According to paragraph 1 of article 940 of the Civil Code, “Donation is the contract by which a person, in a spirit of liberality and at the expense of his assets, has a thing or a right free of charge, or assumes an obligation, for the benefit of the other contractor".
In other words, a donation is nothing more than a contract through which a grantor donates a good to another, freely renouncing his property on that good.
The contours and characteristics of this type of contract are duly regulated in the Civil Code.
It is also worth mentioning three important aspects to keep in mind about donations:
- They cannot be made on future assets;
- They have to be done in life;
- The donor cannot delegate the definition of this contract or the designation of the donor to a third party, nor by mandate (this rule concerns the personal nature of the donation).
A donation can be made for goods of any nature, although it is more common to hear about a donation of real estate.
How to make a donation?
Take, for example, the case of Nádia, the only daughter to whom her mother wanted to donate the T1 apartment she bought in her maiden days and who quickly became small for the whole family. What steps will you have to go through to complete the donation? Let's see.
Step 1: gather the necessary documents
To donate the property to her daughter, Nádia's mother needs to have the following documentation with her:
- Identification documents (Identity Card / Citizen Card) of both parties (donor and grantee);
- Housing permit or, if applicable, construction;
- Content Certificate the property description and the current inscriptions, passed by the Land Registry Office;
- Building Book updated.
Step 2: decide whether to make a usufruct reservation
The usufruct reserve consists of the possibility for those who donate to be able to reserve for themselves, or even for third parties, the right to enjoy the donated goods.
Given the example given, a usufruct reservation could be made for Nádia's mother, which would imply that, although the donated property became the daughter's property, the mother could enjoy it in case of need.
Step 3: proceed with the deed of donation
In the case of donations of real estate, they must be signed by public deed or certified private document.
So that you can get a sense of how to make a contract of this kind, you can do the download for free of the document below, which contains a draft of a donation contract with a usufruct reservation, taken from the Land Registry Online:
The deed of donation has to be done in a Notary's Office and in this can be concluded all the stages of the process, since here it is usually not only the celebration of the deed, but also taxes are paid and registration is made.
In any case, it is always possible to call on a lawyer before this process to clarify doubts and address any legal issues that may have an impact on the donation.
Do donations pay tax?
The answer to this question depends essentially on one aspect: the relationship between donor and donor.
Donations are exempt from Stamp duty if they are carried out in favor of:
- Descendants (children and grandchildren);
- Ascendants (parents and grandparents);
- Spouse / de facto partner.
All other grantees who do not fall into any of these categories have to pay 10% tax on the value of the movable property that is donated to them and also an increase of 0,8% in the case of real estate.
In what situations can a donation be considered null?
There are at least six situations in which this type of contract may be invalid:
- Among married people if the marriage regime out of separation of goods;
- Between a spouse and another person with whom the first committed adultery, unless, at the date of the donation, the divorce process was completed or there was a de facto separation more than six years ago;
- By persons considered legally prohibited / disabled, in favor of their tutor or asset manager;
- For a sick person in favor of a doctor or nurse who is involved in their treatment if the donation occurs during the disease and the patient dies from it;
- For a sick person in favor of a priest who provides spiritual assistance if the donation occurs during the illness and the patient dies from it;
- In favor of a notary or an entity with similar functions that has intervened in the process.
In conclusion, there are some advantages that can result from proceeding with the donation in life: not only disputes between heirs can be avoided, but it generates security in the donor's patrimony, because that way there will always be certain who the recipients of the goods are. In addition, few steps are needed to deal with a donation, which can all be carried out in a Notary Office, without great loss of time and money.