Definitions of deed of gift and will
A deed of gift is a gift agreement in which there are necessarily two parties - the donee and the donor.
As a result of concluding a gift agreement, the donor transfers the property free of charge to the recipient, regardless of whether he is a relative or not. A will is a unilateral agreement or expression of the will of a citizen (testator), which decides how and by whom his property will be used in the event of death. In this case, heirs are indicated, including those without family ties.
Differences between deed of gift and will
Let's compare the documents on a number of provisions.
1) Duration of registration:
Deed of gift. Time to draw up a contract. Notarization is not required. The agreement is signed by the parties, and the state fee is paid. Prepared documents are submitted for registration. According to the law of the Russian Federation, the procedure for registering a deed of gift should last no more than two and a half weeks.
Will. The procedure for registering an inheritance begins only after the death of the testator. A certificate of inheritance can be obtained from a notary after six months. It is necessary to register ownership with the relevant government agencies.
2) The moment of receiving the property into ownership:
Deed of gift. The donee receives such a right immediately after registration of the right. That is, it begins to fully own the property during the life of the donor.
Will. The heir under the will becomes the owner of the property no less than six months after the death of the owner.
3) Possibility to change or cancel the contract:
Deed of gift. A gift agreement implies a transaction that is very difficult to cancel. You can challenge a deed of gift in court by proving the donor’s incapacity or signing the agreement under pressure and force.
Also, the gift agreement can be canceled if the donee:
- made an attempt on the life of the donor, the life of one of his family members or close relatives, or intentionally caused bodily harm to the donor;
- treats a gift that is of great non-property value to the donor in such a way that creates the threat of its irretrievable loss.
Will . The will can be canceled (changed) at any time or another will can be added to clarify the details: the inheritance can be redistributed among other heirs.
4) What do we pay for when registering:
Deed of gift . We pay the state fee. We pay for drawing up the contract. If we certify it with a notary, then - for certification. Will. Notarization fee is required. An interest rate is paid for issuing an inheritance document (from 0.3 to 0.6%).
5) Payment of taxes:
Deed of gift . The gift tax is 13% personal income tax on the value of the inheritance. It is paid by the donee if he is not a close relative of the donor.
Will. Not paid.
6) Possible problems:
Deed of gift. The donor has virtually no leverage over the donated property. For the donee, this is a definite plus, since he becomes the owner of the property immediately after registration.
Will . Regardless of the will of the testator, part of his property may pass to relatives who, by law, have the right to inherit. These are elderly parents, disabled people and minor children.
The difference between a gift agreement and a will
Each case has its own nuances, which you need to know about. If a person has made a will, he can rewrite it at any time. If you donate, there is no turning back; challenging a gift agreement after the death of the donor or during his lifetime does not always lead to a positive result in returning the parties to their original position. Inheritance rights come into effect only after six months from the date of death of the testator; in the case of a gift, ownership is transferred immediately after the transaction. An inheritance entails payment for notary services before the will comes into force and after, and payment for the services of an appraiser.
When donating, you only need to pay a state fee of 1000 rubles. From all this it follows that giving is better than bequeathing if you are confident in your heir and are ready to give him the rights right now. If there is no such confidence, then it is better to write a will; after reading our material, the practice of challenging a will by reference.
Registration costs in numbers
Donation:
- state duty - 2000 rubles;
- The gift tax is 13% personal income tax on the value of the inheritance. Close relatives are exempt from paying tax.
If the deed of gift is issued through a notary, then the following are additionally paid:
- drawing up a contract - from 2000 rubles;
- state duty for notary services - in accordance with Art. 22.1 “Fundamentals of the legislation of the Russian Federation on notaries” (approved by the Supreme Court of the Russian Federation on February 11, 1993 No. 4462-1).
Will:
- certificate of will - 100 rubles;
- opening an envelope and reading a closed will - 300 rubles;
- conducting an inventory of inherited property (for taking measures to protect the inheritance) - 600 rubles.
For issuing a certificate of inheritance:
- children, including adopted children, spouse, parents, full brothers and sisters of the testator - 0.3% of the value of the inherited property, but not more than 100,000 rubles;
- other heirs - 0.6% of the value of the inherited property, but not more than 1,000,000 rubles.
Deed of gift or purchase and sale agreement
If you decide to give the right to inheritance during your lifetime, another question logically arises - which is better: a deed of gift or a sales contract?
When an apartment is given as a gift, it is properly registered in the name of only one person, directly the one who accepts the gift. This means that if he is married, then this type of property will not be divided during a divorce. Also, when completing a purchase and sale, you will incur large expenses, since the property will be subject to taxation. For each case, there are a lot of nuances, so in order to make a decision, it would be a good idea to seek advice from a specialist who will take into account all the intricacies of your case. Although we can say unequivocally that if the question arises about what is better - a donation or purchase and sale of an apartment at the moment when the property is registered in the name of a stranger, then the decision should be made in favor of the second option.
Which is better: a will or a deed of gift?
A will is safe for the testator, since he can change or supplement the document at any time. A deed of gift is the most profitable transaction for the donee, since it is very difficult to challenge a deed of gift. In the case of a will, the property belongs to the testator until death, and the heirs are one way or another forced to maintain relations with the testator. When preparing a deed of gift for the donor, there is a risk that the new owners of the property may “forget” about it immediately after signing the gift agreement.
It is important not to forget that when making a will, the heirs will have to share the property if the testator has children under 18 years of age, disabled people, dependents, or retired parents who also have the right to a share in the inheritance.
What is cheaper: drawing up a deed of gift or a will?
The following nuances must be taken into account: when registering a gift of property to a person who is not a relative of the donor, according to the law, a tax must be paid;
According to the will, such tax is not paid. Therefore, for the heirs of the first and second order, the question of which is cheaper does not matter. The first and second stages of heirs include:
- husband or wife;
- parents;
- children;
- parents who adopted children;
- children who are adopted;
- grandparents;
- grandchildren; siblings, children who have the same father or mother.
For the remaining heirs, it will be more profitable to draw up a will.
In fact, what is better and cheaper depends on the specific situation of the availability of property and its value. There is no clear formula for answering this question.
In my opinion, it is more profitable for the testator to draw up a will.
A will can be revoked or radically changed. From a legal point of view, only the last expression of a person’s will comes into effect. Also, the property remains at the complete disposal of the testator until the end of his life. The heir will receive ownership of the property only after the death of the testator. It is better for the heir to draw up a deed of gift. It is almost impossible to challenge a gift agreement and the property automatically passes into the possession of the recipient. He has the right to dispose of the property immediately after registration of the agreement.
Important! Challenging both a will and a deed of gift in court is equally difficult. To do this, you will need to prove the legitimacy of the facts cited in the claim. It will be necessary to undergo a medical examination, collect testimony from witnesses, and evidence in the case. And it is advisable to hire a lawyer.
In this article, I discussed the main differences between a deed of gift and a will, the pros and cons of each document.
I hope the information provided will be useful and will allow you to make the right decision about what is better in your situation: a will or a deed of gift.
What can’t be challenged about a will or deed of gift?
Traditionally, great difficulties are caused by the choice between the two most common methods of transferring property - donation and will. And perhaps the most difficult part of making a decision is considering their safety. Security is often understood as the irrevocability of a decision, the impossibility of claims on property by unwanted persons and the impossibility of canceling the results of a donation or will by a court decision.
First of all, and the legal portal bukva-zakona.com draws your attention to this, you can try to challenge both a donation and a will. Of course, a positive outcome if the gift is contested is less likely. This is especially true in cases where the transfer of property was carried out between close relatives. But, if it can be proven that when drawing up the deed of gift, the requirements of the law were significantly violated, then the court may well cancel its results.
When can you challenge a donation?
It should be noted that the donor himself or his relatives (after the death of the donor) have the right to file an application to cancel the results of the donation. The person who made the gift may challenge the results of the transaction if:
- a person who received property as a gift carries out actions that pose a danger to the life or health of the person who transferred this property; such actions can be considered not only obvious methods of physical influence, but also verbal threats;
- the person who received the property as a gift is unable or unwilling to maintain it in proper condition; for example, in the donated apartment, the necessary repairs are not carried out and measures are not taken to maintain engineering communications in good working order, as a result of which the property has fallen into disrepair, posing a threat to others.
The donor's chances of a positive court decision are higher, the more evidence he provides of the recipient's illegal actions. The motivation of the person making the gift, “I changed my mind,” will not be a convincing argument for the court.
Relatives of the donor can also try to review the results of the donation, but this will be possible only after his death. The following reasons may be the basis for such action:
- the object of the gift was property that did not belong to the donor, and accordingly there was no legal right to dispose of it;
- the property donation transaction was accompanied by fraudulent actions by the recipient of the gift, including direct deception, misleading him, providing false information, and so on;
- lack of spouse's approval of the gift if the property is joint;
- insanity or incapacity of the person making the gift.
Errors in the execution of the document itself may also be considered grounds for canceling a deed of gift:
- indication of false information about the participants in the transaction or the object of the gift;
- circumstances allowing the donation to be recognized as a void transaction, for example, the presence of any conditions for the donation;
- the recipient of the gift belongs to the category of persons who are legally prohibited from participating in such transactions, for example, social workers;
- the donor has not reached the age of majority at the time of signing the deed of gift.
The period when you can submit an application and ask for the cancellation of the deed of gift is 5 years for the person donating the property and 3 years for other interested parties.
When can a will be revoked?
Naturally, a person who bequeaths his property does not need to challenge this - it is enough to simply revoke the order or issue a new one. To do this, you do not even need to indicate the reasons for such a decision.
Only those persons who have a legal right to this property can challenge a will, and this should be done only in order of priority. In addition, there is a category of persons who are necessarily allocated a share in the inherited property and they can also challenge the testamentary disposition (for example, minor children and others).
Since the will comes into force only after the death of the holder of the estate, the cancellation of its order is allowed only after death. The grounds on which you can try to revoke a will may be:
- insanity or incapacity of the testator; for example, you can try to prove facts of alcohol abuse, taking drugs or other substances that alter the psyche;
- violations of the rights of legal heirs; if property is bequeathed to a stranger, but the next of kin are not indicated in it, then you can try to cancel such a disposition;
- violations in the preparation and execution of a testamentary disposition;
- execution of a testamentary disposition under the influence of threats.
What is more difficult to challenge - a will or a gift?
As practice shows, it is much more difficult to cancel a deed of gift. If the agreement is drawn up in full compliance with the requirements of the law, and the donor himself is an adequate and capable person, then it is almost impossible to annul his will in relation to his property.
The donor is not obliged to take anything into account when transferring property - he can give it to any people, even complete strangers. When making a will, you should always take into account that the legal heirs should receive their share.
Thus, although the revocation of a will is a rather complex procedure, the revocation of a gift is even more problematic.
( 1 votes, average: 5.00 out of 5)
