Domestic family law considers grandchildren as close relatives, which allows donations to be made in their favor, without any damage to the financial condition of the recipients, due to the exemption from the obligation to pay personal income tax. This exemption also applies to gifts of real estate, including apartments, which are one of the most common gifts in favor of grandchildren. At the same time, the donation of real estate is associated with design features, state registration, the legal status of the donee, the presence of legal capacity and other nuances that will be discussed further.
How to formalize a gift to a grandson or granddaughter
A donation in favor of a grandson or granddaughter is formalized by an agreement - a deed of gift (Article 572 of the Civil Code), according to which the donor transfers or undertakes to transfer in the future in favor of his grandson or granddaughter any property benefit. As a general rule, a deed of gift, executed simultaneously with its conclusion, can be in oral form . However, there are a number of exceptions that require a written document.
Attention
According to paragraph 2 of Art. 574 of the Civil Code, a gift agreement in favor of grandchildren must be drawn up in writing , if there is a promise of a gift in the future - violation of this requirement entails the nullity of the concluded document.
In addition, a written deed of gift in favor of grandchildren will also be required in cases of donating real estate and vehicles . These requirements are not enshrined in law, but arise in connection with the need to carry out state registration of real estate (Article 131 of the Civil Code) and register the vehicle.
A deed of gift drawn up in favor of grandchildren, regardless of the type of gift, does not require mandatory notarization - it is carried out solely at the request of the parties to the transaction. According to Art. 163 of the Civil Code, certification of the gift agreement by a notary will confirm its legality, as well as the existence of the parties’ rights to complete such a transaction.
The content of the agreement must also meet the requirements of the legislator - according to Art. 432 of the Civil Code, the document must contain a condition on the subject of the transaction . To do this, the contract must indicate the specific gift being given to the grandson, its individual features - description, shortcomings, cost, etc. If there is a promise of donation, the contract must contain the donor’s intention to fulfill the contract in the future (clause 2 of Article 572 of the Civil Code).
After indicating the gift, the gift agreement must determine the conditions for its transfer to the gifted grandson. Within the framework of this section, the agreement must determine the conditions and method of transferring the gift, the documents to be filled out along with it, the timing of the transfer, suspensive conditions (Article 157 of the Civil Code) and other conditions.
Important
If a gift is endowed with shortcomings that could cause harm to a grandson or granddaughter, the donor is obliged to report them (Article 580 of the Civil Code). To do this, it is best to write down these shortcomings in the contract.
All other details are standard and inherent in every civil contract. At the end of the document, the parties confirm the concluded agreement with their signatures.
What is more profitable and better: inheritance or gift
When choosing the optimal form of transfer of ownership, you need to pay attention to various aspects of this issue. If we take the financial aspect as a basis, then a gift agreement is the best solution in cases where it is necessary to transfer real estate to a close relative without presenting any counter conditions. If real estate is transferred to non-relatives, then another form of real estate transfer - inheritance - will be a more attractive option.
This is interesting: Which is better, a power of attorney or a will? 2020
Having analyzed and compared other components of these forms of transfer of real estate and their consequences, and answering the question of what is better: a will or a deed of gift for an apartment, we can draw the following conclusions:
- Having a gift agreement is a more attractive way to obtain rights to real estate for the following reasons:
- the terms of the agreement practically cannot be changed or canceled;
- The recipient will own the real estate immediately after registration of the contract.
- A will is a more advantageous option for the testator for the following reasons:
- the contents of the document and the circle of heirs can be changed any number of times;
- Only the last dying version of the document has legal force;
- the property that is bequeathed remains in the possession of the testator at all times;
- The heir has the right to claim his rights to the property left as an inheritance only after the death of the person who signed it.
Recommendation! When drawing up a document, you should remember that there is a circle of people who have the right to part of the property, regardless of whether they are mentioned as heirs or not. These are the children of the testator under the age of 18, whose parents are pensioners and disabled people.
Donating an apartment to grandchildren
The transfer of an apartment in favor of grandchildren by way of gift is associated with some peculiarities - they are related to the specifics of civil real estate turnover, the nuances of registration and the legal status of the gifted grandson. Their accounting is mandatory for the transfer of the apartment within the framework of the law, the validity of the deed of gift and compliance with the rights of the donee.
Transfer of rights to real estate, in accordance with Art. 131 of the Civil Code, is subject to mandatory state registration , which is carried out according to the rules established by Federal Law No. 122 of July 21, 1997. To carry it out, the applicant (usually the gifted grandson) must pay a state fee, the amount of which, according to clause 22 of Art. 333.33 Tax Code is 2 thousand rubles.
The registration procedure requires the applicant to submit a number of documents, including a deed of gift. For this reason, it must always be in written form .
The agreement for donating an apartment in favor of grandchildren must contain a detailed description specifying the apartment being transferred and distinguishing it from other real estate objects. To do this, the contract specifies the location and address of the property, the floor of the house, the number of rooms and their condition, area, technical passport data and other information.
Additionally
According to Art. 556 of the Civil Code, the transfer of real estate is carried out according to a transfer deed . Thus, it is advisable to also indicate information specifying the subject of the transaction in it.
Since grandchildren, according to Art. 14 IC are close relatives, then their receipt of real estate as a gift cannot be considered taxable income (clause 18.1 of Article 217 of the Tax Code). To do this, when drawing up a deed of gift, it is advisable to indicate the presence of close family ties between the parties to the donation, and also attach documents confirming this fact.
When transferring an apartment in favor of a grandson, the donor is obliged to notify him of any shortcomings in it that may threaten his health and property (Article 580 of the Civil Code).
If there are any, it is advisable to reflect them in the contract or transfer deed.
Gift to a minor grandson or granddaughter
A donation in favor of a minor grandson or granddaughter has a number of features related to the amount of legal capacity that such donees have, depending on their age. Thus, the possibility of personal participation in a transaction is influenced by both the nature of such a transaction and the age of the donee grandson .
For your information
According to Art. Art. , Civil Code, transactions aimed at gratuitous receipt of benefits by minors (under 14 years old) and minors can be carried out by them personally, if they do not require notarization and subsequent state registration.
If the donation requires state registration or notarization, then instead of the minor, his legal representatives (Clause 1 of Article 28 of the Civil Code). Regarding minors, for their personal participation, written permission from their legal representatives (parents) is sufficient (Clause 1, Article 26 of the Civil Code).
Thus, donating an apartment in favor of a minor grandson requires the donor to take into account the scope of his legal capacity. Since the donation of an apartment requires mandatory state registration (Article 131 of the Civil Code), the personal participation of a minor in such a transaction is unacceptable, but a minor is permissible with the written consent of the legal representatives.
Particular attention is required in cases where grandparents are simultaneously the legal representatives of their grandchildren (for example, in the case of guardianship). In such cases, when making a gift to a minor, the rules of representation prohibit the participation of one person from both the donor and the donee. To implement such a donation, it is advisable for the donor to contact the guardianship authorities to appoint a temporary legal representative in order to conduct the transaction in favor of the minor.
When donating an apartment to a minor, the donor-guardian gives him written permission to enter into a transaction with him. Despite the absurdity of such norms, their violation will not allow notarization of the deed of gift and state registration.
Example
Citizen M. decided to give his grandson G. a country house for his coming of age. To do this, a month before the holiday, he decided to issue a deed of gift for it. Having drawn up and signed the agreement, as well as collecting all the necessary documents, in M.’s opinion, the parties proceeded to re-register the real estate in Rosreestr. Having submitted a package of documents, M. received a receipt indicating their receipt, which indicated the date of issue of the certificate of ownership. Having appeared at Rosreestr on the specified date, instead of a certificate, M. received a resolution to refuse registration, motivated by the fact that G. was not endowed with the necessary legal capacity to conclude this transaction.
Namely, according to Art. 26 of the Civil Code, G had to obtain the written consent of one of his parents. Since M. was in a quarrel with G.’s parents, the parties had to wait until the donee came of age, only after which, having drawn up a new agreement and submitted documents in a new way, the state registration was successful.
What documents are needed
The donation procedure itself is simple.
The parties need to take the following actions:
1. Get together - the owner of the object, the donee (if he is old enough, 14-16 years old) and the legal representative. If the grandson is younger, only adult relatives.
2. Discuss the future transaction, including expenses associated with its implementation: services of an appraiser and notary (if a specialist is involved), state duty. Other expenses include paying rent and taxes for a minor owner. If the gift agreement has an encumbrance, then it has its own subtleties.
3. Prepare - conduct an assessment of the object to determine its exact value. Draw up a gift agreement.
4. After familiarizing themselves with the contents of the document and resolving controversial issues, the participants sign the paper. This is how the deal is done.
5. If citizens invite a lawyer, everything happens in his office. A specialist certifies the paper.
6. Participants bring documents required for registration:
- passports of the parties, birth certificate of the grandson (if he is a minor);
- power of attorney – confirms the powers of the legal representative;
- receipt of paid state duty (you need to pay 2000 rubles);
A statement is being written. Also needed:
- 3 copies of deed of gift;
- title documents (of the donor for the object of the transaction);
- extract from the house register - shows the composition of persons living inside the apartment;
- paper with BTI (if necessary);
- consent of the spouse (if the object is joint property and the owner is married);
- consent of guardianship (when the interests of children are involved).
7. With this package, citizens visit Rosreestr or send them through the MFC. This way the new owner is registered.
When a share of real estate becomes a gift, the exact amount must be indicated in the deed of gift. And first select it relative to the entire apartment/house.
Taxes on gifts to a grandson or granddaughter
As you know, income received in cash and in kind as a gift is exempt from income tax . An exception to this rule is in cases of receiving real estate, vehicles, shares and shares as a gift - in general cases of receiving them, the recipient has a tax liability.
Important
According to Art. 14 of the RF IC, grandchildren are recognized as close relatives . According to clause 18.1 of Art. 217 of the Tax Code, close kinship exempts the donee from the obligation to pay 13% personal income tax. Thus, grandchildren will be exempt from income tax , regardless of the type of gift received under the gift deed.
To exercise this right of grandchildren, it is advisable to indicate in the contract the presence of a close relationship, and if necessary, provide documents confirming this fact to the Federal Tax Service.
In addition to income tax, the donee grandson may be required to pay property tax for individuals (Article 399 of the Tax Code). Such an obligation arises in the event of receiving a piece of real estate as a gift (Article 401 of the Civil Code).
Depending on whether there is a decision on this by the legislative body of the constituent entity of the Russian Federation (Article 402 of the Tax Code), property tax is subject to calculation either from the cadastral or inventory value of real estate. According to Art. 406 Tax Code, tax rates depend on the name and value of the property and range from 0.1 to 2% . Payment of this tax is carried out annually.
