Gifts of Real Property in Colorado

Gift deeds convey title to real property from one party to another with no exchange of consideration, monetary or otherwise. Often used to transfer property between family members or to gift property as a charitable act or donation, these conveyances occur during the grantor's lifetime. Gift deeds must contain language that explicitly states that no consideration is expected or required. Ambiguous language, or references to any type of consideration, can make the gift deed contestable in court.

A lawful gift deed includes the grantor's full name and marital status, as well as the grantee's full name, marital status, vesting, and mailing address. Vesting describes how the grantee holds title to the property. Generally, real property is owned in either sole ownership or in co-ownership. For Colorado residential property, the primary methods for holding title in co-ownership are tenancy in common and joint tenancy. An estate conveyed to two or more persons vests as a tenancy in common unless otherwise specified ( 31-101, 38 C.R.S.). The primary characteristic of joint tenancy is the right of survivorship. In Colorado, when joint tenancy is declared, the right of survivorship is presumed ( 31-101, 38 C.R.S.).

As with any conveyance of realty, a gift deed requires a complete legal description of the parcel. Recite the source of title to maintain a clear chain of title, and detail any restrictions associated with the property. Each grantor must sign the deed in the presence of a notary public for a valid transfer. All signatures must be original.

A documentary fee is typically imposed on an instrument based on the amount of consideration paid for the transfer ( 13-102, 39 C.R.S.). However, since no consideration is exchanged when gifting real property, these conveyances are exempt ( 13-102(2)(a), 39 C.R.S.). This exemption should be indicated on the first page of the instrument.

In Colorado, a real property transfer declaration (TD-1000) is required for all conveyance documents. This form can be completed by either the grantor or the grantee, and it must be filed with the instrument ( 14-102(1)(a), 39 C.R.S.). Record the completed deed, along with any additional materials, in the clerk and recorder's office of the county where the property is located. Contact the same office to verify accepted forms of payment.

With gifts of real property, the recipient of the gift (grantee or donee) is not required to declare the amount of the gift as income, but if the property accrues income after the transaction, the grantee is responsible for paying the requisite state and federal income tax.

In Colorado, there is no state gift tax. For questions regarding state taxation laws, consult a tax specialist. Gifts of real property in Colorado are, however, subject to the federal gift tax. The person or entity making the gift (grantor or donor) is responsible for paying the federal gift tax; however, if the donor does not pay the gift tax, the donee will be held liable.

In accordance with federal law, individuals are permitted an annual exclusion of $15,000 on gifts. This means that if a gift is valued below $15,000, a federal gift tax return (Form 709) does not need to be filed. However, if the gift is something that could possibly be disputed by the IRS -- such as real property -- a donor may benefit from filing a Form 709.

This article is provided for informational purposes only and is not a substitute for the advice of an attorney. Contact a Colorado lawyer with any questions about gift deeds or other issues related to the transfer of real property.

(Colorado Gift Deed Package includes form, guidelines, and completed example)

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