“Deed of gift or will?” - many people ask this question, not understanding the difference between these concepts. Because of this, in case of transfer of property to relatives, problems arise. Before giving preference to one or another option, you need to evaluate their advantages and disadvantages.
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Will or deed of gift: differences Donation agreementWill - how to draw up and execute What is a secret will Will or deed of gift in Ukraine: taxes Which is better - deed of gift or will
In short, a deed of gift is a free transfer of one’s property for use.
A deed of gift differs from a will in that the transferred property goes to a specific person whose name is indicated in the document. A will guarantees a portion of the inheritance to those closest to the testator, even though the name of a specific person is written in the document.
After researching the issue, you can decide for yourself what is best for you - an inheritance or a gift.
Will or deed of gift: differences
What is better - a deed of gift or a will for an apartment? You can draw conclusions by analyzing the comparative table.
It is impossible to change your mind and cancel the gift agreement - unlike a will, which the testator can rewrite as many times as he wants. A deed of gift can only be challenged by going to court, even if the donor himself wants to change it. This can only be done in the following cases:
In such cases, the gift agreement can be terminated through the court within 1 year from the date of its conclusion.
Donation agreement
The deed of gift is drawn up in the presence of the person who decided to draw up this document. It is also possible to carry out the procedure through an authorized person who has a power of attorney drawn up by a notary. Also, to prepare a deed of gift, you will need papers for real estate.
A gift deed is an agreement drawn up in writing. According to it, the owner of the property transfers it into the possession of another person free of charge. The agreement is drawn up at the place of registration of the property with the help of a lawyer. The document can be certified upon request, and state registration is required.
A deed of gift deprives the donor of the right to possession of the gifted property. If a deed of gift is issued for the property, none of the legal heirs can claim it. The final verdict in such a situation can be made by a court decision.
As a rule, if a case goes to court, it drags on for a long time and still ends in nothing for the contesting party.
If the legal heirs have lost part of the property due to a will, they have good grounds to challenge such a decision in court.
How best to formalize an inheritance: deed of gift
A gift agreement can only be drawn up by an experienced lawyer. As a rule, this is a private or public notary. A deed of gift drawn up independently without the help of a notary has no legal force.
In exceptional situations, officials can draw up the document: chief doctors, heads of military units or places of detention, ship captains, administration of boarding houses for the elderly, and the like.
If there is no notary in the locality, then a local official can issue a deed of gift.
Will - how to draw up and execute
When making a will, proof of identity is provided. Pensioners still need a doctor's certificate of good mental health. A will must be drawn up in the presence of a notary. After the agreement is drawn up, the testator continues to own the property.
If it is an apartment, he can sell it or rent it out. A will can be changed even after it has been made. It may also be supplemented with new details or be completely canceled. This is the main difference from a deed of gift.
In the latter, the initial decision cannot be canceled or changed, since it is drawn up once.
Registration procedure
A will for property is drawn up in writing. The document indicates the time and place of preparation, and the signature of the originator is also required. If the author cannot personally sign the document, an authorized person can do it for him. The notary must document why the testator was unable to sign the document in person.
The will must be legalized by a notary or other person authorized by law. The document is usually drawn up personally by the testator. It is allowed when the will is written down by a lawyer from the words of the testator.
The notary must check the composition of the will and identify inaccurate interpretations in it that may affect its legality. The lawyer makes sure that the applicant’s will is exactly as stated in the will.
This will prevent problematic situations in the future.
All persons who have one or another relation to the drawing up of a will cannot disseminate information about the fact of drawing up the will, as well as about its contents.
What is a secret will
Even the notary does not know about the contents of the secret will. In this case, the testator gives the notary a sealed envelope with a personal signature. As confirmation, the notary puts a certifying inscription and seal on the sealed will. All this happens in the presence of the testator. The envelope with the document is sealed in another envelope, which, in turn, is sealed.
After information about the opening of the inheritance is received, the lawyer announces the date for disclosing the contents. Upon the announcement, a protocol is drawn up. It is signed by the notary and the witnesses present. The contents of the will are also recorded in the minutes.
Will or deed of gift in Ukraine: taxes
According to the tax legislation of Ukraine for 2018, when concluding gift agreements, the same rules apply as for inheritance.
The donor can be either an individual or a legal entity - an enterprise. But in this case, only an individual can be the testator.
Tax payment both when receiving an inheritance and when giving a gift is divided into several rates:
Which is better - a deed of gift or a will?
However, he cannot dispose of his apartment, for example, sell or donate it. He can live in it until his death.
He cannot own and dispose of the house/apartment. He can live in the housing only if the new owner grants such a right.
So, what is better to draw up - a deed of gift or a will? The answer to this question is ambiguous. Both deeds of gift and wills have their strengths and weaknesses.
It so happens that in Ukraine the process of entering into an inheritance is a labor-intensive process. However, with recent changes the procedure has become somewhat simpler. Even if you missed the deadline for registering the inheritance, you retain all the rights of an heir.
Knowing what a gift or will is, you can transfer/receive property without stress and large financial costs.
How to convert a will into a deed of gift
In many countries, the last will of the deceased is law. However, in our country any will can be challenged.
It is not uncommon for cases when, after the death of a person, numerous distant and close relatives immediately appear, claiming inheritance, including real estate, especially in the capital.
How can you be sure to bequeath housing to your children so that no one can deprive them of even part of the inheritance that you would like to leave them? And is this possible within the framework of current legislation?
Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.
If you want to find out how to solve your particular problem, please use the online consultant form on the right or call the numbers provided on the website. It's fast and free!
Content:
- Is it possible to convert a will into a deed of gift and how can this be done?
- Will or deed of gift - which is better and cheaper?
- Conversion of a will into a deed of gift
- “Deed of Gift” and will: what is the difference?
- alteration of a will into a deed of gift.
- How is it guaranteed to bequeath housing to children and protect them from other heirs?
- How to rewrite a will as a deed of gift?
- What is better - a will or a deed of gift?
- Features of donation after the death of the donor
- How to convert a will into a gift deed if the recipient lives in another city?
Is it possible to convert a will into a deed of gift and how can this be done?
What is the best way to proceed: It happens that a grandmother, while still alive, writes a deed of gift for an apartment for her granddaughter. The granddaughter keeps the deed of gift, and after death it turns out: It happens differently.
Our newspaper wrote about how a lonely elderly woman decided to help her relatives. One day it became known that a large shopping center would be built next to her house, and the house itself was included in the resettlement plan.
And then the woman decided that all owners of the house would be provided with separate living space during the resettlement. She executed a deed of gift for a share in her house to her niece and a couple of other distant relatives. It turned out that by that time the donor was no longer the owner of even the smallest share of the house, she was only registered there.
Meanwhile, resettlement was delayed. Lawyers did not find any legal grounds for terminating the gift agreement. Therefore, before deciding whether to donate or bequeath an apartment, you should also think about what kind of relationship you have with your relatives. At the same time, it is worth clarifying all the legal consequences of your choice.
This is what we will do. What does it mean to give? A real estate donation agreement is an agreement under which one party, the Donor, free of charge, that is, without receiving payment or any other counterclaim, transfers or undertakes to transfer ownership of real estate to the other party, the Donee.
Lawyers consider such a transaction to be void, that is, invalid, since the basic principle of the gift transaction is violated - gratuitousness. If there are conditions for a counterclaim, the contract is not considered a donation and is recognized as a sham transaction.
In particular, an agreement providing for the transfer of a gift after the death of the donor is considered void. Inheritance rules apply to these types of transactions.
Is it possible to give as a gift with a condition? In this case, the contract may provide for special conditions that the donee must fulfill in order to receive residential premises.
But such an event provided for by the contract cannot be the death of the donor, since such a contract is invalid.
A promise to donate all of one’s property or part of one’s entire property without indicating a specific object of donation in the form of a thing, right or release from an obligation is void.
The contract of promise of donation must be drawn up in writing and registered with the office of Rosreestr (former Federal Reserve Service), where it is noted that an encumbrance has arisen on this apartment. True, such agreements are quite rare.
How to properly draw up a real estate donation agreement? A gift agreement can be drawn up by a notary, but the law does not require mandatory notarization of this agreement.
The advantage of notarization is that the notary testifies to the legal capacity of both parties who sign the agreement. He also keeps a duplicate of the contract, which has legal force in case of loss of documents.
The disadvantages include, of course, the cost of notarization, as well as the fact that the notary is not responsible for the fulfillment by the parties of their obligations under this agreement and for its content.
What must be specified when drawing up a gift agreement? Parties, that is, the donor and the donee: When the subject of the gift agreement is real estate, its characteristics indicated in the explanation and floor plan should be described: They must mention on the basis of which documents the right to real estate belongs to the donor.
If the gift agreement is concluded by power of attorney, then it is referred to: What is the difference between donation and bequest of an apartment? Donation, according to Art. By donating a thing, the donor loses the rights of the owner and, with some exceptions, the ability to change anything.
A will is a transaction containing the disposition of property in the event of death Art. The testator retains the powers of the owner; he has the right to change or cancel the will he made at any time. Which is more profitable?
Gift or bequeath? And, of course, he is free to dispose of it as he pleases. As for the will, the last written will is considered valid. And here some are faced with a very important, but little-known legal subtlety. Naturally, the mother bequeathed the apartment to her daughter.
In the situation described, it would be wiser for mother and daughter to enter into a gift agreement. Then, at the time of the mother’s death, the owner of the apartment would be the daughter. Accordingly, the son could in no way claim his share of the inheritance.
Therefore, when drawing up a will, you should consult with a lawyer to be sure: What about the comparison between gift tax and inheritance tax? Gifts between close relatives are exempt from this tax. Therefore, it is more profitable to make a gift agreement between close relatives.
As for a will, property is acquired indirectly, after a long period of time, and heirs may always appear who have the right to an obligatory share, disabled people, dependents.
In addition, a will can always be redone. Considering that the testator may be in the hospital, and the head physician has the right in crisis situations to perform the function of a notary, that is, to certify the signature, a person, under the influence of certain persons, may change his mind and draw up a new will.
The only disadvantage of a gift agreement is that the donor ceases to be the owner and, thereby, becomes defenseless. Therefore, it is necessary to somehow secure the rights to use this residential premises.
If a person reserves the right of residence and does not require any funds for it, as, for example, in a lifelong maintenance agreement, when a certain amount is paid monthly, then nothing interferes with the gift agreement.
Of course, even if the former owner has secured the right of residence, the donee may behave differently. This raises the question of the degree of trust. In general, a gift agreement is more beneficial to the recipient.
A will is more beneficial to the one who leaves a will: According to the Law of the Russian Federation on buildings, premises and structures passed by inheritance, tax is levied on the heirs from the moment the inheritance is opened.
In accordance with paragraph 1 of Article 3 of the Law, representative bodies of local self-government have the right to set tax rates on buildings, premises and structures depending on the total inventory value, as well as determine the differentiation of rates within the established limits from 0.1 to 2 percent depending on the total inventory value cost, type of use and other criteria.
In particular, the City Duma of Nizhny Novgorod in the Resolution of December 22 of Novgorod dated
Will or deed of gift - which is better and cheaper?
What is better - a deed of gift or a will for an apartment? Is it true that if you draw up a deed of gift, then you are no longer the owner and you can be asked to vacate at any time? They say that a will can be changed, but a deed of gift cannot, right?
Tyumen Super Bunny, you are confusing something!!! If there is a will, then let the rest of the heirs rest, and it doesn’t matter whether it’s the first or the second, the exception, as I already wrote, is dependents living and registered at the time of death with the testator!
Pros and cons of drawing up a will for an apartment When drawing up a will, the testator should familiarize himself with the possible pros and cons of drawing up this document.
Often, citizens wish to transfer the property they own on the basis of a gift agreement; such an agreement has both similar aspects and fundamental differences with a testamentary disposition.
The owner should clearly understand the advantages and disadvantages, as well as the legal consequences of concluding each transaction, before deciding on a specific method of transferring the apartment free of charge.
The current legislation of the Russian Federation contains grounds for challenging donations and wills, specifies the time limits for taking possession, and specifies restrictions associated with the inheritance process. Despite the fact that the drafter, at his own discretion, changes and cancels the document, determines the circle of heirs, and deprives him of inheritance, the legislator has established specific requirements for the execution of the act, which are mandatory for compliance, regardless of the personal preferences and wishes of the testator.
Conversion of a will into a deed of gift
We tried to present all the arguments “Pros” and “Cons”. And you can always call us and describe your situation. Call and consult! A will, as is known, comes into force after the death of the testator, and during his lifetime the property does not leave his property.
If a citizen decides during his lifetime to donate an apartment, room, cottage or other property to re-register in the name of his loved ones, dear people or other citizens, then ownership passes from the current owner to the new one from the date of state registration of the transfer of ownership, that is, in simple words: What is the best way to proceed? : Donation in a simplified form, without additional collection of documents, may soon end. Read about this page. If you cannot determine what is best to do:
“Deed of Gift” and will: what is the difference?
January 29, Category: Legal assistance It seems that everyone knows everything about the procedures of wills and donations.
However, at free legal consultations in the Estonian bureau of MEP Yana Toom, it turns out that there are still many, many blind spots for people on this topic. Answered by Elena Ezhova, a lawyer at the Human Rights Information Center.
My husband showed me his will, in which it is written that after his death everything will belong to me, but if I die before him, then everything will go to his brother.
Show number When a gift is not a joy First of all, giving real estate in accordance with the article of the Civil Code is simply prohibited on behalf of minors and incapacitated citizens.
The deed of gift for an apartment or house is drawn up by a notary; this is regulated by the Civil Code of Ukraine, Part.
A deed of gift for an apartment or a house in Ukraine is drawn up at the location of the property that is being donated or at the place of registration of one of the subjects of the transaction.
The procedure for preparing and executing a deed of gift for an apartment or house in Ukraine The procedure for preparing a deed of gift can be divided into four stages: Preparatory work by a notary:
alteration of a will into a deed of gift
Until the death of the testator and the opening of the inheritance, it is not known who exactly will become the heir, and therefore, after the reading of the will, unpleasant surprises may arise.
Also, sometimes the testator himself wants to change his last will, completely or partially rewrite a previously certified document. And then the question arises of how to revoke a will.
There are several legal options for doing this.
Work and Career Gift. Advantages and disadvantages! Don’t know the difference between a deed of gift and a will? Detailed recommendations and free sample documents are here! Analyze and download. If a situation arises where you need to re-register ownership in favor of certain relatives, then there are two registration methods for this:
How is it guaranteed to bequeath housing to children and protect them from other heirs?
What is the best way to proceed: Many people sooner or later face a situation when they need to make a choice between a deed of gift and a will.
The question of which form of transfer of an apartment or other property is preferable - a will or a gift - is very important.
For example, elderly relatives plan to transfer an apartment or some other property for personal use and want to do this in such a way that it cannot be disputed later. This is where the question arises:
What is better - a will or a deed of gift? Should I bequeath or donate an apartment, house, land? Look on this page.
What is the best way to proceed: It happens that a grandmother, while still alive, writes a deed of gift for an apartment for her granddaughter. The granddaughter keeps the deed of gift, and after death it turns out:
How to rewrite a will as a deed of gift?
Giving is worse than bequeathing: How to protect yourself from the possibility of being left without a roof over your head by trying to help solve the housing problem of someone close to you? I give... “There is a significant difference between donation and will agreements,” says Margarita Anatolyevna. That is, a will depends only on the will of the person himself, and a donation depends on two people.
What is better - a will or a deed of gift?
How can I find out if there is a will? Register of Wills of Ukraine Law of Ukraine on Wills The law does not limit testators in choosing their heirs. Therefore, the testator can make close relatives, third parties, the state or an organization his successor. Testators have the right to deprive any person belonging to the category of legal heirs of a share of the inheritance.
Thursday, It’s no secret that people often get into trouble and then remember the famous Russian proverb:
What you should not forget It is useful to assess the possible reaction to the transfer of property to the chosen person on the part of relatives or other possible heirs.
In addition, find out whether this person agrees to accept the gift or enter into an inheritance.
Contrary to the well-known saying: Among the reasons, for example, the need to pay taxes, the presence of an encumbrance, the possible illiquidity of property, fear of fraud, etc.
Features of donation after the death of the donor
Important A verbal order for a gift that the recipient can accept only after the death of the donor is illegal. This rule applies to gifts between citizens of cars, household items, furniture, household appliances, etc.
The form of the transaction for donating real estate is more strict: Roughly speaking, the donor has the right to write a gift agreement by hand, and the recipient of the gift will be able to transfer the real estate to himself under this agreement; all terms of the gift agreement must be set out in accordance with Russian legislation and civil rules.
That is why those wishing to make a gift are recommended to contact notaries to draw up a notarized gift agreement, since the notary will be able to draw up the correct text of the transaction.
How to convert a will into a gift deed if the recipient lives in another city?
Is it possible to draw up a deed of gift before entering into an inheritance? Entering into an inheritance under a gift agreement Entering into an inheritance of real estate under a gift deed is a procedure that, according to the law, cannot last more than 18 days, not including the period of paperwork. In this regard, inheritance under a deed of gift is many times simpler than under a will, when the treasured real estate passes into legal possession only 6 months after the death of the maker of the will.
How to transfer real estate correctly
Real estate can be bequeathed, donated, entered into a rental agreement, or simply sold. The main thing is to do this correctly and legally, so that the recipient of the housing does not have unnecessary disputes.
When choosing a method of alienation, it is necessary to remember that in addition to our desires, there is a law regulating the execution of a transaction for the alienation of real estate. Although, ultimately, the future fate of his property is determined by its owner.
By inheritance
“Citizens of Kazakhstan have the opportunity to bequeath their property (including real estate, land plots and even enterprises), says Saken Eshmuratov, a lawyer at Moving Company LLP. — According to Kazakh legislation, there are 2 methods of inheritance: will and law.
Inheritance by law occurs in the following order:
- children, spouse and parents of the testator;
- brothers, sisters, grandparents;
- uncles and aunts;
- great-grandparents of the testator and further according to the degree of relationship, as they say, “up to the seventh generation.”
The state modestly ranks last on this list. Of course, such a detailed list of heirs practically eliminates the possibility of inherited property becoming escheated, that is, when it completely becomes state property (Article 1083 of the Civil Code of the Republic of Kazakhstan).
If you are not satisfied with this order, or you do not have heirs or, on the contrary, there are too many of them, and you want the property you have accumulated to pass to a specific person, then draw up a will.
A will is a way to independently dispose of your property (including real estate) in the event of death. This document must be written by the testator or recorded from his words by a notary.
In this case, the testator must be fully capable, understand the meaning of his actions and manage them.
A will is drawn up in writing, signed by the testator himself and must be certified by a notary or other officials specified in the law.
- It is appropriate to note that according to the Civil Code of the Republic of Kazakhstan, heirs under a will have a preferential right of inheritance over heirs by law. Paragraph 2 of Article 1039 of the Civil Code of the Republic of Kazakhstan reads:
- “Inheritance by law takes place when there is no will or does not determine the fate of the entire inheritance, as well as in other cases established by this Code.”
- Having executed a will, the owner of the property can still dispose of the property at his own discretion (sell it, donate it or even exchange it, since he remains its owner, because ownership of the bequeathed property passes to the person specified in the will only in the event of the death of the testator.
- To draw up a will, you need to come to the notary with an identity document, information about the heirs (full name and date of birth), and you also need to make a list of property that needs to be disposed of.
The notary needs real estate documents to more accurately describe the property when drawing up a will. For example, you own a dacha, a residential building and a garage and want to divide this property between people close to you. Then the will must specifically indicate: a dacha at such and such an address for the parents, a residential building with a plot of land for the wife, and a garage for the children.
But the presence of a will does not prevent minor or disabled children of the testator, as well as disabled spouses and parents from receiving an inheritance (the so-called obligatory share). It’s just that this share will be less than if they inherited it by law (Article 1069 of the Civil Code of the Republic of Kazakhstan).
It is important for heirs to remember that there is a limited time period for accepting an inheritance by law and by will or for refusing it - it is 6 months from the date of opening of the inheritance.
The day of opening of the inheritance is the day of death of the testator.
Therefore, it is necessary to submit an application for a certificate of inheritance to a notary within 6 months from the date of opening of the inheritance, and not after this period, as many people mistakenly think.
Persons for whom the right of inheritance arises only as a result of non-acceptance of the inheritance by another heir may accept it within 3 months from the date of expiration of the main period for accepting the inheritance.
I'll give it away forever and for nothing
In addition to inheritance, ownership of real estate can be transferred to another person under a gift agreement, which is commonly called a “deed of gift.”
Article 506 of the Civil Code of the Republic of Kazakhstan in this regard states: “Under a gift agreement, one party (donor) gratuitously transfers or undertakes to transfer to the other party (donee) a thing in ownership or a property right (claim) to himself or a third party, or releases or undertakes to release her from property liability to herself or to a third party.”
“The peculiarity of concluding a gift agreement is that it is unconditional,” notes Saken Eshmuratov. - What this means is that if you gave it, it means you gave it for good and for free without any conditions. Thus, from the moment of registration of ownership in the Public Service Center, real estate becomes the property of the donee.
In this case, all rights to use and dispose of the real estate are transferred to the donee. He will dispose of the apartment, house and other property as he wants - sell it, exchange it, or give it to someone as a gift.
There are no restrictions, so you need to understand that having made such a transaction, a person ceases to be the owner of his property, and free of charge.
If the will is signed only by the testator, then the deed of gift is signed by both the owner of the property and the person to whom it is given. The transaction is drawn up by a notary. To do this you need to have:
- title documents for real estate (purchase and sale agreement, privatization agreement, exchange agreement, etc.);
- technical passport for an apartment or household;
- cadastral certificate about registered rights (encumbrances) on real estate (house, as well as land) and transactions with it. Issued by the Department of Justice through public service centers at the location of the property;
- ID cards of the donor and the recipient.
If real estate was acquired during marriage, and not received as a gift or inheritance, the donor's spouse is involved in the transaction with a marriage certificate and identification card.
Refusal to accept a gift is possible only in the interval between the time the donee learned about the donation of property and the transfer of this property (Article 507 of the Civil Code of the Republic of Kazakhstan). According to the law, the transfer of real estate is considered to be the transfer of documents certifying ownership of it, but only after their state registration in the Public Service Center.
Donation of real estate, which is jointly owned by several persons, is possible only with the consent of all its participants. If the apartment is jointly owned by spouses, those wishing to donate it will have to obtain the written consent of the spouse.
One of the significant differences between a gift agreement and a will is that only the benefactor can challenge it, but a will can be challenged by any of the testator’s relatives.
It should be noted that the legislation does not allow donations on behalf of minors and incapacitated citizens by their legal representatives, employees of medical, educational, social and other similar institutions, citizens undergoing treatment, maintenance or upbringing there, spouses and relatives of these citizens, as well as donations civil servants in connection with their official position or in connection with the performance of their official duties (Article 509 of the Civil Code of the Republic of Kazakhstan).
The benefactor has the right to cancel the donation if he survives the donee, but this condition must be reflected in the contract.
In addition, cancellation is possible if the donee made an attempt on the life of the donor, one of his family members or close relatives, or intentionally caused bodily harm to the donor (Article 512 of the Civil Code of the Republic of Kazakhstan).
The gift agreement can be canceled by agreement of the parties or in court, with the obligatory proof by the donor of compelling reasons and grounds.
Dependent, but with condition
In some cases, the alienation of real estate is possible by concluding a lifelong maintenance agreement with a dependent (a type of lifelong annuity). This deal is not yet widespread in Kazakhstan.
The fact is that many citizens of the Republic of Kazakhstan began to own private property quite recently - after the state gained independence and privatization of residential premises in the early 90s.
Rent as a way of alienating real estate to other people, and not necessarily relatives, is provided for by law and is described in great detail in the Civil Code.
Under this agreement, the annuity recipient transfers real estate belonging only to him (a residential building, apartment, land plot and other real estate) into the ownership of the annuity payer, who undertakes to provide lifelong maintenance with the dependency of this citizen and (or) a third party specified by him (clause 1 of Article 535 Civil Code of the Republic of Kazakhstan). The main thing in this agreement is that the obligation of lifelong maintenance with a dependent terminates with the death of the annuitant.
Immediately after the conclusion of such an agreement, the annuity recipient ceases to be the owner of the residential building (apartment) in exchange for full security until death. But he can retain the right to live in “his former real estate”, subject to the inclusion of this clause in the rental agreement.
When drawing up a rental agreement, as with any transaction involving the alienation of real estate, you must be extremely careful. The lifelong support agreement with dependents should specify all the necessary conditions for payments or maintenance. After all, it is not always possible to protect yourself from violations of the terms of the contract, and quarrels and disagreements that arise can become the reason for its termination.
Gift or rent
The situation is very common: an old woman has a granddaughter to whom she wants to bequeath a residential house and all her property. There is also a “prodigal son” who is not interested in his mother, who also drinks heavily, but is already a pensioner (disabled).
In this case, a will is not the best choice, because it can be challenged in court, due to the fact that the son, even with a will, has the right by law to an obligatory share in the inheritance. Obviously, the old woman can draw up a gift agreement or, even better, an annuity agreement.
The granddaughter, even if married, will be the sole owner of the property received as a gift.
Testamentary refusal
Or here’s another familiar story: people remarry. The man has real estate and children from his first marriage.
How to manage an apartment, a dacha? After all, the second wife is no longer young, and if you leave a will in her name, then after her death the property will go to strangers. And if you draw up a will for the children, then the second wife will simply have nowhere to live.
In this case, the current legislation provides for the execution of a will with a testamentary refusal (legate). Paragraph 4 of Article 1057 of the Civil Code of the Republic of Kazakhstan reads:
“On the heir to whom a residential building or residential premises is transferred, the testator has the right to impose an obligation to provide another person with lifelong use of the residential premises or a certain part thereof. Upon subsequent transfer of ownership of the residential premises, the right of lifelong use remains in force.”
The right of lifelong use is inalienable, non-transferable and does not pass to the heirs of the legatee. The right of lifelong use granted to the legatee is not the basis for residence of members of his family, unless otherwise specified in the will.” So, having established a will in favor of a loved one, you can safely bequeath the property to your children and grandchildren.
It is impossible to foresee all possible life situations. And a person who does not know the intricacies of the law can be misled and lose his property.
Therefore, even if it seems to you that the situation is absolutely obvious, still be sure to consult with a notary or lawyer who will evaluate all controversial issues.
In addition, it is useful for everyone to know about the possibilities of disposing of their property during their lifetime in order to avoid adverse consequences for themselves and for their loved ones.
Information service kn.kz
The reader is interested in: what is more profitable, a gift or a will?
“I heard that real estate can be donated or bequeathed. What is the difference between these operations and which one is more profitable for me? I would also like to know what an inheritance agreement is,” writes the reader.
Notary Christel Yanese answers:
According to the current price list, the price for certifying a will by a notary is fixed and amounts to 32.55 euros. A mutual will between spouses costs 41.50 euros.
The notary fee for the gift deed depends on the value of the gift. For example, if an apartment property worth 3800 euros is donated, the notary fee is 44.70 euros.
If the cost of the apartment is 10,000 euros, the notary will have to pay 51.40 euros, and if the object of donation is even more expensive, for example, it costs 50,000 euros, then the notary’s fee will be 167.40 euros.
Please note that sales tax is also added here.
But you cannot rely only on the size of the notary fee. The main thing is whether you want to lose your property during your lifetime or prefer it to happen only after your death.
It is clear that if a person wants to remain the owner of his property until the last day of his life, he should forget about the deed of gift and write a will or enter into a testamentary agreement.
In a will, a person disposes of his property in the event of his death. This means that the heirs specified in the will acquire ownership of the testator’s property only after his death. When concluding a gift agreement, or deed of gift, the property of the donor passes to the donor during the life of the donor.
When revoking a will, no one's consent is needed: if the person mentioned in the will, due to his bad behavior or improper attitude towards the testator, loses his trust, then the testator simply draws up a new will.
In the case of a gift agreement, the procedure is more complicated.
According to the Law of Obligations Law, the donor may withdraw from the contract if: 1) the donor has shown malicious ingratitude towards the donor or his relatives by his behavior; 2) if, in the event of execution of the contract, the donor will lose the ability to fulfill the obligation arising from law to provide maintenance to a dependent or reasonable maintenance for himself, except in the case where the donor himself intentionally or through gross negligence put himself in such a situation, or if the donee pays the necessary contents amount of money; 3) the recipient of the gift unjustifiably fails to fulfill the duties or conditions associated with the gift.
The donor may withdraw from the contract within one year from the day on which he became aware or should have become aware of the emergence of his right to withdraw. If a gift agreement is executed, the donor does not have the right to withdraw from the agreement after the death of the donee.
An inheritance agreement differs from a will in that it necessarily requires notarization. There are also two parties to the agreement - the testator and the heir, and the inheritance agreement can only be changed with the consent of the other party.
How to painlessly transfer real estate to your relatives: gift, will, purchase and sale
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15.09.2014 | 12:30 112921
The most acceptable option for transferring real estate into the ownership of relatives is a gift agreement. However, much depends on the specific situation: the degree of kinship, family relationships... In some cases, a will is more profitable, much less often - a purchase and sale agreement.
Most often, the decision to donate, bequeath or draw up a purchase and sale agreement is made depending on subsequent expenses. What is the best way to transfer property to relatives?
What do we choose from?
Let's make a reservation right away. Sales and purchase agreements are rarely used between close relatives. The purchase and sale agreement does not have any advantages for spouses, parents, children (including adopted children), grandfathers, grandchildren and other relatives.
Except for the timing of registration: the buyer under the purchase and sale agreement can become a full owner of the property just a month after submitting documents for state registration. For those entering into a civil marriage, donation is also not suitable - it is better to correctly draw up a purchase and sale agreement.
Otherwise, buying and selling is not the best option for close relatives. An apartment purchased under a purchase and sale agreement will be the joint property of the spouses, and in the event of a divorce, your spouse may claim an equal share of the “gift”.
When concluding a purchase and sale transaction between close relatives, it is impossible to make a property tax deduction. Unlike a will or deed of gift, an owner who has owned real estate for less than three years will be required to pay income tax for an individual if the value of the property exceeds a million rubles.
If real payment, that is, transfer of money, does not occur under the purchase and sale agreement, then the transaction is considered void (feigned). Actually, that is why it does not apply to close relatives.
The most frequently used instruments in relations between close relatives regarding the transfer of real estate remain the gift agreement and the will. In both of these cases, there is no fact of transfer of funds, and therefore this is not a sale or purchase. But which is better, a deed of gift or a will?
According to Elena Vasilevskaya, manager of the Petrograd branch of the Advex. Real estate,” people often confuse donation with will, not understanding the essence of these transactions: “In both cases, the owner transfers his property to another person free of charge. The difference between these two procedures is the moment of transfer of ownership of the property.”
According to a will, real estate becomes the property of the heir only after the death of the owner. In the case of a gift agreement - immediately after registration in Rosreestr. In addition, the will must be certified by a notary, whereas this is not necessary when drawing up a deed of gift.
Otherwise, the choice of whether to give or bequeath depends on family circumstances and the relationship between relatives.
Why is a gift better?
According to the deputy director of the Bekar Academy of Sciences, Leonid Sandalov, the gift scheme is most often used between close relatives, since according to the law they may not pay tax.
If the gift agreement is drawn up between “unrelated souls”, then it will be necessary to pay income tax for an individual on the book value of the apartment.
“The second option, when using this type of agreement is quite profitable, is buying a room or a share in an apartment,” the expert believes.
- In general, a gift agreement has a number of undeniable advantages even over a will.
- However, even if a gift agreement is concluded, a number of problems may arise.
The advantages of donation include, first of all, the level of taxation and the cost of registration, which is lower in comparison with the inheritance procedure. In the case of close relatives, the law does not provide for personal income tax and the tax on property transferred by gift is abolished. You only need to pay a state fee for state registration of rights to real estate and for registration of a gift agreement. Distant relatives and unrelated persons pay personal income tax - 13% of the income received. “Theoretically, the price of a gift is set by the donor, who can indicate any amount, for example one ruble. However, this will give rise to disputes on the part of the tax authorities, so the majority prefers to avoid such actions,” notes Vladimir Sparak, Deputy General Director of the ARIN Academy of Sciences. Lawyers note that a gift agreement is the least contestable document. Cancellation of a gift to close relatives is extremely rare. Among other things, a gift agreement requires a minimum number of documents (you don’t even need an extract from your personal account and a deed of transfer). The transaction can be concluded in simple written form. In this case, the recipient can immediately move into the apartment or sell it - there is no need to wait six months, as in the case of registration of an inheritance or the death of the owner during the will. This is very good for the person to whom the “gift” is intended, but not always for the giver himself. After signing the gift agreement, the object will belong exclusively to the person who accepted the gift. It is not subject to the rule of common property of spouses; accordingly, only you personally, and not your beloved half, will be able to dispose of the donated real estate. It is very important that when donating, the right of pre-emption does not apply. For example, the owner of a share in an apartment, if he wants to donate this share, is not obliged to offer the pre-emptive right to purchase to other co-owners of this housing.
When a gift is not a joy
First of all, donating real estate in accordance with Article 575 of the Civil Code is simply prohibited on behalf of minors and incapacitated citizens.
Such gifts to civil servants are also not welcome if such an expensive gift is related to their official position and the performance of their duties.
It will not be possible to donate an apartment to employees of educational and medical institutions or social protection institutions on behalf of people who are there for treatment, education or maintenance. A gift agreement between commercial organizations will be considered illegal.
Every homeowner who wants to give it to anyone must understand that after signing the appropriate agreement, the giftee becomes the full owner of the donated property and can evict the donor at any time. “People often go to court with a request to invalidate a gift agreement.
For example, they wanted to inherit an apartment, but without understanding all the intricacies, they signed a gift agreement instead of a will, thereby depriving themselves of property. In such cases, it is very difficult, almost impossible, to prove that a person was mistaken,” notes Elena Vasilevskaya.
“But it’s easier to cancel a will by visiting a notary and rewriting the document or drawing up a new one in favor of another person.”
Theoretically, the gift agreement can also be questioned. It is possible that the judge will take into account the loss of health and a change in the donor’s standard of living for the worse as a result of the gift of property. Or during the trial the illegal actions of the donee in relation to the donor will be proven. Sometimes, the actions of the donee in relation to the donated property, leading to its damage or loss, may be taken as evidence for canceling a donation.
In practice, the most popular case when the court can actually side with those who advocate the abolition of donations is Article 177 of the Civil Code of the Russian Federation (invalidity of a transaction made by a citizen unable to understand the meaning of his actions or manage them).
Usually in this situation, the applicants are the direct heirs - the children of a very elderly or deceased donor. If there were no deed of gift, the inheritance would be divided equally among the children. However, the gift deed was executed only with one of the children.
In this case, deprived children refer to the incapacitated state of the donor. The evidence used is the conclusion of a psychiatric forensic examination, medical documentation, testimony of witnesses in the case, photographs and videos, documents from social services, etc.
And yet, most experts are sure: it is extremely difficult to challenge a gift agreement that is correctly drawn up and signed by both parties.
Popular gifts
Specialist "Advex. Real Estate" notes the two most popular cases of transfer of real estate under a gift agreement. Firstly, in difficult situations, when neighbors in a communal apartment blackmail the seller of the room with their pre-emptive right to purchase. In such circumstances, a “two-step deal” is usually practiced.
First, the buyer is given a share in the room, and then everything else is sold as a new owner who has equal rights with everyone else. In the second case, we are talking about dividing the inheritance between children. For example, a woman has a daughter and a disabled son who drinks.
The mother bequeathed the apartment to her daughter, but after the will came into force, the son received two-thirds of half the living space as a disabled heir. In this situation, it was wiser for mother and daughter to enter into a gift agreement. According to Vladimir Sparak, in the case of rooms in communal apartments or the transfer of part of an apartment, a gift agreement is sometimes a necessary measure.
“If in order to conclude a purchase and sale agreement it is necessary to collect waivers of the pre-emptive right to purchase, then this is not required when concluding a gift agreement,” he says.
Anna Gorbenko, consultant to the Real Estate Commission of the Consumer Society of St. Petersburg and the Leningrad Region, considers the most popular options for re-registration of property through donation to be an agreement between relatives, for example, when a grandmother gives an apartment to her grandson.
“However, sometimes these agreements are used to cover up a purchase and sale transaction: so that the right of first refusal is not required or so as not to pay income tax on the sale (if the owner has owned the apartment for less than three years),” the expert notes. In general, a gift deed is the optimal form of transfer of real estate between close relatives.
It is quite difficult to challenge it, although it all depends on the situation. And consulting a good lawyer won't hurt.
Text: Dmitry Naumkin Photo: Alexey Alexandronok
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