Will, annuity agreement or deed of gift: which is better and more profitable? Possible risks during the transaction

To save relatives from bureaucratic procedures for dividing inherited property, many property owners prefer to formalize the transfer of rights to apartments, garages, land plots or houses in advance. The main problem in this case is the choice of the legal form of registration - a deed of gift or a will. There are pros and cons to each option.

Features of donation and annuity agreement

Gifting and renting are completely different transactions. The gift agreement (hereinafter referred to as DD) is regulated by Chapter. 32 of the Civil Code of the Russian Federation, implies the gratuitous transfer of gifts:

• real estate;
• vehicle;
• money;
• shares in the authorized capital of LLC;
• household appliances;
• jewelry;
• debt obligations of the donee to a third party;
• the right to claim a debt by a donor from a third party in favor of the donee.

Gifts can be of any kind, the main thing is the existence of ownership rights and the legal capacity of the donor.

With rent everything is different. The annuity agreement (hereinafter referred to as the RA) is governed by Sec. 33 of the Civil Code of the Russian Federation, involves the transfer of property for compensation. Unlike donation, where the donor and the donee are recognized as parties, DR involves the recipient and the annuity payer (Article 583 of the Civil Code of the Russian Federation). The recipient under the contract undertakes to transfer ownership of the property to the payer, and the payer, in exchange, pays him money or provides maintenance in another form.

What happens in the event of death?

If the testator dies, all rights and obligations assigned to him under the contract pass to the heir.

In the event of the death of an heir, things are more complicated. Only the surviving person can demand fulfillment of the terms of the contract providing for what will happen in the event of the death of the testator.

Think ahead! We recommend including in the inheritance agreement a condition that in the event of the death of the heir, his own heirs will have some rights - at least to a return of the money spent.

Characteristics of the gift agreement

The donation agreement is concluded orally, with the exception of a few cases when writing is required (Article 574 of the Civil Code of the Russian Federation):

• a legal entity donates property worth RUB 3,000 or more;
• real estate is given as a gift: house, apartment, land, room in a communal apartment;
• the giver promises to give a gift in the future, upon the occurrence of a certain event or date.

For donation, the consent of the recipient is required - he signs the DD. If a contract of promise of gift has been drawn up, he has the right to refuse the transaction at any time before receiving the gift (Article 573 of the Civil Code of the Russian Federation).

Important! Until 2013 it was necessary to register a deed of gift for real estate in Rosreestr, then submit documents to re-register ownership. Since March 20313 this procedure has been canceled, and now the parties only need to contact the registrar once for the donee to become the owner.

Legal advice: even if the law does not provide for a written form of the DD, it is better to draw it up on paper. For example, a paper DD may be needed to register a donated car - without it, the recipient will be refused by the traffic police.

Contents and sample of a gift agreement

There are no requirements for the content of the gift, but in order to avoid disputes, it is better to immediately formalize everything correctly, indicating complete data about the transaction:

• Full name, series and numbers of passports, registration addresses of the parties;
• information about the gift: date of release/delivery of the property, details of title documents;
• date of conclusion;
• grounds for changing or terminating the DD, procedure;
• liability of the parties to the transaction;
• signatures of the parties.

Sample real estate donation agreement:

Pros and cons of deed of gift

If we consider the advantages and disadvantages of a deed of gift, we can highlight several features:

What is more profitable: an exchange agreement or a gift agreement?

Unilateral gift agreement

What does a will look like?

When it is necessary to properly record the personal will on the distribution of property between one’s loved ones and relatives, a one-sided document called a will is drawn up. For it to have legal force, it must be in writing and certified by a notary.

The following forms of will are distinguished:

1. Open. All mentioned persons are aware of who will be the heir and in what shares. The information is known to the recipients during the life of the testator.
2. Closed. After death, it becomes known who inherits the testator's property.
3. Simple written. The document is a statement of will drawn up on paper.
4. Notarial. Done with the direct participation of a notary, who guarantees the legal significance of the document.

For ordinary citizens, a will document is often associated with the final dispositions regarding real estate. However, there are a number of nuances that must be taken into account when drawing up the paper.

Characteristics of the annuity agreement

Unlike a deed of gift, a DR is drawn up only in writing and must be certified by a notary (Article 584 of the Civil Code of the Russian Federation). Since 2013, it has not been registered, but the transfer of ownership is subject to state registration.

An annuity is characterized by several qualities:

• several types of contracts: permanent, lifelong, lifelong maintenance with dependents;
• property is transferred for a fee or free of charge;
• if a fee is charged, the sales rules apply;
• When transferring free of charge, the rules of donation apply;
• Any real estate is transferred by rent: an enterprise, a building, a structure, a plot of land, a house, an apartment;
• When the payer alienates property received under rent, his obligations pass to the new owner, and subsidiary liability arises.

Important! According to Art. 587 of the Civil Code of the Russian Federation, in order to secure the obligations of the recipient, the rent payer acquires the right to pledge property. If he ceases to fulfill his obligations or the conditions of detention of the recipient worsen due to circumstances beyond the control of the other party, the transaction is terminated. The recipient has the right to demand compensation for losses incurred as a result of termination.

Contents and sample of a life annuity agreement

By law, the DR is drawn up in writing, but there are no requirements for content. But the lack of reliable and complete information in the document may become grounds for refusal of registration, so you need to include all the information in it:

• Full name, passport details, registration addresses of the recipient and payer;
• validity;
• information about the property: cadastral number, details of the extract from the Unified State Register for the recipient, date and basis for the emergence of ownership rights, area, number of rooms, number of floors;
• obligations of the payer and recipient;
• amount, frequency of payments in favor of the recipient;
• rights, responsibilities of the parties;
• grounds for change or termination;
• signatures of participants.

The agreement is drawn up in at least three copies. One each remains with the recipient and the payer, the third is transferred to Rosreestr.

Sample life annuity agreement:

Advantages and disadvantages of an annuity agreement

Let's look at several positive and negative qualities of AR.

Let's start with the pros:

• the recipient has the right to continue to reside in the real estate involved in the transaction;
• the property is transferred to the payer immediately after certification;
• the transaction is relatively easily terminated if the parties fail to fulfill their obligations.

The disadvantages are high risks for the recipient. Until his death, the property belongs to the payer only nominally, and some people choose to “speed up” this process by criminal means. In addition, a change in the condition of the transferred property is not grounds for termination of the transaction, and the payer will have to continue to fulfill his obligations, even if the property is no longer satisfactory to him.

If the contract provides for liability for late payments, the payer will have to pay fines. The size depends on the key rate of the Central Bank of the Russian Federation, unless other sanctions are specified in the document (Article 588 of the Civil Code of the Russian Federation).

Comparison and differences between annuity and gift agreements

There are several differences between DR and DD:

Do I need to have a gift or rent agreement certified by a notary?

The annuity agreement must be certified by a notary, and for donation, certification is required only in certain cases:

• the share in the property right is alienated;
• a representative participates in the transaction by proxy;
• the property of a minor is donated;
• A guardian acts on behalf of the donor.

Note! The law does not allow donations on behalf of a child under 14 years of age or an incapacitated citizen. No notary will certify such a transaction.

Legal advice: a notary’s signature does not guarantee the impossibility of challenging, but significantly reduces it. If identification is not required by law, it is still better to contact a notary office to protect yourself.

Document storage period

Civil legislation also specifies the fact that all documents certified by a notary must be kept in the archives. This means that a will made during your lifetime must remain on the will register for at least 75 years. Thanks to this condition, it is possible to contact the archive to obtain a copy of the will. But this is permitted in exceptional cases specified by law. An application to receive a copy is submitted to the Chamber of Notaries, which is authorized to preserve the will.

The shelf life of the paper is also indicated - 75 years. The heir, whose rights were violated during the declaration of the wishes of the deceased, receives access to a copy of the document in order to challenge its legal validity.

Each notary has his own archive. But it happens that a notary leaves work, so he is obliged to provide his archive to the Notary Chamber. This body then deals with the transfer of wills to other specialists. This way, the testamentary paper will not be lost.

Expert opinion

Klimov Yaroslav

More than 12 years in real estate, higher legal education (Russian Academy of Justice)

Ask a Question

If during court proceedings the heirs do not have information about which notary certified the will, they should request the data from the Notary Chamber of the region. You should also submit a request for the disposition of the property under the will. After the register is checked, a notification is sent indicating the address of the notary holding the will.

Grounds for challenging a gift or rent agreement

You can challenge a deed of gift or DR on the grounds specified in Art. 166-179 Civil Code of the Russian Federation:

• signing by a person with limited legal capacity or an incapacitated citizen;
• the transaction is not certified by a notary, if his signature is required by law;
• During registration, significant violations were committed that are contrary to the law;
• the transaction was made by the donor or recipient of the annuity under the influence of physical or psychological pressure;
• for the alienation of property shared by spouses, the consent of the recipient’s spouse or the donor was not obtained;
• when signing, the citizen was not aware of the consequences of the transaction and did not understand its nature;
• the contract was concluded without further legal consequences (imaginary transaction);
• registration for the purpose of covering up donation, rent, purchase and sale, barter (feigned transaction).

Challenging is possible through court. The statement of claim is filed at the location of the property in dispute. If the claim involves non-property issues, you should go to the court at the defendant’s place of residence.

Important aspects to know before compiling

It is necessary to familiarize yourself with the rules for the entry into force of a will so as not to challenge it in court:

1. To prevent a problem, an application must be drawn up only by a legally capable person. Also, the document must have signatures with details according to the template offered by the lawyer. A competent person is an emancipated person (16 years of age), who has reached the age of majority and has no restrictions on the disposal of his or her capabilities.
2. The declaration of will is written independently. It is not recommended to involve a trusted person, but this is not prohibited by law. Through a power of attorney, a document can be revoked through the court.
3. The will of the owner is stated in the testamentary document. The drafting of a document describing the collective wishes for the disposal of the apartment is excluded.
4. The recording is carried out by the owner of the property or a person authorized to do so, based on the words of the person submitting it.

Important! The legal capacity of the testator, as well as the persons signing the document, is judged personally by the notary. The lawyer will require medical certificates confirming sanity.

Arbitrage practice

It is very difficult to cancel a DD or DR, but the chances increase if people turn to experienced lawyers for advice and representation in the courts.

Let's look at a few examples of decisions in cases where citizens managed to cancel transactions:

• Decision No. 2-2687/2017 2-49/2018 2-49/2018 (2-2687/2017;) ~ M-28/2017 M-28/2017 dated May 3, 2021 in case No. 2-2687/2017 ;
• Decision No. 2-55/2019 2-55/2019(2-775/2018;)~M-675/2018 2-775/2018 M-675/2018 dated June 17, 2021 in case No. 2-55/2019 ;
• Decision No. 2-6170/2018 2-6170/2018~M-5525/2018 M-5525/2018 dated July 17, 2021 in case No. 2-6170/2018.

The result of the proceedings is the return of the parties to the original position that was before the conclusion of the contracts.

Lawyer's answers to frequently asked questions

Is it possible to recognize a gift agreement as annuity?

Yes, if there are signs of rent, and a sham transaction was initially concluded (Article 170 of the Civil Code of the Russian Federation).

What is better: an agreement of exchange, gift or rent?

These are different agreements in essence and nature. Exchange is more profitable if you need to exchange real estate, especially in different cities. Gifting is beneficial for the donee, rent is beneficial for the recipients. It may turn out to be unprofitable for payers: often during the life of the recipients they have to pay large sums that exceed the cost of the apartments.

What is more difficult to challenge: a rent agreement or a gift agreement?

Depends on the situation. But judicial practice shows that the likelihood of achieving cancellation is much greater when challenging a deed of gift.

I want to transfer real estate to my daughter, but in such a way that she will support me. What is better in this case: rent or donation?

Definitely rent. When giving a gift, there is no likelihood that the donee will support the donor - such an obligation is not provided for by law, unlike the DR.

Is it possible to draw up a deed of gift or annuity agreement if it is not possible to come to the notary in person?

Yes, by ordering a notary to come to your home. The service is paid separately.