Gifts of Real Property in Tennessee

A gift deed, or deed of gift, is a legal document voluntarily transferring title to real property from one party (the grantor or donor) to another (the grantee or donee). A gift deed typically transfers real property between family or close friends. Gift deeds are also used to donate to a non-profit organization or charity. The deed serves as proof that the transfer is indeed a gift and without consideration (any conditions or form of compensation).

Valid deeds must meet the following requirements: The grantor must intend to make a present gift of the property, the grantor must deliver the property to the grantee, and the grantee must accept the gift. A gift deed must contain language that explicitly states no consideration is expected or required, because any ambiguity or reference to consideration can make the deed contestable in court. A promise to transfer ownership in the future is not a gift, and any deed that does not immediately transfer the interest in the property, or meet any of the aforementioned requirements, can be revoked [1].

A lawful gift deed includes the grantor's full name and marital status, as well as the grantee's full name, marital status, mailing address, and vesting. Vesting describes how the grantee holds title to the property. For Tennessee residential property, the primary methods for holding title are tenancy in common and tenancy by entirety. A conveyance of real estate to two or more unmarried persons creates a tenancy in common, unless a different intention is clearly expressed. (Note: 66-1-107 abolishes survivorship in joint tenancy; consult a lawyer for questions regarding joint tenancy and/or survivorship rights in Tennessee.)

As with any conveyance of real estate, a gift deed requires a complete legal description of the parcel. At the end of the legal description of the property, include the name, license number, and address of the surveyor who prepared the boundary survey from which the description was prepared (T.C.A. 66-24-121). Recite the source of title to establish a clear chain of title, and detail any restrictions associated with the property. Record the completed deed, along with a completed Oath of Consideration (T.C.A 67-4-409) at the local county Recorder's office.

The IRS implements a Federal Gift Tax on any transfer of property from one individual to another with no consideration, or consideration that is less than the full market value. 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. But, if the gift is something that could possibly be disputed by the IRS -- such as real property -- a grantor may benefit from filing a Form 709 [2].

In Tennessee, there is no state gift tax. Gifts of real property in Tennessee are, however, subject to the federal gift tax, which the grantor is responsible for paying; however, if the grantor does not pay the gift tax, the grantee will be held liable [1].

With gifts of real property, the recipient of the gift (grantee) is not required to declare the amount of the gift as income, but if the property accrues income after the transaction, the recipient is responsible for paying the requisite state and federal income taxes [3].

This article is provided for informational purposes only and is not a substitute for the advice of an attorney. Contact a lawyer with any questions about gift deeds or other issues related to the transfer of real property. For questions regarding federal and state taxation laws, consult a tax specialist.

[1]
https://nationalparalegal.edu/public_documents/courseware_asp_files/realProperty/PersonalProperty/InterVivosGifts.asp
[2] http://msuextension.org/publications/FamilyFinancialManagement/MT199105HR.pdf
[3] https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-gift-taxes

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

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