One year after the entry into force of Law 27.587, there was an exponential increase in property donation in the country.
According to Bonaerense's school, in the province of Buenos Aires, there was an increase of more than 330% in the donation of properties compared to the same period of 2020.
It is that, with the aforementioned modification, donations of real estate are no longer observable before justice and have no obstacles to be sold or used as bank guarantees.
In this way, it resurfaced the possibility of advanceing inheritance in life.The implementation of this mechanism had been hindered by the Civil and Commercial Code.
All forced heirs continue protected, only now if there is a donation that affects their rights, the death of the donor can be used other mechanisms.
The other heirs can compensate with values to the affected heir, through the collation action instead of the reduction action that directly impacted on the donated property, even if it had been sold.The rights of third parties that had acquired goods that had been donated, if they are in good faith and for a burdensome and for basis,.
For Jorge Grispo, head of the study that takes his last name, "it is clear that the spirit of the law seeks.
For the former, the reduction action will continue to be applicable, while, for the latter, only the collation action will be applicable.
The difference is that, in the collation action, the coheir who did not receive the donation can claim the donating coheir, who did receive a donation, the "value" of the donated that exceeds the available part, and endangers the partlegitimate inheritance.That is, that minimum portion that corresponds to each forced heir (legitimary).The descendants, the ascendants and the spouse are legitimary.
Both measures protect the legitimate portion of all heirs, but the collation, unlike the reduction action, does not allow to discuss with respect to the good that was transmitted;that is, it is not allowed to carry out actions against this good, but that the value of the donation that exceeds the legitimate portion could be pursued.
"The difference is of importance, it will allow the flow of operations in the furniture market to increase, especially expediting the circulation of real estate, something preponderant taking into account the complexity that arise from these operations, while, also, it will leave behind the use of the use of the useof costumes of the will of the donor, used prior to the sanction of the new law in these cases, "said the specialist.
Las donaciones de inmuebles ya no son observables ante la Justicia y no tienen trabas para venderse o usarseSITUATION TABLE AND THE COMPLICATIONS OF 2015
Free donations of real estate to children were accepted for more than 100 years peacefully, considering them inheritance advances.
When the donor died, the heirs could only make claims between them and not against whom he would have bought the property from the original donor.
Thus, property titles were not notarially observable, as were the donations of real estate to non -legitimary third parties, that is, to those who were not forced heirs of the donor.
With the Civil and Commercial Code that entered into force in August 2015, it was established that it could also be operated between legitimacy and against those who acquired the properties from the donataries.
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This turned out that both donations from parents to children and donations to third parties were observable titles, and would continue to be for the following deadlines:
They ceased to be observable with the fulfillment of the first of those two deadlines.
The impact of modification
Each family will be able to again consider the possibility of making "advances of inheritance", through free donations of real estate.
In case of resignation in life, or death of the usufructuary, the property does not enter into success, but simply notified to the registration of real estate the death with the death certificate registered in the record of the civil status and capacity of the people.
Given this single presentation, the Property Registry cancels the annotation of the usufructuary, therefore the owner of domain (the donating son) as a holder of the full domain automatically.
What happens if there are differences to death
At the death of the donor, his heirs will verify the assets that remained to inherit, and if there were no testament with improvements to any within the available portion, which is one third of the heritage, all children must inherit in equal parts.
In case of differences, the values of the goods given in donation are collation, claiming the values only to their brothers, but not having the right to be able to act judicially against any third buyer, acquirer in good faith and by way of a hint onerous.
Yes, all the remaining free donations of real estate, which are made in favor of third parties, are observable for the deadlines of 5 andone person to another for emotional links, among others.
Cada familia va a poder volver a considerar la posibilidad de hacer "adelantos de la herencia"How is the donation made?
To specify the donation, the owner must submit the title of property and accredit to be up to date with the payment of the real estate tax.
If the property is affected by the housing protection regime (previously called family asset) it is not necessary to disaffect it if the donor reserves the usufruct of the donated.
In addition, the usufruct can also be established in favor of the donor's spouse, to leave it covered if he died first.
If the property is located in the province of Buenos Aires or the beneficiary of the donation has its domicile in Buenos Aires territory, the Free Transmission Tax (ITGB) must be paid, whose amount is variable depending on the fiscal valuation of the property and thekinship bond between donor and donatario.In the city of Buenos Aires there is no tax.
As for the AFIP, the donation does not pay earning tax.But, in case of sale, you could have to pay cedular profits, which is 15% and the difference between the sale price and the purchase price updated by the legal index is calculated, and in that case it is paid in the affidavitannual.
But it may not also be so, because if the one who donated it had bought before 2018, the donor when in the future sells, it continues to pay ITI (Tax on the transfer of real estate and non -cedular profits, which is also a great tax advantageTo take into account when promoting these donations, said notary Adrián Comas.
The Notary, meanwhile, sets a percentage according to the value of the property.
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This is an act that, having no tax burden, except in the province of Buenos Aires, is not burdensome.