Sooner or later, each person begins to think about how to dispose of their own property in the future. After all, for sure he has a child who is not provided with housing. What to do if there are several children? How to divide property and reduce the cost of its re-registration? What is the difference between a will and a deed of giving an apartment? What is the best option for re-registering property? The answers to these questions are offered by our article.
Inheritance
The first thing that comes to mind is a will. This document is the will of the owner of the property on its further fate.
The will has a number of features:
- Mandatory clearance by a notary.
- The ability to change your mind at any time.
- The heir has the right to refuse to receive the mass due to him.
Most importantly: the testator does not lose property rights until the moment of death, and the recipient, by testament, has no right to perform any significant legal actions with real estate until he enters into inheritance rights.
Gift
Donation is a transaction in which one party transfers property on a gratuitous basis, and the endowed takes it into ownership.
If we are talking about a real estate object, then the rights of the person being gifted are subject to registration with the Rosreestr. After the commission of this act, the donor loses his rights to the property. Cancellation of the contract is also subject to state registration and can only be done in cases expressly stipulated in the legislation or the agreement itself.
You do not need to pay personal income tax if the transaction is made between close relatives. In other cases, the contract is taxable.
The endowed person has the right to refuse the property transferred to him, but until the registration of his rights to it.
What is the difference between a will and a deed of giving an apartment? As can be seen from the above explanations, these legal relations are fundamentally different from each other. Donation involves the transfer of property at no cost during the life of the donor. The heir can receive a will only after the death of the testator. That is, both types of documents are prepared for different purposes.
Comparative characteristics of legal consequences
The difference between the donation and testament to the apartment is quite large. To determine what is more profitable to issue, you should understand some of the nuances that we have put out in the table.
Grounds | Will | Gift |
Right transition moment | Only after the death of the property owner and registration of the right by the heir | At the time of registration of the right to real estate or the entry into force of the contract, if it is a vehicle |
Debentures | The heir, together with the property, receives the debts of the testator | The gifted is not liable for the debt obligations of the donor |
Who has the right to appeal in court | Legal heirs, if they have lost property or their part has substantially decreased | Parties to the contract and third parties whose rights have been violated as a result of a transaction |
When can I go to court? | Only after the death of the owner and for 3 years | After registering the right to property in Rosreestr for 3 years |
Spouses and their rights | Donated property is not joint property | Items and real estate received under a will are also not joint property |
In addition, there are other differences between the two legal relations.
Content, form
What is the difference between a will and a deed of giving an apartment? First of all, the will is the last will of the owner and can be revoked at any time. The gift transaction after its completion is irreversible. It cannot be undone if the donor changes his mind.
This document is not subject to mandatory notary certification. The will needs to be registered. Therefore, the package of documents for registration of the indicated legal relations is different.
Benefits of Donation
Which is better, a testament or a deed of gift for an apartment? In fact, this question is quite difficult to answer, since the two actions have completely different goals for disposing of property.
Among the positive aspects of donation are the following:
- Lack of obligation to pay personal income tax if the right to property passes to a close relative. These are children, sisters, brothers, parents, grandparents (Article 217 of the Tax Code).
- Is it possible to sell an apartment after a donation? Yes, at any time. You can sell the property received as a gift without paying personal income tax after 3 years. For example, if a purchase and sale transaction was formalized, then you can’t pay tax only after 5 years.
- If a share in real estate is donated, then the preemptive right to purchase is not required.
- The donor retains the right to terminate the transaction if the donor committed an attempt on him or loved ones, caused bodily harm (Article 578 of the Civil Code).
Another important point: the regime of common joint property of spouses does not apply to the gift agreement (Article 36 of the UK).
Disadvantages of Giving
Which is better, a testament or a deed of gift for an apartment? To answer this question, one should know the provisions of Article 575 of the Civil Code, according to which it is impossible to complete a gift transaction between legal entities. In addition, if such an action is not carried out between close relatives, you will have to pay 13% of personal income tax. If only a share of the common joint property is transferred to the gift, then all other owners will have to obtain consent for such a transaction.
If you compare the will and the deed of gift, then the last document is much easier to challenge in court. Another disadvantage for the donor is that the donor can cancel the transaction before registering the transfer of ownership of the property.
Benefits of the will
The advantages of the design of this document include:
- The owner of the property has the right at any moment of his life to change his mind and rewrite the inheritance document.
- The compiler of the will remains until the last moment of his life the owner of the hereditary mass, he can freely dispose of and use it.
- The heir does not know in advance what the will bequeaths, under what conditions the property can be obtained.
If the heir leaves the life earlier than the owner, the latter has the right to change the recipient of the property.
Cons inheritance document
What is the difference between a will and a deed of giving an apartment? To answer this question, you need to understand how probate can be inconvenient for both parties.
Do not forget that disabled family members are legally entitled to a part in the estate, regardless of what the owner of the property wished.
Until the owner of the apartment leaves this world, he must bear all the costs of its maintenance. There is a risk that the owner of the property will make a will under pressure or at this point will not be able to realize his actions.
If the heir at the time of death of a person leaving him his property was under 18 years old, then the process of execution of all necessary documents should be undertaken by his legal representative. If this is not done, then the minor may be left without property.
Taxation and transaction price
How much does a gift certificate for an apartment cost? The state duty for registration of transfer of law is 2 thousand rubles. If the gifted person is not a close relative, you will have to pay 13% of personal income tax within 3 months from the date of the transaction. In cases where there are several who are gifted, each of them will have to pay a tax. Its amount is calculated from the estimated value of the property.
How much does a gift certificate for an apartment cost if the donor is not a resident of the Russian Federation? In this case, the tax increases to 30%. If movable things, such as household appliances, furniture, are donated, then there will be no costs at all. Of course, if the donor wishes to consolidate his will with the notary, you will have to pay for it.
Taxation and inheritance costs
Which is cheaper, a deed of will or testament to an apartment? For the owner of the property, the execution of a will will cost no more than 1 thousand rubles. Other expenses are not provided. However, the process of registration will be expensive for recipients of the inheritance.
If the heirs of the first stage are present in the will, then they will have to pay 0.3% of the appraised value of the apartment. If the recipients are the heirs of the second stage, then 0.6% is paid. In the process of registering rights to real estate, you will also have to pay 2 thousand rubles.
Answering the question of what is more profitable, a testament or a deed of gift for an apartment, one can say unequivocally that a deed of will cost less.
Is it possible to protest the testator’s last will
Since the owner of the property makes a will of his own free will, he has the right to cancel it or change the recipients, as well as the agreed conditions. Can a testament to an apartment be annulled by the dissatisfied heirs themselves or by third parties? In fact, both those and others have a right to this.
Heirs may demand cancellation in court if their rights are infringed. Third parties are also entitled to go to court. Most often, in the statement of claim, the plaintiff tries to prove that at the time of drawing up the document, the owner of the property was incapable or made a will under pressure, was mistaken. The courts also have claims in which the interested party is trying to prove that the will is in improper form.
Many practicing lawyers recommend obtaining a certificate of legal capacity at the time of writing, to prevent possible disputes between the heirs after the death of the owner. This is especially recommended if the document is an elderly person. An examination to establish the legal capacity of a deceased person may also be carried out. In this case, all medical certificates, medical history and other documents characterizing the health status of the testator are examined.
Is it possible to refute a testament to an apartment? In fact, any testament can be appealed. The main thing is that for this there are irrefutable facts that the owner drew up the document under pressure or in other unforeseen circumstances. It can be a threat or a delusion. For example, the heir simply deceived the owner. But all these allegations in the lawsuit will have to be confirmed.
Appeal to the court with a deed of gift
Is it possible to protest a donation to an apartment? This is another issue that worries homeowners. Making such an agreement, it should be understood that after registration of the rights for the new owner, if he so desires, he will have to leave the house, because the donor will no longer have any rights.
The Civil Code provides for several cases to challenge a transaction. If the donor can prove that his health has been harmed. To appeal to the court, even the fact of an attempt to such actions is enough. In evidence can serve as certificates from the police, medical institutions.
Negligent treatment is another reason to challenge the transaction. For example, in a lawsuit, the former owner may put forward a demand for the release of housing by the donated, if the latter treats him carelessly, which led to his condition deteriorating greatly, there is a threat to other residents. A confirmation of this can be certificates from the management company, an expert opinion or testimony of witnesses. The donor may demand the return of the property if he has material problems.
What is disputed, a testament or a deed of gift for an apartment? Both that, and another can be challenged in court. The common grounds for both cases are the proof of the fact that the legally significant act was committed under pressure, the person was mistaken at that moment, he was threatened, he was in an insane state.
Even custody authorities can dispute a transaction if it is a minor. But only the court can cancel the transaction.
Possible alternative
What is more reliable, a testament or a deed of gift for an apartment? Are there any alternative solutions for transferring property? It is more reliable for the owner to make a will, because at any time it can be canceled or changed. Donation involves the transfer of the right to property during the life of the owner and has more risks. For older people who want to be looked after before death, there is another option - the execution of a life-long maintenance contract.
Features of this type of transaction is that the owner transfers his property rights in exchange for periodic payments. The most important thing is that the recipient of the annuity can at any time terminate the agreement if the payer violates the agreements reached. If the property is destroyed due to force majeure, it does not exempt the payer of rent from paying payments.
To summarize
A will shall enter into force only after the death of the owner of the property. The transfer of rights under a gift agreement occurs at the time of registration of rights to an apartment in Rosreestr. How much does a gift certificate for an apartment cost? In general, you will have to spend only for registering the transfer of rights. This is about 2 thousand rubles. If the parties to the donation agreement are not close relatives, then you still have to pay 13% of personal income tax.
The whole procedure for drawing up a will will cost about 1 thousand rubles. However, the heirs will have to pay tax for the registration of their right to property.
You can appeal both a testament and a deed of gift. However, compelling evidence will have to be gathered. The right to appeal in court is with the heirs, guardians. If it is a will, then the owner of the property throughout his life can change it. The gift can be appealed exclusively in court.
Only the owner of the property can choose which type of transfer of property is best. His decision, as a rule, is based on a life situation. Alternatively, consider entering into a life annuity.