3 Tax Implications To Consider Before Gifting Property

sarah ryan
Sarah RyanAccount Manager @ Lawhive & Non-Practising Solicitor
Updated on 23rd November 2023

Are you thinking about gifting property or assets to your loved ones? Gifting is a wonderful gesture that can bring joy and security to your family members.

It can also be an effective way of reducing tax liabilities, however the rules aren't straightforward and it's very easy to get yourself tied up in knots when trying to figure it all out.

tax-implications-when-gifting-property

In this article, we'll look at whether you can gift property to your children, family members, or anyone else and the tax implications you may face in doing this.

Can I gift property to my children or family members?

You can gift a property to a loved one, including children, partners, family members, or even friends. This is called a Deed of Gift.

Having said that, while gifting a property is most definitely a generous act, there are tax implications and potential risks to consider before you do.

Any tax you might pay on the gift of a property hinges on the property and the person you are making the gift to. Let's break it down:

Property gifts and inheritance tax

First up under the microscope is Inheritance Tax (IHT), which is a key factor for many people when it comes to estate planning.

When it comes to IHT, gifts (including property) are usually exempt if:

  • The gift was made more than seven years before a person's death;

  • Or the value of the estate falls below the nil rate band.

Having said that, there are nuances to this.

For example, if you gift a property to your child and continue to live in it without paying market rent, it can still be counted as part of your estate because you have continued to benefit from it.

Property gifts and stamp duty

If you gift a property without a mortgage, then the receiver won't have to pay Stamp Duty Land Tax.

However, if the receiver takes over some or all of an existing mortgage and the value exceeds the Stamp Duty Land Tax threshold (£250,000), then they will have to pay stamp duty on it.

What's more, when gifting a property with an outstanding mortgage, lenders need to agree to the transfer of equity beforehand. They will only do this if the receiver is deemed to be able to afford the mortgage repayments. If they can't afford the repayments, they may not be able to take over the mortgage, or they may have to find a guarantor.

Property gifts and capital gains tax

If you gift a property to your husband, wife or civil partner, you do not have to pay Capital Gains Tax on it unless you separated and did not live together at all in that tax year (6th April - 5th April) or you gave them goods for their business to sell on.

However, if your spouse or civil partner then goes on to sell that property they may have to pay tax on any gain they make from it.

Capital Gains Tax is also payable on gifts of property if they aren't your main home (for example, a buy-to-let property or holiday home) and the property is worth more than when you bought it and that increase exceeds the Capital Gains Tax threshold.

Can you gift part of a property to a child or family member?

Yes, it is possible to gift part of a property to a family member.

If you do this, when it comes to IHT, the portion you gift to your child or family member won't be included in the probate valuation of your estate provided the gift was made more than seven years before your passing.

What's more, the gift won't be subject to Capital Gains Tax, as the house will still be your main residence if you continue to live in it. And, if there's no mortgage left on the property, the receiver won't have to pay stamp duty either.

Potential risks of gifting property

On paper, gifting properties to family members, such as your children, can seem like a great idea. Not only are you potentially setting them up for life, in some circumstances you may be reducing your tax liabilities.

However, it is important to seek specialist advice before you gift a property to anyone in order to mitigate potential risks including:

When you gift a property to anyone, you give up any legal rights to it, which is a risk in and of itself. While you might like to think that your loved ones wouldn't see you without, no longer owning your property puts you in a very vulnerable position.

If you continue to live in a property after gifting it to someone else, you should keep in mind that they would have the power to legally evict you if they wanted to, or sell the property from underneath you.

Income Tax Considerations

If you gift a property to a family member or loved one and continue to live in the property, you must pay market rent if you don't want it to count towards the valuation of your estate.

The result of this is the receiver of the gift (i.e. the person you'll be paying rent to) may then have to pay income tax on that income.

Deliberate deprivation of assets

Gifting a property may well be seen as a deliberate deprivation of assets. This is when you deliberately give away your assets in order to avoid paying for care when you're older.

Bankruptcy

If you gift part of a property to a family member or loved one, if either of you go bankrupt there's a risk of everyone involved becoming homeless or losing the house.

Get help with estate planning from the UK's best solicitors and lawyers

The law around tax and property can be very confusing. If you're in need of help and advice relating to estate planning, our solicitors are on hand to provide expert advice for fixed fees.

To get started, tell us about your case and our legal assessment team will be in touch with next steps and a no-obligation fixed fee quote.

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