Gifts of Real Property in Maine

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, marital status, and mailing address, as well as the grantee's full name, marital status, vesting information, and mailing address. Vesting describes how the grantee holds title to the property. Generally, real property is owned in either sole ownership or co-ownership. For Maine residential property, the primary methods for holding title are tenancy in common and joint tenancy. An estate conveyed to two or more persons is considered a tenancy in common, unless a joint tenancy is clearly expressed (33 M.R.S. 159).

As with any conveyance of realty, a gift deed requires a complete legal description of the parcel. Recite the prior deed reference to maintain a clear chain of title, and detail any restrictions associated with the property.

In Maine, spouses must join in the conveyance of realty to release their homestead right in the property, regardless of whether they hold an actual interest. The grantor must indicate whether spousal joinder to waive interest in the property is required for the transaction. This ensures that the transfer "conveys any and all interest of the joining spouse to the property described in the deed or other instrument" (33 M.R.S. 772-A(1)). The deed must be signed by the grantor and grantor's spouse, if applicable, and acknowledged by an authorized individual (33 M.R.S. 203). All signatures must be original.

Most conveyances of real property in Maine are subject to a Real Estate Transfer Tax, but there are exemptions. If a conveyance is exempt, the exemption must be clearly stated on the face of the deed. See 33 M.R.S. 4641-C for a list of exempt transfers.

Record the completed gift deed with the registry of deeds in the county where the subject property is located. Contact the same office to confirm recording fees and 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 [1].

In Maine, there is no state gift tax, but gifts of real property are 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 (grantee) will be held liable [1]. For questions regarding state and federal tax laws, consult a tax specialist.

In accordance with federal law, individuals are permitted an annual exclusion of $15,000 on gifts. This means that gifts valued below $15,000 do not require a federal gift tax return (Form 709). However, if the gift's value could possibly be disputed by the IRS, a donor may benefit from filing a Form 709 [2].

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

[1] http://msuextension.org/publications/FamilyFinancialManagement/MT199105HR.pdf

[2] https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-gift-taxes

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

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