documentation. You must provide:

The title document is actually a deed of gift.
Cadastral passport.
Certificate of state registration.
If the donor has a spouse, their consent to the gift is required.
Permission to make a gift from the guardianship authorities if the donor has children under 18 years of age.
Registration document from Rosreestr.

You need to pay:

Preparation of a property donation document – up to 5,000 rubles.
Notarization – up to 1% of the property value.
State duty – 2000 rubles.
Tax on gift received. An apartment is income and requires personal income tax. The tax this year is 13% of the cost of housing. The exception is made for heirs of the first stage - parents, grandchildren, children, brothers, sisters.
Services of a specialist who will evaluate the housing.

How to register an inheritance correctly?

Before initiating the process of transferring an inheritance, you need to familiarize yourself in detail with the features of the deed of gift and will and decide on such issues as:

a list of individuals or legal entities to whom the transfer of personal property is planned;
the presence of conflicts or property disputes between different heirs in relation to the property that is planned to be transferred into ownership under a will or in the format of a deed of gift;
difference in amounts when paying for utilities (we are talking about an increase in the amount when transferring property to other persons);
the possibility of fraud (we are talking about obtaining real estate by dishonest means, which is often faced by lonely elderly people);
options for the rights that the owner has to live after his property is transferred to the recipient or heir;
the need to care for the owner of the house or apartment;
the difference in the amount of state tax when drawing up a will or deed of gift.

A will is cheaper, but less reliable for the heir. A deed of gift is an almost 100% guarantee that the recipient will receive all rights to the property. It is necessary to draw up a gift agreement only if the donor trusts the recipient. Once the deed of gift is signed, the rights to the property automatically transfer to the donee.

Lifetime annuity

In addition to a deed of gift or will for the purchase of housing, there is also an annuity with lifelong maintenance. The transaction, in terms of the requirements for a set of documents, is no different from the standard purchase and sale of an apartment on the secondary market. Property rights are transferred after state registration. In the encumbrances section of the title deed, it will say “rent.”

The main feature of the transaction is that it must be notarized, since the notary is also an independent guarantor of the legal capacity of the parties. Payment for the transfer of rights is taken in the amount of 3-4% of the transaction specified in the contract.

Additional insurance against a claim for termination of the transaction can be a certificate from a psychiatrist stating that the grandmother has never been registered in such institutions. Even after a competent transaction, the risk of losing your apartment remains if you do not strictly comply with the terms of the rental agreement. The maintenance of the annuity recipient can be agreed upon in the form of a certain amount paid to him monthly or a set of services (medicines, products, medical procedures), or there may be combined options.

Sometimes the annuity contract contains a clause on indexation of the amount, but official inflation indicators do not always allow it to be realistically measured, and then the annuity recipient has a chance to terminate the contract. So it’s better to abandon this point immediately. All obligations specified in the annuity must be strictly observed, otherwise the recipient may go to court, and most often the courts end up on the side of the pensioner. Conscientious fulfillment of obligations is not enough; it is also important to document all actions so that they can be confirmed by checks or documentation from address delivery services. A receipt for receiving money is not enough (you can refer to problems with sanity); transfers to a savings book are better. Documenting help is unpleasant, but necessary: the mood of older people is changeable, and relatives may show up wanting to take possession of the apartment. If circumstances change and the rent recipient needs a nurse, the buyer of the apartment with the tenant is not responsible for additional expenses, well, everyone has their own moral principles.

When is a will the best solution?

If we talk about a will, then for the heir this is not the most reliable option (unlike a deed of gift), because the owner of the property always has the opportunity to either cancel his decision or revise the conditions.
The owner of a house or apartment can always add new heirs to the will, which will make it more difficult for applicants to obtain rights to property. The will must not only be correctly drawn up, but also certified by a notary. The main thing is to indicate the details of the owner of the property, heirs, and the nature of the official paper, to provide the most detailed information about the apartment or house.

example of a will in .doc (Word) format After the will is drawn up, it must be certified by a notary office, otherwise the document will not have legal force. Moreover, the heir may not be present at this process, but the testator must not only come, but also bring a witness. The will is drawn up in 2 copies, one of which remains with the notary, and the other is transferred to the testator. After the document is completed, it is transferred to the state archives for storage.

Step-by-step instructions - how to draw up a will correctly.

What is the difference

A deed of gift is a two-sided form of document.
On its basis, the right of ownership of a particular movable and immovable property is transferred from the owner to the donee. A will is a one-sided form of document that represents a kind of permission from the owner to transfer ownership rights into the hands of another person after his untimely death.

These two concepts have one similarity - both imply a gratuitous transfer of ownership rights from one owner to another. But there are also differences in the conditions of change of owners. What is the difference between a deed of gift and a will?

The donor completely loses the right of ownership immediately after the deed of gift comes into force. It is no longer possible to get your gift back or change your decision.

A will works in a slightly different way. It means the transfer of property into possession only after the death of the testator, and even then only after six months. The legal owner may lose his future property when the owner changes his mind and transfers the property or vehicle to another person. And you can do this an unlimited number of times, and it is not at all necessary to notify your heirs.