Getting property by inheritance is always stress associated not only with the loss of a loved one, but also with the need to solve complex legal issues. Many heirs, barely having received a certificate of inheritance, think about the future fate of the property. Often, you may want to give an apartment, house or car to a relative or third party to simplify future procedures or distribute assets.
Legal opportunity to make gift-giving The new owner only has the right to register in the state registers. Before receiving an extract from the USRN or a certificate of registration of a vehicle, the law does not allow the object to be disposed of. It is important to understand that the moment of opening the inheritance and the moment of actual ownership of rights are different time periods, and you should not rush to prepare documents.
In this article, we will discuss in detail how to properly issue a gift after the entry into the inheritance, what tax consequences await the bequeathed and what risks exist when making such transactions in the short term after receiving the property. You will learn about the nuances of taxation, which often come as a nasty surprise to gift recipients, and how to minimize bureaucratic delays.
Right to dispose of inherited property
According to the civil legislation, the right of ownership of the inherited property arises from the heir from the date of opening the inheritance, that is, from the date of death of the testator. However, this theoretical point does not give the right to immediately sell, give or change the object. In order for the gift transaction to be legitimate, it is necessary to go through the full procedure of entering into the rights, which is supervised by a notary.
Only after receiving the hand inheritance and registration of the transfer of ownership in Rosreestr (for real estate) or traffic police (for transport), the new owner receives full legal status of the owner. It is from the date of registration of the right in the USRN or making an entry in the PTS that the opportunity to freely dispose of the asset begins, including its gratuitous transfer to another person.
⚠️ Attention: Attempt to issue a gift before the state registration of the ownership right will lead to a refusal to register the transfer of the right to the gifted. Registrars require that the donor be listed as the current owner in the database.
The transition process takes time, and during this period any attempts at prior disposition of property are not legally valid. Even if all heirs agree to the distribution of shares, the formal side of the matter must be respected impeccably. Ignoring this rule may result in the transaction being void in the future.
It is important to note that if there are several heirs and the property is in the shareholdingYou can give your share without the consent of other owners. However, when donating an entire object in common equity ownership, the consent of all owners or allocation of a share in kind will be required, which is often difficult.
Tax consequences for the person given
One of the most critical moments in the gift of inherited property is the issue of taxation. According to the Tax Code of the Russian Federation, the receipt of property as a gift is considered as income from which it is necessary to pay personal income tax (NDFL). The tax rate is 13% of the cadastral value of the object for residents.
There is an important exception: tax is not paid if the donor and the benefactor are the close-relative. This category includes spouses, parents, children, adoptive parents and adopted children, grandparents, grandchildren, full and incomplete brothers and sisters. In this case, the transaction is completely exempt from the tax burden, regardless of the value of the gift.
If the gift is between distant relatives or strangers, the tax will have to be paid. The basis for the calculation is taken from the cadastral value at the time of the transaction. If the cadastral value is not determined, the market valuation specified in the contract is used, but it cannot be lower than 70% of the cadastral value.
⚠️ Note: If the recipient is not a close relative, he must submit a 3-NDFL declaration on his own in the year following the donation. Tax evasion threatens the accrual of penalties and penalties from the FTS.
In the case when the property was inherited less than three years ago (and earlier than five), and the heir decides to give it, the heir-giver does not have obligations to pay sales tax, since the gift is not a sale. However, it is important for the recipient to remember his obligations to the state.
Specificity of donation of real estate (apartments, houses)
Gifting of immovable property received by inheritance requires a mandatory written form of the contract. Verbal agreement in the case of apartments and houses has no legal force. The gift contract is subject to state registration in Rosreestr, and only after making an entry in the USRN, the gifted person becomes the full owner.
When drawing up the contract, it is necessary to specify the exact characteristics of the object: cadastral number, area, address, floor. If other people live in the apartment, this does not prevent the gift, but the recipient should be warned about the existing ones. enjoyment. However, a gift with the condition of residence of the donor or third parties after the death of the donor (in this case, after the entry into the rights of the heir) can be recognized as an enslaving transaction or will disguised as a gift.
Can I give an apartment with debts for housing?
Yes, you can. Debts on utilities are tied to the personal account and specific people, but when changing the owner, disputes often arise. Management companies may require payment of debts from the new owner, although legally he is not responsible for them if they are accrued before the time of his ownership. In practice, however, conflict is inevitable.
Particular attention should be paid to the situation when the heir is married. If the property is inherited, it is considered the personal property of the heir and is not subject to division in case of divorce. Accordingly, for the donation of such real estate consent It is not required to simplify the procedure.
To register the transfer of rights, it is necessary to pay a state fee. Its size is fixed and does not depend on the cost of the object. Usually the fee is paid by the person to whom the payment is made, but the parties may agree on a different distribution of costs. Without a receipt for payment of the state duty, the registrar will not accept the documents.
Donation of a car after inheritance
The procedure of donating a vehicle has its own differences from real estate. After entering into the inheritance and obtaining a certificate from a notary, the new owner must first register the car with the traffic police for himself. Only then can a gift agreement be issued to a third party.
There is an opportunity to pass the registration stage for yourself, if all the heirs agree, but in practice, the traffic police requires first to issue a car for the heir. The contract of donation of the car is in simple written form, notarization is not required if the car is given in its entirety, and not a share in the ownership of it.
☑️ Documents for donating a car
An important aspect is the preservation of license plates. The gifted can leave the old numbers, if they correspond to the GOST, or get new ones. The policy must also be updated. OSAGOThe old insurance contract is terminated at the time of transfer of ownership.
If the car was pledged to the bank (for example, was bought on credit by the testator), then the change of owner requires the consent of the mortgagee bank. Otherwise, the transaction can be challenged, and the car – seized to pay off the debts of the testator.
Comparison of gift and sale of inherited property
Often, the heirs face a choice: to give the property or sell it. Both options have their own financial and legal implications. The sale implies obtaining a monetary equivalent, which can be beneficial if the heir does not plan to use the object, but wants to receive funds.
Giving is a free transaction. If you compare the tax burden, then when selling property that was owned for less than the minimum period (usually 3 or 5 years depending on the basis of receipt), the heir will have to pay income tax. The tax is paid by the recipient (if not a close relative).
| Criteria | Giving | Sale |
|---|---|---|
| Heir tax | 0% (not income) | 13% (if the term of ownership <min) period |
| Tax on the recipient | 0% (close) or 13% (other) | 0% (the buyer does not pay tax) |
| Risk of challenge | High (relatives of the donor) | Medium (if suspected of fictitiousness) |
| Need for payment | No (free) | Yeah (money transfer) |
If the goal is to transfer property to a close relative, donation is more profitable and easier. If the recipient is an outsider, it is often more profitable to make a sale using a tax deduction to avoid a 13% tax on the given person.
When selling, you can use a property tax deduction of 1 million rubles (for real estate) or 250 thousand rubles (for cars), which can fully or partially cover the tax base. When donating, such deductions do not apply.
Risks of challenging a gift transaction
Gift transactions, especially those made immediately after inheritance, are often the focus of attention by other heirs or creditors. If the testator had debts, creditors may try to challenge the gift by claiming that the heir tried to get the assets out of foreclosure.
There is a concept of “gifting in anticipation of bankruptcy”. If the heir knows about his impending debts (within the value of the inheritance) and gives the property not to pay, such a transaction may be invalidated at the suit of creditors. The limitation period in such cases can be up to several years.
Also at risk are transactions where the donor at the time of signing the contract was not aware of his actions. Although this is more common for older people, having a fresh medical certificate of legal capacity will not be superfluous, especially if the donor is elderly.
⚠️ Warning: Giving should not be a fake deal that masks the sale. If it turns out that the person given actually transferred the money to the donor, the transaction can be reclassified, which will entail additional taxes and fines for both parties.
To minimize risks, the gift agreement should be drafted correctly, without ambiguous wording. The absence of counter-provision (money, services, obligations) is a key sign of the validity of the gift. Any mention of compensation makes the transaction reimbursable.
Frequently Asked Questions (FAQ)
Can you give a share in an apartment inherited without the consent of other heirs?
You have the right to dispose of your share of the property at your discretion, including giving it to you. The consent of other owners (heirs) is not required. However, they have the right of purchase only in the case of sale, not gift.
Do I have to pay taxes if I give an inherited home to my nephew?
Yes, nephews are not included in the list of close relatives according to the Family Code of the Russian Federation (in the context of donation taxation). Therefore, the nephew will have to pay 13% of personal income tax from the cadastral value of the received apartment.
How long does it take to register a gift after an inheritance?
The term of registration of the transfer of ownership in Rosreestr is from 5 to 9 working days, if the documents are submitted through the MFC - the period can be increased by 2-3 days due to logistics. In the traffic police car can be registered in one day.
Can the bank take away the gifted apartment if the testator has debts?
If the heir has accepted the inheritance, he is liable for the debts of the testator within the value of the property received. If he gave an apartment to avoid paying debts, creditors can challenge the gift transaction through the court as committed with the aim of causing harm to creditors.
Do I need to certify the gift from a notary?
For real estate – no, a simple written form is enough, if the whole object is given. If a share in the right of common share ownership is given, the notarial form is mandatory. A notary is never required for cars.