Apartment will agreement. Which is better: a will or a gift? What is the difference between a deed of gift and a will, which is more profitable and cheaper? By the recipient of the inheritance

Let's say you own an apartment that you want to leave to a loved one. There are few ways: either make a will or a deed of gift. Each of these documents has its pros and cons - financial, legal, physical, and there are few situations where both donation and wills could be equally convenient - one of these methods is always more attractive. About how to determine what is more profitable in your situation, the specialists of the MIC Group tell.
To begin with, it is worth considering the issue from a financial point of view. Although the tax on property received by way of inheritance or donation was abolished back in 2006, it will still not be possible to avoid some expenses either with a will or a donation. Let's start with the testament. To execute it, you will have to pay about 1,000 rubles to the notary and pay a state duty of 100 rubles (150 if you call a notary to your home or hospital). Subsequently, in order to obtain a certificate of inheritance, the heir will have to pay: 0.3% of the value of the property according to the BTI, but not more than 100,000 rubles in case of close relationship (children, parents, brothers and sisters, spouses) or 0.6 %, but not more than 1,000,000 rubles in the absence of a close relationship. He will also need to formalize the ownership of the inheritance on the basis of a certificate. To do this, you will have to pay a state duty in the amount of 1000 rubles. A separate question that worries most people is whether it is necessary to pay personal income tax? No, don't. According to paragraph 18 of Article 217 of the Tax Code of the Russian Federation, income received by inheritance in cash and in kind is not taxed, regardless of the degree of relationship (it may not be at all). The donation agreement also requires certain expenses. Although it is drawn up in a simple written form and does not require mandatory certification by a notary, it is better to draw it up with the help of an experienced lawyer or realtor, whose services will cost from 5 thousand rubles. After the contract is written, it is necessary to register it with Rosreestr. Two sets of documents will have to be submitted simultaneously: for registration of a donation agreement and for registration of ownership of real estate for a new owner. For each of them you will have to pay a state duty in the amount of 1000 rubles. The most unpleasant expense item is the personal income tax in the amount of 13% of the cost of the apartment, according to the BTI. But, according to the same Article 217, close relatives of the donor are exempted from it. Thus, if you want to bequeath property to a close relative, then a deed of gift will come out cheaper, since you do not have to pay personal income tax. If we are talking about distant relatives or friends, then it is better to make a will, because 0.6% of the value of the property is much less than 13%. Other registration costs in both cases are approximately equal. But in addition to monetary differences, donations and wills have some other differences. It all depends on the specific circumstances. For example, if you have obligatory heirs (pensioners, minor children, disabled people), and you want to bequeath an apartment to someone alone, then a deed of gift is best. Otherwise, relatives, regardless of the will, will be able to take 2/3 of the share due to them by law in the absence of a will. Also, a deed of gift, unlike a will, cannot be challenged in court. This gives you a guarantee that the apartment will be received by the one you choose. On the other hand, the execution of a donation involves a certain risk, since after signing it, you actually lose all rights to property, including the right to use it. That is, having received an apartment, nothing prevents the new owner from "putting you out in the cold." While with a will, the right of ownership is formalized only after the death of the previous owner.

To understand what is optimal - a gift agreement or a traditional will - you need to understand the legal intricacies. Each of them has advantages and disadvantages, which in each case will be of great importance.

Differences between a will and a will

It is difficult to find a person who does not have a house, apartment or other personal property, which after his death can go to relatives or friends. To avoid problems with the transfer, you need to prepare legal documents in advance in the form of a gift agreement or will. With the help of any of them, you can transfer real estate to another individual or legal entity, but there are significant differences between these methods, which you should understand in advance.

If drawn up will, then the heir can enter into the rights not earlier than six months later , after the death of a citizen who transferred his property in this way. Such a period of registration is prescribed in the Legislation of the Russian Federation.

If there is a donation agreement (or deed of gift), then we are talking about a registration period of no more than 3 weeks. For this, the documentation must be prepared in advance and according to the requirements. The package of documents must be accompanied by a receipt for payment of the state duty - 2,000 rubles. for individuals and 22,000 rubles. for organizations.

Depending on the chosen method, a citizen of the Russian Federation may face certain obstacles:

If it's about deed of gift , then this is the most ideal option for the person in whose name it is framed. To challenge it will not only be difficult, but almost impossible. A donation is an irrevocable decision, and this must be remembered. For the donee, this is the most win-win and reliable way to get inheritance rights.
Concerning wills , then in whose favor it may be drawn up, all the same, minor children, the disabled, pensioners have the right to claim part of the property. Moreover, even if there is no "will" of either the heir or the testator. A person who, according to a will, becomes an heir, may have difficulties if there are relatives from the above categories.

The subtleties of each method

Entry into property rights under a donation agreement differs from a similar process under a will. Let's take a closer look at what the difference is:

Entry dates. If a Will is drawn up, then these rights can be entered into only six months after the death of the testator. If we are talking about a donation agreement, then you can enter into the rights immediately, even during the life of the person who issued the donation. To do this, you need to carry out the procedure for registering the relevant documents in the state bodies of the Register of the Russian Federation.
Possibility to cancel the decision. A will can be completely revised and even canceled, as this document is characterized by complete freedom of choice. A donation agreement is a procedure that is either very difficult or impossible to cancel. The only way to cancel the effectiveness of the donation is to prove that the donor was either incompetent at the time the document was drawn up, or the signing of the donation agreement was carried out under duress.
Design features. The deed of gift may not be notarized, since its registration is carried out in state bodies. If the donation agreement is not registered in the State Register, then the document will not be recognized as valid. The will must be certified by a notary.

Issue price

During clearance donation agreements you need to pay the state duty and notary services, if any. When a person donates a house or apartment to his closest relatives, the amount of the state duty will be 0,3% from the estimated value of the property (but not less than 300 rubles).

If the degree of kinship is more distant, or the donee is not a member of the donor's family, then the amount of the state duty increases to 1% of the total appraised value of the apartment or house. If the cost of an apartment or house is more than 1 million rubles, then the penalty is 0.75% + 10,000 rubles.

According to the rules, the gifted person pays the state duty and penalty. But if desired, all payments can be made by the donor or both parties.

Decor wills will cost less. Notary services cost 100-200 rub. The state duty is determined by the degree of kinship between the heir and the testator. The closer the relative, the lower the state duty ( 0,3% from the value of the house or apartment). The services of a lawyer in the preparation of a will will cost within 1 000 rub.

War veterans and heroes of the Russian Federation are exempted from paying the state duty for a will.

These and other differences between these documents are described in detail in the presented video.

The specifics of drawing up a donation

During the preparation of the donation, both parties to the procedure must be present. All documents are made only in writing. The donation agreement must include:

Full name of the gifted;
donor details;
passport details of both parties;
documents for real estate (do not lose sight of information such as the amount of the monthly rent for a house or apartment).

If the donee or the donor cannot be present in state bodies during the registration of the document, then they can “participate” through their representative. To do this, you need to issue a power of attorney and certify it with a notary. Otherwise, the representative will not receive the right to represent the interests of one of the parties, sign papers and submit them for registration.

This power of attorney does not give the right to a third party to take advantage of the situation and dispose of housing. There is no risk for either the donor or the recipient.

When a power of attorney is issued by a notary, its cost will be 300 rubles. If the power of attorney is drawn up at the home of the donor or the donee, then the price of the document will increase to 1,000 rubles.

In the power of attorney, which can be written in free form, however, it is necessary to indicate both the data of both parties and information about the object of donation. If there is no such data in the document, it will be invalidated.

If the property, which is transferred by gift, was acquired by the donor before his marriage, then the permission of the spouse (wife) is not required.

If the apartment or house was bought or built already as common property (married), then you need to get permission from the second half (officially issued).

For the correct registration of a deed of gift, you must present package of documents consisting of:

passports (original or photocopy);
TIN (original or photocopy);
an application for registration of property, written by a person acting as a donor;
application of the person acting as the gifted, on registration of the transfer of ownership;
all documents for the property (cadastral passport, extract from the State Register, etc.);
a certificate signed by a doctor, which confirms the legal capacity of the donor;
a certificate issued by the BTI (regarding the valuation of the property);
an extract from the housing and communal services, which indicates all the persons registered in the apartment or house;
a receipt confirming the fact of payment of the state duty.

After the submission of documents, the process of registering the transfer of ownership of real estate from the donor to the donee begins. It is almost impossible to reverse this decision. Although there are nuances to be aware of.

Can a donation be disputed?

The transfer of an apartment by gift can be challenged in court if:

incorrectly formatted papers;
the process of registration in the registration service of the Russian Federation was not carried out;
there is a death of a person acting as a gift;
the donor was declared incompetent at the time of signing the contract;
there was a forcible signing of the donation agreement, and this was proved;
there is no permission of the spouse (wife) to carry out the donation procedure (provided that the property is positioned as the common property of the spouses).

In all other cases, it will not be possible to challenge or cancel the donation agreement.

When is a will the best solution?

If we talk about a will, then for the heir this is not the most reliable option (unlike a gift), because the owner of the property always has the opportunity to either cancel his decision or revise the conditions. The owner of a house or apartment can always add new heirs to the will, which will make it more difficult for applicants to obtain property rights.

The will must not only be correctly drawn up, but also notarized. The main thing is to indicate the data of the owner of the property, heirs, and the essence of the official paper, to give the most detailed information about the apartment or house.

After the will is drawn up, it must be certified in a notary's office, otherwise the document will not have legal force. Moreover, the heir may not be present at this process, but the testator must not only come, but also bring a witness.

The will is drawn up in 2 copies, one of which remains with the notary, and the other is transferred to the testator. After the document is executed, it is transferred to the state archive for storage.

How to make an inheritance right?

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

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

A will is cheaper, but less reliable for the heir. A donation is an almost 100% guarantee that the recipient will receive all rights to real estate. It is necessary to draw up a donation agreement only if the donor trusts the donee. As soon as the deed of gift is signed, the rights to the real estate automatically pass to the donee.

The main difference between these legislative transactions is the time when the heir enters the inheritance:

with the formalized donation procedure, the recipient immediately becomes the owner of the property and can dispose of it in full;
if valid, heirs can claim to receive it only after the death of the originator of the document.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

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The legal framework of the donation agreement can be found in Articles 572 - 580 of the Civil Code of the Russian Federation, and the specifics of obtaining property by will are prescribed in Chapter 62 of the Civil Code of Russia.

How to make an inheritance?

The transaction can be changed an unlimited number of times at the will of the testator, and the compiler of the inheritance may not indicate the grounds for changing the conditions, appointing new candidates for inheritance or withdrawing previously appointed candidates.

Also, in the inheritance by will or by law, some relatives must certainly be taken into account in accordance with.

Comparison

However, the recipient of the inheritance for the legislative entry into the inheritance will need to spend about a thousand rubles, as well as pay the established state fee, which reaches about a thousand rubles.

Also, close relatives must pay 0.3% of the inheritance received, while the amount should not exceed a total of one hundred thousand rubles. And other categories must pay 0.6% of the inheritance, while the total amount should not exceed one million rubles.

The question of how best to formalize the inheritance: by making a will or by leaving valuable property to the heirs through a donation, is not at all idle. The testators are concerned about how reliable this or that method of transferring ownership is, whether it is possible to challenge both documents, how the registration process takes place, how much one and the other document will cost the testator, and also how much the heirs will have to pay when taking ownership. Let's consider each aspect separately.

A deed of gift, or donation agreement, has several very serious advantages over a will. It is extremely difficult even in court to challenge a properly executed deed of gift, except if forgery, fraud, or incapacity of the donor is established. While a will can be challenged in court for a number of circumstances that do not depend on the will and desire of the testator.

If the owner is determined to transfer his valuable property to the gifted person, then it is best to draw up a deed of gift. If, due to some circumstances, the right of ownership needs to be transferred not right now, but after some time, but during the life of the donor, then you can draw up the so-called deferred deed of gift, which comes into force after the period specified in it after signing. From the moment the document comes into force, the obligation to maintain valuable property is completely transferred to the gifted person.

To whom to transfer his property, the donor decides for himself, without looking back at the requirements and norms of the law. At the same time, nothing prevents at any time to issue a deed of gift and immediately transfer the property to the gifted. In the case of a will, the heirs will necessarily have to wait six months after the death of the testator in order to formalize the transfer of ownership, on the basis of a certificate of inheritance issued by a notary. At the same time, it may well happen that the heir indicated in the will does not receive anything from it in the end, since the rest of the heirs will challenge the document in court.

For valuable property received as a gift, the gifted person is obliged to pay a tax - 13% of its value. Only close relatives are exempted from paying the tax: children and parents. If the property passes by will, then the heirs will need to pay 0.3-0.6% of the value of the inheritance as a state duty to the notary, but when inheriting real estate, they will have to pay the same tax (13%) for it, if the testator does not have to close relative.

How is a donation issued?

A gift agreement is drawn up on behalf of the donor in favor of the person or several persons being gifted. At the same time, you can donate your property not only to individuals, but also to the state, a legal entity, a charitable non-profit organization, etc.

The two most important conditions for a properly drawn up donation are:

An accurate description of the property being donated. No double interpretations, inaccuracies or incomplete descriptions are allowed. If we are talking about real estate, then its address, characteristics, area, floor, number of premises, extract data from the USRR are indicated.
It is not allowed to specify any conditions and restrictions. It is impossible to draw up a donation on the condition, say, that the donee will receive property after the marriage is registered.

The law does not require notarization of the donation, so the parties can certify the document with their signatures (seals, when it comes to legal entities). However, notarization is recommended, as it will serve as proof of the donor's legal capacity at the time of the transaction, as well as the absence of coercion.

If the deed of gift is not notarized, then it will cost nothing to the donor. Only gifted persons are required to pay the due tax upon taking ownership. If it is decided to notarize the document, then the donor pays the due fee to the notary, the amount of which depends on which office the donor applied to, as well as on what kind of property is indicated in the donation.

How is a will made?

The basic principles for making a will are as follows:

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).
You can bequeath only what belongs to the right of ownership and is confirmed by the appropriate document.
It is possible to bequeath property in favor of any person (Article 1119 of the Civil Code of the Russian Federation).
A will can be changed at any time.
Half of the property acquired in marriage belongs to the spouse, and cannot be torn away by will.

A will can only be made in writing. The oral form of the will is not provided. The document acquires legal force after its certification. The notary and a number of other authorized persons have the right to certify. Additional certification may be the signatures of witnesses in whose presence the document was drawn up and certified. In special cases, the will may not be notarized, but only by the signatures of authorized persons and witnesses:

An employee of the same bank has the right to certify a will for a bank deposit.
In a 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.
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.
Captains of long-distance ships, heads of expeditions and bases outside the Russian Federation also have the right to certify a will.
At the place of deployment of the military unit, its commander has the right to certify the will of his subordinate.
In a correctional institution, the wills of prisoners have the right to certify their head.

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

The text of the will can be open, the notary himself and the witnesses get acquainted with it, or closed, when interested persons can get acquainted with the content only after the opening of the inheritance case. The text must include the following information:

Passport data of all citizens mentioned in the document.
An exact description of all the property that will pass after the death of the testator to the heirs, or the wording “all owned property” is indicated when its composition is not known at the time the document was drawn up.
Document date and place.
Passport data of witnesses.
Notary certificate details.

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

What is important to consider when preparing a donation?

Before making a decision to donate property, it is important to fully understand the legal implications of such a transaction. The donor should be aware that:

From the moment that the signatures of the parties are affixed to the document, it comes into force. This means that from that moment on, the right of ownership passes to the donee and the former owner no longer has any rights to the property transferred under the document.
The law does not provide for the annulment of a donation. The document can only be declared invalid in court due to the fact that it is drawn up on the basis of forged documents, is fraudulent and transfers to the donee the rights to property that does not belong to the donor.
The recipient himself has the right to do with the received property as he wants. The donor has no right to direct his actions.

It is these nuances that are often overlooked by the owners. For example, when it comes to real estate. The new owner has the right to sell the donated apartment, even if other persons are registered in it (except for minors, whom the law obliges to write out only for another living space). Before signing a donation, you should think carefully, since this document has no retroactive effect.

What is important to consider when drafting a will?

A will is not a document binding the testator to anything. At any time he has the right to cancel the old will and make a new one. In this case, the composition of the heirs can also be chosen at your discretion.

Compared to a deed of gift, a will is often challenged in court. The basis for filing claims may be the rights to the mandatory share of those persons whom the testator did not mention in the document, as well as doubts that the will was drawn up by a capable person, without extraneous pressure.

The practice of litigation shows that in most cases, when a will is contested, the case is decided in favor of the plaintiff. Therefore, in order to avoid such a risk, the testator is advised to consult with an experienced lawyer in order to draw up a document without gross errors and in compliance with the law. It will be extremely difficult to challenge such a will.

Which is better: a will or a gift? This question can be answered by taking into account many nuances. Unfortunately, a citizen who does not know the intricacies of legislation often confuses these close concepts. So that no one else has incidents, we decided to consider these two terms.

last will

It should be noted that the law allows property to be bequeathed to any person, be it a relative, acquaintance or neighbor. A will is an order of a citizen in which he determines the fate of his property in the event of death. At the same time, real estate or other things that a person plans to inherit, of course, must belong to him by right of ownership.

The last will of the testator must be notarized. There can be only one exception to this rule - if the testator is in a situation that threatens his life, and due to such a situation, he is unable to certify his order. In this case, your last will can be drawn up in a simple written form.

To understand which is better, a will or a gift, you need to understand the powers of the citizen who is going to draw up this document. As you know, the owner of property has the right to determine the shares of successors, as well as to deprive him of an inheritance without giving reasons. It is worth noting that the testator can exercise the right of the so-called "testamentary refusal". That is, he has the ability to oblige specific persons to perform some actions. For example, the testator wants to transfer the house to Ivanov's heir, but on the condition that he grants Sidorov the right to live in this dwelling for life.

In addition, a will is a document that cannot be canceled. The testator himself can stop its action by writing a new order with a different content. Or he may completely terminate the validity of such a document. Therefore, you can cancel or change the order on the transfer of property as much as you like, but only at the request of the testator himself.

Benefits of a Will

If we talk about which is better, a will or a gift, then it is worth noting that the first option has undeniable advantages for the owner of the property. The most important of them is that after making a will, a person does not cease to be the legal owner of his apartment, house, etc. The heirs will be able to re-register the ownership right only after his death.

In addition, the freedom of will can be limited by certain provisions of the law. So, if the testator has disabled or underage children, dependents or non-working parents, spouse, then such persons (regardless of the content of the will) will receive a mandatory share of the property of the deceased, which would be due to them by law.

You also need to remember - if at the time of drawing up the order this person was registered in a narcotic or neuropsychiatric dispensary, then such an expression of will can later be challenged in court by his relatives. If the court then its provisions, of course, will not apply. In this case, the property will be divided exclusively between the legal heirs.

What is a donation?

What is the difference between a deed of gift and a will? To understand their differences, you first need to find out what a donation agreement is. Such a transaction assumes that the owner of something transfers his property free of charge to another person (the donee). To certify such a transfer, a donation agreement is drawn up in a simple written form. After that, the transfer of ownership is registered in Rosreestr.

The essential difference between a will and a deed of gift is that in the case of drawing up a second document, a person becomes the full owner of the car, cottage, house, etc. immediately after the execution of the contract. The donor, accordingly, ceases to be the owner of his property.

There are no restrictions on the choice of the donee. You can donate housing, business or transport to anyone - your wife, nephews, children, or even a complete stranger. It can be either a resident of Russia or a stateless person or a foreigner.

Who benefits from a gift agreement?

Like it or not, but for the owner of the property, a deed of gift is less preferable. It is not uncommon for receivers, having received real estate as a gift, simply drive the former owners out onto the street.

The difference between a donation and a will is that the latter is always easy to cancel, but the first contract can only be broken in court. The donation also has other limitations. For example, if we are talking about property acquired during marriage, then in any case it is considered the common property of the spouses, and it can be transferred only with the consent of the wife or husband.

Important aspect

It is worth considering that if there is no will, then all the acquired wealth of the deceased will pass to the heirs according to the law. The first category of successors includes spouses, children and parents. In total there are as many as eight steps of heirs. If there are no relatives of the first stage, then the successors of the second will receive the property, if not such it turns out - the third, etc. Situations may also arise when relatives, whom the deceased did not even suspect, claim their rights to property.

To enter into an inheritance, you need to go through several mandatory steps - this is another difference between a deed of gift and a will. The property is accepted six months after the death of the testator. After that, it is necessary to collect an impressive package of documents: certificates from the BTI, Rosreestr, tax and other papers. And only after receiving a certificate of ownership of the objects that the deceased bequeathed, registration begins for the new owner.

Financial side

You can not write off the financial costs. Let's find out: a will or a deed of gift - which is cheaper?

If a donation agreement is drawn up with the help of lawyers, then it will cost from 2 to 5 thousand rubles. If you wish to notarize the transaction, get ready to pay 0.5-1% of the property value for BTI assessments. The transfer of the right to real estate in Rosreestr can be assured both independently and through a realtor who will have to pay about 5 thousand rubles. A state duty in the amount of 1000 rubles is also paid and the same amount for registration of the right of ownership.

Moreover, the donee will be required to pay personal income tax in the amount of 13% of the BTI assessment. However, donors are exempt from such tax.

Probate expenses

To decide which is better, a will or a deed of gift, we will now analyze the costs of the first document. The successor will need to spend approximately 1,000 rubles and the same amount of state duty for making a will. As well as:

0.3% of the property received, but not more than 100 thousand rubles for children, spouses, parents, sisters and brothers;
0.6% of the inherited "good", but not more than 1 million rubles for other categories of heirs.

If you wish to carry out this procedure with the help of realtors, you will have to spend at least 5 thousand rubles.

Results. What is more profitable: a will or a deed of gift?

It turns out that for close relatives, a donation will be cheaper. If we talk about other persons (distant relatives or friends), then it is still better to draw up a will.