What is better for the heir: donation or will?

Often, people who are concerned about how to properly register an apartment as an inheritance and pass it on to their relatives have a question about what is better: a deed of gift or a will.

To resolve this dilemma unambiguously, you first need to define these legal concepts, take into account all the pros and cons, and only then make a conclusion. Plus, you need to make sure how relatives or other successors will behave when registering property in their name.

We need to clarify one more nuance: are people close to you ready to inherit property? Or should the property issue be resolved during the owner’s lifetime and formalized as a donation?

What are the concerns of the parties?

They may be associated with various circumstances and factors. First of all, you need to take into account internal family relationships. Whether there is trust in each other or not.

Sometimes legal successors refuse property, fearing any “spoils in the wheel” in the process. First of all, this is due to the lifestyle of the deceased and other circumstances.

Many factors can contribute:

• fear of fraudulent schemes;
• illegality of ownership;
• taxation;
• other difficulties that arise.

Then you definitely need to think about where the testator himself will live after registering his property with his successors; if he needs care, then who will take care of him.

What kind of financial investments will this procedure entail for the registration of documents for the owner of the apartment and the right to own property for the successors.

You need to think carefully about all this before making an important decision on choosing one of the two: draw up a will or donate your living space to your heirs.

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

Depending on the life situations of a person who wants to dispose of his property, as well as the presence or absence of family ties between him and those in whose favor he wants to dispose, the following should be noted:

• for a person who is not confident in the sincere and conscientious attitude of his relatives, who, having disposed of his property during his lifetime, wants to continue to use it until the end of his life, undoubtedly, the best option is a will;
• if a person wants to transfer his property to a person close to him (regardless of whether he is his relative or not) and in order to prevent claims to this property by other relatives, the best option is a deed of gift;
• if the testator, when disposing of his property, wants to impose on the heirs the fulfillment of any obligations in relation to another person (for example: to provide the right to use the inherited residential premises or part of it) - this can only be done by will.

Find out an expert opinion on which is better: a will or a deed of gift, in this video.

Let's understand the concepts

So, the first step has already been taken, that is, the choice has been made in the direction of donation or will, and not transfer of inheritance by law. Let's define the concepts of these two transactions and what role they play in the transfer of property.

The preparation of these legal acts is justified by the owner’s intention to donate or bequeath his living space to relatives, any legal entities or a municipal institution of the city where he lives.

A deed of gift (donation) is a legal document that does not require certification by a notary; it streamlines the transfer of rights to property as a gift, in our case, to real estate.

A will is a document that must be certified by a notary; it is an act of will that provides unlimited freedom in the transfer of property and regulates the civil legal relations of a citizen in the event of his death.

Legislative framework and regulation

It is necessary to take into account that both a will (Chapter 62 of the Civil Code of the Russian Federation) and a gift agreement (Article 574 of the Civil Code of the Russian Federation) are transactions and, by force of law, can be challenged by interested parties (Article 179 and Chapter 32 of the Civil Code of the Russian Federation). In order to avoid legal proceedings, their registration must be approached with all responsibility, having fully thought through each subsequent step.

Basic legal awareness will not hurt in this transaction. If the owner wants his property to be transferred to another person immediately, then it is best to draw up a deed of gift, otherwise, draw up a will.

After all, a gift agreement provides a number of other advantages: the absence of litigation with other relatives and unnecessary red tape with registration authorities.

According to the will, successors realize their inheritance rights only after the death of the legal owner of the property.

There is some difference between drawing up a will and executing a gift deed. It lies in the fact that the owner, drawing up a deed of donation, will no longer have any rights to his property.

When the second document, a will, is drawn up, the rights are transferred to the heirs in the event of his death. In addition, a bequeathed apartment is mainly transferred to relatives, while it can be gifted to absolutely anyone.

This is the basis of how a deed of gift differs from a will!

Making a will

A will must be drawn up in the presence of a notary or other persons provided for by law whose signature is equivalent to a notarial signature. Examples of such cases include the following circumstances:

• when transferring a bank deposit under a will, its employee can certify the will;
• if there are conditions that threaten the life of the testator, the document can be certified by the signatures of two witnesses;
• in the form of notarization are the signatures of captains of distant ships, chief doctors (when the testator is in the hospital), heads of bases and expeditions outside Russian territory, commanders of military units, heads of correctional institutions, and so on.

The text of the document must contain the passport data of the citizen-heirs, an accurate and complete description of the property transferred to each of them (or an indication of all property), the date and place of drawing up the document, passport data of witnesses and notary data. The completed and paid will is registered in the notary database and can be restored at any time if it is lost.

Registration and registration

The gift agreement has legal force from the moment of state registration of the transfer of ownership in the relevant body - the Office of the Federal Registration Service.

The deed of gift is drawn up in simple written form; as already mentioned, it does not require notarization. This document can be drawn up either independently or by seeking legal assistance.

The second option is the most acceptable, because only a legally literate person will perform this procedure correctly, referring to the legislation, so that later there will be no difficulties when submitting this document to the registration authority.

Once the donation agreement has been registered with the relevant authority for the transfer of ownership, it can no longer be annulled.

Another way to dispose of property is to draw up a will. This act requires notarial confirmation and comes into force after the death of the testator. This document may be changed and canceled during the lifetime of its originator.

How to make a donation for an apartment

A deed of gift for real estate is a fairly simple document to draw up. To be completed in written and free form. The example can be downloaded on the Internet; there are many sites for this.

It does not need to be certified by a notary office, which also frees you from unnecessary financial expenses and running around the authorities. However, information is required to be entered into Rosreestr.

You can register either yourself or by proxy through authorized persons.

There are a number of other features that should be approached with caution:

1. The donation cannot be re-registered by law.
2. If this document is entered into the Rosreestr, there is no opportunity to change it or make any amendments to it. In any case, the property will go to the donee, and it will be extremely difficult to terminate the contract (there is one loophole in the law, which will be discussed below).
3. Property transferred by gift belongs exclusively to the person to whom it was provided under the agreement.

Let's give one example. If the spouses decide to divorce, the property that was gifted to one of them is not included in the division. Therefore, when a father presents an apartment to his son, being unsure of the reliability of his family, then you can safely draw up a gift agreement.

And yet, the law prohibits the donation of real estate to civil servants, social workers. spheres, if the named persons are not related to the author of this act.

Features of drawing up a will

In order to avoid complications in the distribution of the testator's property to successors, as specified in the will, you need to secure your property. To do this, it is recommended to hire an indifferent person (executor) who does not have the right to the willed property.

This must be a lawyer or lawyer. His competence in this matter can be stipulated in the will itself and certified by a notary.

To properly prepare a document, you should adhere to certain rules (tips):

1. All points must be interpreted clearly and legally competently, without ambiguous understanding of the meaning.
2. Try not to indicate common ownership to different heirs, so that this does not lead to disputes between them and further divisions into shares of the apartment.
3. If there are several real estate objects (apartments), then distribute them among different legal successors.
4. When writing a document, pay attention to which heirs should be given the right to property before the opening of the inheritance or simultaneously with it immediately after the death of the owner. To whom will the property be transferred from the heirs in the event of failure of another successor, etc. The law provides for the additional appointment of heirs.
5. Think about safety (hire a lawyer).

Regarding the last point, it is worth adding one more fact.

There are such circumstances that the primary heirs live in another region, while the successors for other objects, located next to the inherited apartment, or not specified in the will at all, illegally use the apartment for their own purposes and remove expensive property from it.

It will be almost impossible to return these things after inheriting the apartment; this requires clear evidence, which, apparently, will not be available.

How to correctly prepare documents

Whatever design option the owner chooses, it is important that the form of the document is followed. A will or deed of gift for an apartment must be drawn up strictly in writing.

A gift agreement is allowed without notarization. But in order to give the transaction legal significance, the parties turn to a notary to certify the agreement. If the parties decide to draw up a gift agreement themselves (which is much cheaper), they can use a standard sample agreement on the Internet as a basis.

A will must be drawn up in writing and certified by a notary. Certification by other authorized persons takes place in cases provided for by law (stay in a medical institution, places of serving a sentence, in military service, on a ship). The text of the document must not contradict legal norms. A document drawn up without taking into account the requirements of civil law will not have legal force.

You can draw up a will with a notary if you have the following documents:

• Passport or other identification document;
• A copy of the passport of the person to whom the property is bequeathed;
• Receipt for payment of duty.

Recommendation: It would be a good idea to provide documents for the property being bequeathed in order to correctly indicate its characteristics in the will. But the presentation of a title document is not a mandatory requirement.

You can make a will in any city, and even in any state. A deed of gift can only be issued at the location of the property (in the case of real estate).

To draw up a gift agreement you will need:

• Passports of the parties;
• Title document;
• Technical floor plan (for real estate);
• Technical passport (for vehicles);
• Market assessment report;
• Certificate of registered (residing) persons;
• Notarized consent of the spouse for the donation (if the property is owned jointly).

Tip: Legal requirements may change. It is better to first check with a lawyer or notary for a specific list of documents for each situation.

How to protect the owner of an apartment

An apartment or other living space is the most common case when drawing up a deed of gift for it. Of course, if a will is drawn up, then there is no danger here, the property will remain with its owner until his death, and no one else has the right to it until his death.

The situation is different when writing a deed of gift. The point is that as soon as the registration of the living space is completed in Rosreestr, the gifted person will be able to dispose of this apartment at his own discretion with all the powers.

And it may happen that the donor will simply be thrown out into the street, if that’s what the new owner wants. Therefore, in order to protect the donor - the owner of the property, you need to think carefully before registering this document.

If this is not a close relative, then it is better to get to know the person to whom you want to present the living space, whether you can trust him.

Attention is important! Be sure to include a clause in the donation agreement that, yes, the apartment belongs to the new owner, but it reserves your rights to continue living in the specified living space!

Is it possible to return the apartment if I change my mind about donating it?

If the donor has changed his mind about transferring his living space to another person and the deed of gift has not yet been processed, then you can quickly withdraw the application and return the property only if the transaction has not passed state registration!

In the ruling dated November 1, 2011 in case No. 33–24559/2011, upon the appeal of Mrs. G.E. with a claim to the court with a request to determine her share in the assigned living space, it is said: “In the application, the plaintiff wrote that due to the departure of her husband from the family, he decided to donate the specified share in the apartment.

The act was endorsed, the documents were transferred to Rosreestr for registration, but according to the decision and request of the defendant, they were canceled.”

Judge Grigorashenko rejected the claim on the basis that the defendant reconsidered his decision to issue a deed of gift to his wife because she showed unlawful actions towards him, kicked him out of the apartment and behaved inappropriately.

But this is because the documents were not included in Rosreestr, otherwise the situation would not have been resolved positively for the defendant.

If the transaction does take place, then it will be extremely difficult to terminate the gift agreement. Article No. 578 of the Civil Code of the Russian Federation provides for some situations in which it is possible to revoke an agreement, but this is unlikely.

Transaction sides: comparison

Let us establish how a deed of gift differs from a will for an apartment in terms of the composition of the parties. A deed of gift is a unilateral binding agreement. To make a donation, the mutual consent of two persons is required. The participation of a third party is necessary, for example, when a gift consists of transferring the debt of the recipient to the donor.

The rights and obligations under the deed of gift are distributed unevenly. The donor is obliged to transfer the gift and, if any, notify the recipient of its shortcomings. The only right granted to the donor does not have an independent character. He may demand from the donee, who signed the deed of gift and later refused to accept the gift, compensation for expenses associated with its dismantling, packaging, shipping, and the like.

The donee has the right to insist on the transfer of the gift promised in writing and compensation for damage that was caused to the health or property of the donee by shortcomings or malfunctions of the object of the donation, about which the donor knew but remained silent.

What is the difference between a will and a deed of gift for an apartment? A will is a one-sided transaction. The freedom of expression of the testator is limited by the provisions of the Civil Code on the obligatory share (more details in the section on the risks of a will). The testator is not liable to potential heirs in the following cases:

• changes/cancellations of a will;
• foreclosure of bequeathed assets;
• their damage/loss.

A will, within the framework of which the legal fate of real estate is determined, does not burden it. The testator can freely sell, donate, or mortgage such real estate without the consent and notification of the heir. What is better is a will or a deed of gift for an apartment depends on the position of the appraiser. A will is safer for the alienator; a donation is more beneficial for the recipient.

What is easier and how to challenge a donation or will

Judging from the previous section of the article, it is almost impossible to challenge a deed of gift that has been registered. As for the will, it can be redone during the life of the testator, changes can be made to the original text, clauses can be changed and deleted many times.

Even if after the death of the testator, many versions of this document remain, and they will all differ and contradict one another, then only the final version of the document is taken for legalization.

Who is eligible

Many people mistakenly assume that a notary has the right to cancel a gift agreement, but this is not true!

To cancel a deed of gift, you need to go to court, and only he has the right to cancel this document if registration with Rosreestr has not yet occurred.

The court may declare this act invalid in accordance with current legislation within a specified period. If this deadline has been missed, the court may also extend it.

A will can only be revoked by the person who made it at any time throughout his life. In this case, the testator is not obliged to explain to anyone the reasons for his actions.

Cancellation of a will is accomplished by the following actions:

• a new version of the document is compiled;
• an order is given to cancel the previous document.

The new version of the will must also be notarized. This does not apply to types of wills that were made in emergency cases or to funds held in financial institutions.

If the document is completely cancelled, the rules of inheritance by law come into force. A canceled will is not restored, except in cases of a court order recognizing the validity of another will drawn up by the testator during his lifetime.

Conditions for cancellation

Interested parties are not deprived of the right to challenge the gift transaction in court within a year on the grounds of the donor's incapacity, if the transaction was carried out under duress, as well as if the property is common, but was registered in the name of one spouse and donated without his notarial consent.

In accordance with Art. 1131 of the Civil Code of the Russian Federation, a will can be challenged after the statute of limitations has expired. Part 1 of Article No. 181 of the Civil Code states that the limitation on claims for recognizing the invalidity of this document is three years.

The period begins to be calculated from the moment the transaction enters into force. That is, the statute of limitations for a request to terminate a will due to its cancellation is calculated from the moment the inheritance is opened due to the death of the person who compiled it (Article No. 1113 of the Civil Code of the Russian Federation).

Examples of this are the Decree of the Moscow City Court dated April 12, 2016, number 4g-3244/2016, procedural acts of appeal of the City of Moscow in cases dated November 26, 2020. and No. 33-44569/2015 and dated October 28, 2020. No. 33-36342/15.

It should also be remembered that from September 1, 2020, new rules of law on the period for opening an inheritance came into force, as stated in Federal Law No. 79 of March 30, 2020.

From this date, according to paragraph 1 of Article 1114 of the Civil Code of the Russian Federation, it is customary to consider the “day of opening of the inheritance” in the understanding of the date of death of the testator as the “time of opening,” which specifies the moment of the death of the testator.

The limitation period for a request to cancel a disputed document and to use sources of its nullity is provided for a period of one year from the date of actual or alleged notification of the plaintiff about the reasons for recognizing the will as inauthentic.

This is stated in paragraph 2 of Article 181 of the Civil Code of the Russian Federation. Examples: procedural acts of appeal of the city of Moscow in cases dated August 14, 2015. N 33-26004/2015 and dated July 28, 2020 No. 33-25682/2015.

How is a will made?

The basic principles for drawing up a will are as follows:

1. The document can be drawn up on behalf of any citizen who has reached the age of 18 (Article 1118 of the Civil Code of the Russian Federation).
2. You can only bequeath what belongs by right of ownership and is confirmed by the appropriate document.
3. Property can be bequeathed in favor of any person (Article 1119 of the Civil Code of the Russian Federation).
4. The will can be changed at any time.
5. Half of the property acquired during marriage belongs to the spouse and cannot be taken away by will.

A will can only be made in writing. There is no provision for an oral form of will. A document acquires legal force after its certification. The right of certification is vested in a notary and a number of other authorized persons. Additional certification may be the signatures of witnesses in whose presence the document was drawn up and certified. In special cases, a will may not be certified by a notary, but only with the signatures of authorized persons and witnesses:

1. A will for a bank deposit may be certified by an employee of the same bank.
2. In simple written form and in the presence of 2 witnesses, a document can be drawn up in conditions that threaten the life of the testator.
3. When the testator is in a hospital or other inpatient medical institution, the head physician or a person authorized by him has the right to certify the document.
4. Captains of long-distance vessels, heads of expeditions and bases outside the Russian Federation also have the right to certify a will.
5. At the location of the military unit, its commander has the right to certify the will of his subordinate.
6. In a correctional institution, the wills of prisoners have the right to be certified by the director.

The law divides all relatives of the testator into turns, there are 8 of them in total. Heirs of the first turn (children, parents, spouse), as well as dependents, have priority rights over other heirs. Minor children, as well as dependent persons, have the right to an obligatory share of the inheritance. Even if the testator decides to exclude these persons from the will, in court they will be allocated 1/2 of the share of the inheritance prescribed by law.

The text of the will can be open, with the notary and witnesses familiarizing themselves with it, or closed, when interested parties can familiarize themselves with the contents only after the opening of the inheritance case. The text must include the following information:

1. Passport details of all citizens mentioned in the document.
2. An exact description of all the property that will be transferred to the heirs after the death of the testator, or the wording “all owned property” is indicated when its composition is not known at the time of drawing up the document.
3. Date of document preparation and place.
4. Passport details of witnesses.
5. Notary certificate details.

After the will is certified by a notary (a small fee is charged for this), the document is registered in a unified notary database. This allows the heirs after the death of the testator to easily find out whether he made a will, regardless of which office and locality the document was registered in.

The main differences between a deed of gift and a will: table

When both acts are drawn up and registered, all powers from the testator are transferred to the legal successors. There are only a number of differences between these two documents, and in order to finally decide which one to choose to transfer your acquired property to relatives or other close people, we will consider in more detail.

So, what are the differences between a gift and a will ? The basic principles are given in the table.

Well, by all indicators it becomes clear that the act of will is more harmless for the owner of the property, since it provides for the legal right to make changes to this document.

And, conversely, for someone who receives property under a gift agreement, this document is better, because this act is not subject to modification, with a few exceptions.

The heirs under the will have only one difficulty: if there are relatives close to retirement age, incapacitated and minors, in this case they will have to be taken into account, despite the will.

Main differences

We have given general concepts about the terms. Now let's look at the difference between a will and a deed of gift. Let's summarize the data in a table.

Table 1. Differences between a will and a deed of gift.

The table shows the difference between donating and receiving property under a will. However, there is no answer to the question of what is better, donation or bequest of an apartment, in which smaller questions are hidden:

• which is cheaper;
• which is more profitable;
• which is more reliable, etc.

Will

The concept of “will” (testamentum) first appeared in Ancient Rome. It means an act of unilateral will of the owner of movable and immovable property, determining its future fate after the death of the owner (testator). The document is drawn up in writing and contains information about the beneficiaries (heirs) and the shares of property transferred to each of them.

If we move to the legal plane, then a will is a document regulating the procedure for transferring property rights from a deceased owner to a new one . Given the importance of the paper, it must be registered with a notary.

From the above definitions, we will highlight several important points that will be useful to us in the future.

• The transfer of ownership occurs after the death of the owner, i.e. the heir cannot claim his rights to own the property during the life of the testator. For example, according to a will, housing passes to a grandson. Only after the death of the grandfather can the heir sell the apartment, rent it out, pledge it to a bank, etc.
• You can make a will to anyone, for example, the beneficiary can be a close relative (son, daughter), or a neighbor or a charitable foundation (in the West, there are often cases when a will is drawn up in favor of pets) and anything (your brain or body in a clinic or research institution).

A will is a unilateral act, and therefore it can be annulled, revoked and changed at any time.

Donation

A donation is a two-way act of gratuitously transferring one's property to another individual or legal entity for full ownership . It is drawn up in the form of a gift agreement, where two parties must be present: the donor and the donee. After signing the deed of gift and registering it with Rosreestr, ownership rights are transferred to the new owner (we discussed the general procedure for registering a deed of gift here).

There are also nuances here that will be useful later.

• The transfer of ownership occurs during the life of the donor. This may lead to the recipient evicting the former owner from the apartment and being in the right according to the law. It is impossible to stipulate additional conditions in the deed of gift, for example, lifelong residence - the agreement will be considered void.
• There are restrictions in the Law on who can give what and who can accept a gift. There are a lot of by-laws here. Therefore, the editors of the VKreditBe.Ru website recommend that you consult a notary before drawing up a deed of gift.
• The deed of gift refers to a bilateral deed, which means that the agreement can only be canceled through the court.

Which is cheaper?

To answer the question of what is cheaper, let’s analyze how much a deed of gift and a will for an apartment cost in 2020.

Will. When drawing up a will and entering into an inheritance, you will have to pay a state fee and pay for notary services:

State duty:

• 100 rub. for registration of a will;
• 100 rub. for opening an inheritance case;
• 100 rub. for certifying the signature on the application for inheritance;
• 15,000 or more rubles. for property valuation;
• 0.3% of the value of the property for close relatives and 0.6% for other heirs upon receipt of a certificate of inheritance;
• 2,000 rub. for registering an apartment.

Notarial services:

• about 2100 rub. for registration of inheritance;
• about 800 rub. for filling out an application for inheritance;
• 300 rub. for familiarizing the heirs with the text of the will;
• about 4,300 rub. for issuing a certificate of inheritance.

Calculations show that for an apartment worth 3.0 million rubles. you will have to pay about 30.0 thousand rubles.

Deed of gift. When drawing up a gift agreement, there are two types of payment:

A lawyer or realtor for drawing up the text of the contract - 2.0-3.0 thousand rubles.

State duty in the amount of:

• 2,000 rub. for a house or building;
• 200 rub. for the apartment;
• 350 rub. for a plot of land;
• 850 rub. for a vehicle without a change of license plate;
• 2,000 rub. for registering property.

Close relatives (1st-2nd line of inheritance) are exempt from paying personal income tax. Everyone else will have to pay 13% of the value of the gift.

Conclusion: issuing a deed of gift for close relatives is more profitable financially.

But we should not forget that it is better for a distant relative to pay 13% income tax and own an apartment than to be left with nothing at all if the heirs contest the will through the court, as was written about at the beginning of the article.

Which is more reliable?

There is no clear answer as to which is more reliable, and there cannot be. It all depends on the specific situation.

Let's look at specific examples.

1. The husband left an apartment to his wife in his will. However, she was unable to obtain ownership of it, because minor children from her first marriage showed up and demanded their share, despite the fact that their father left them a cottage and an apartment in the city during the divorce.

Here, a deed of gift would be a more reliable option.

2. Aunt gave her nephew an expensive gift - an apartment. At the same time, there was a verbal agreement that she would live there until her death. The nephew got married and soon had children. It became difficult for two families to live together. The bride began to demand that her aunt move to a nursing home, in which her nephew soon supported her.

Here, on the contrary, it was not worth making a gift, but drawing up a will.

Risks for the donor

Of course, a gift agreement entails a number of obligations for the donor, and may also lead to adverse consequences. First of all, the donor must understand that by drawing up a gift agreement, he transfers ownership of the property free of charge and loses all rights to it - the rights of ownership, use, disposal.

The concept of a gift agreement excludes the possibility of transferring the donated property or property right after the death of the donor. Gifting is not inheritance. Legal practice knows of countless cases where, after taking possession of a donated apartment or house, elderly donors were placed in nursing homes or left in the care of distant relatives. It is quite difficult to recognize a gift agreement, drawn up legally correctly and with the common sense of the parties, as invalid. If, by oral agreement between the parties, the donor retains the right to use the property, he runs a high risk of finding himself, for example, without a roof over his head or without a means of subsistence.

Documents and contract execution

Unlike the execution of a will, which requires almost no documents, the execution of a gift agreement requires the preliminary preparation of a package of documentation.

The following documents will be required:

• Legal documents (certificate of inheritance, purchase and sale agreement, deed of gift);
• Technical (cadastral passport);
• Registration (certificate of state registration).

If the property belongs to a husband and wife under the right of joint ownership, the spouse's consent to the donation is required.

If the subject of the gift agreement is real estate, the owners (or residents) of which are minor children, it is necessary to obtain permission for the transaction from the guardianship and trusteeship authority. According to the law, a gift agreement is not subject to mandatory notarization - a simple written form of the document and signatures of the parties are sufficient. However, a notary seal on a document is an additional guarantee of verifying the legal capacity and true intentions of the parties, checking documents, agreeing on the terms of the transaction, and the legality of the conclusion. To conclude an agreement, the parties must provide passports or other documents proving their identity.

A completed real estate donation agreement must be registered with the Rosreestr authority. 1 month after the registration procedure, the recipient will receive a certificate of ownership and will become the full owner of the gift.

Advantages and disadvantages

Donating or bequeathing an apartment - which is better? In order to answer this question, it is necessary to compare the advantages and disadvantages of each of these two options for managing real estate.

Legal consequences

The legal consequences of the deed of gift are that the recipient receives the right to dispose of the donor’s real estate at his own discretion immediately after the agreement is executed. And the person who donated the apartment loses all rights to it.

Making a will has no legal consequences. They come later, after the death of the testator. The residential premises become the property of the person or several people indicated in the order of the deceased after the completion of legal actions to formalize the inheritance provided for by law.

Do I need my spouse's consent?

Notarized consent of the husband or wife is provided provided that the apartment was purchased during the marriage. If residential real estate was purchased before marriage, or was received under a gift agreement or by inheritance, then the consent of the spouse is not required.

Possibility to make changes and challenge

It is impossible to make changes to the gift agreement, since it comes into force immediately after its signing. It is also very difficult to challenge it. However, the relatives of the donor may try to do this, since the donated apartment is excluded from the inheritance.

A will can be changed at any time, since this document comes into force only after the death of the testator. Relatives can challenge it and invalidate it, but only after the death of the testator.

Potential Difficulties

Difficulties and problems may arise in such complex issues. The donor may regret his decision, but it will be almost impossible to help him in this case. The testator may not even include close relatives in his will, and they will be forced to defend their rights in court. Any problems should be resolved in the legal field using the services of lawyers.

What will cost less

The cost of registering the will of the property owner depends on a number of factors. Preparing all the necessary documents yourself will cost less. Lawyers' services are quite expensive - from 2 to 5 thousand rubles. To certify the donation agreement with a notary, you will need funds in the amount of up to one percent of the cost of the apartment. Registration of the transfer of ownership will cost 1000 rubles. In addition, if the recipient is not a relative of the donor, then he will have to pay income tax in the amount of 13 percent of the cadastral value of the housing.

When registering an inheritance on your own, you will need to pay a state fee of 1,000 rubles. In addition, first-stage heirs pay 0.3 percent of the cost of the inherited apartment, but not more than 100,000 rubles. Relatives of the second stage and strangers included in the will pay 0.6 percent of the value of residential real estate, but not more than 500,000 rubles. If you want to transfer the work of registering an inheritance to a lawyer, then for this you need to prepare about another 5,000 rubles.

Required documents

The list of documents that you must have to formalize a donation depends on who the gift is intended to be made to.

If the recipient is a relative of the donor, then to draw up the document you will need:

• passport;
• documentary evidence of the donor's ownership;
• technical passport of the apartment;
• a certificate of its cadastral value;
• certificate of the number of people registered in the living space;
• an extract from the personal account, which will confirm the absence of arrears in payment of utility bills;
• a certificate indicating that the apartment is not under arrest or pledged;
• If the recipient is under 18 years old, you will need to obtain permission from the guardianship authorities.

If the owner of the home wishes to donate it to an outsider or any organization, foundation, company (legal entity), then, in addition to the listed documents, he will need to provide the consent of all family members, certified by a notary.

To register a will with a notary, you will need the following documents:

• passport;
• document on the testator's property rights;
• a certificate confirming that he does not have mental illness;
• reliable information about the heir or heirs (passport details, contact phone numbers).

How documents are prepared

To donate an apartment or bequeath it, you need to take several actions.

Procedure for issuing a deed of gift:

1. Take a sample contract and study it.
2. Fill in all the required information in the contract.
3. Prepare a package of documents.
4. The donor and recipient sign the deed of gift.

If the owner of an apartment intends to bequeath it to one of his relatives or a stranger, then the action plan is not much different from donation.

The testator must do the following:

1. Contact a notary who will provide a sample will.
2. Write a will in accordance with the established requirements.
3. Provide the documents to the notary.
4. Sign the completed declaration of will.

How to usually make a will

If a person decides that a will is better than a deed of gift, then he will need to draw up this document. All adults and capable persons who have a Russian passport or residence permit have the right to do this.

The testamentary document must include all information about the heirs, as well as the property that will be transferred to them. You can even add the property you are planning to purchase to the list. All information can be presented in free form, but attention must be paid to ensuring that the document is clear, understandable and unambiguous.

The will must be certified by a notary. To do this, you can either contact the office or call a specialist at home or to a medical facility. After the notary checks the document and makes sure of its legality, he will sign and seal it. After this, we can assume that this official paper is valid.

If you do not take extreme cases such as an emergency situation that threatens death, or imprisonment, it is enough to come to the notary with a passport. To any notary office - there are no restrictions on place of residence or other characteristics.

Remember: you need to clearly and unambiguously record your will, so describe the heir in a recognizable way. If this is a relative, the wording “my son, full name” - or “my daughter, wife, brother, nephew” and so on is enough. You can add your date of birth, passport details and registration address. If you are drawing up a document in favor of a person who is not related to you, be sure to indicate his passport details and registration address, so that later there is no doubt that you have chosen this person as your heir.

Legislation on wills and donations

The execution of a will is regulated by Articles 1111, 1112, 1119 of the Civil Code of the Russian Federation and chapters 61-65 of this code.

The testator can change the will as many times as he wants during his life, which makes this method convenient for him. The heir will not receive the apartment until the death of the testator. Therefore, if during his life there are reasons why he decides not to leave the apartment as an inheritance to this person, then he will be able to change his decision.

Consequently, for the heir, transferring the apartment in this way is not very profitable, since he will be able to use it only after the death of the testator. Only then will the heir receive all rights to own the apartment, including the right to sell it.

A deed of gift, on the contrary, is beneficial for the recipient of the gift, since the apartment will become his full property immediately after the conclusion of the donation agreement. But this creates dangers for the donor. Since the deed of gift is a gratuitous act of transfer of property, the donor cannot set any additional conditions. Otherwise, the transaction will be considered void. As a result, he risks losing even the right to live in this apartment if the recipient of the gift wants to discharge him and sell the apartment.

The deed of gift is issued on the basis of Articles 572 and 574 of the Civil Code of the Russian Federation. The deed of gift for an apartment must be certified by a notary, as well as a will.

Due to these nuances, it is difficult to unequivocally answer the question of what is better - to donate or bequeath an apartment. Both options need to be assessed in relation to a specific situation. It is necessary to take into account the relationship between the donor and the recipient, the likelihood of risks for one of them, as well as the needs of the recipient of the apartment right now.

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.

Which is easier to cancel?

Cancellation of a gift/will and challenging it are different situations. I described the challenge below.

When making a will . The owner-testator can at any time and at his own request cancel his will, change it or draw up a new one - clauses 1 and 2 of Art. 1130 Civil Code of the Russian Federation. To cancel a will, it is enough to contact the same notary who certified it - the service costs 500 rubles. No one's consent is required for this. Also, the owner can sell/donate his property during his lifetime, even if he has previously executed a will. He won't even need to revoke the will.

When donating . Everything is much more complicated here. After registering the donation transaction in Rosreestr, the donor (former owner) no longer has the right to cancel everything at his own request. He will not be able to come to Rosreestr and return the property. After registering the gift deed, he is no longer its owner.

The donor will have only two options - ask the heir to re-donate the property to him or cancel the donation through the court. There is no other way. To win in court, the donor must have valid grounds for canceling the contract.

The donor will be able to cancel the donation through the court if the donee made an attempt on his life or the life of his family and close relatives, or intentionally caused bodily harm to the donor - clause 1 of Art. 578 Civil Code of the Russian Federation. All this needs to be PROVED, just words/arguments will not be enough - Art. 56 Code of Civil Procedure of the Russian Federation. Evidence must be in writing and with witnesses. In case of bodily injury, the donor must bring to the court a medical certificate about the beatings inflicted, a concluded examination, a court decision on an administrative offense or a sentence against the donee. If there was an attempt, then a court verdict.