Estate planning is a commonly-overlooked piece of firearms safety. One of the greatest risks of personally owning firearms regulated by the National Firearms Act (NFA) is the legal restriction prohibiting anyone from handling your firearm(s) outside your presence.
Under the legal doctrine of constructive possession, third parties cannot even access to your NFA firearms outside your presence. Practically speaking, if anything happens to you, this means that neither a court-appointed estate administrator or even your spouse would be allowed to access your firearms safe.
As a means of avoiding unintentional liability, gun trusts can be useful, lawful transfer mechanisms for those firearms regulated by the National Firearms Act and Title II of the Gun Control Act.
Firearms regulated under the NFA include:
(1) a shotgun having a barrel or barrels of less than 18 inches in length;
(2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;
(3) a rifle having a barrel or barrels of less than 16 inches in length;
(4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;
(5) any other weapon, as defined in subsection (e);
(6) a machine gun;
(7) silencers; and
(8) a destructive device.
26 U.S.C. 5845; 27 CFR 479.11
Firearms that do not belong to that class of weapons may not necessitate a firearms trust. However, transfer of firearm ownership can still raise legal issues.
A NFA trust (also known as a gun trust, ATF trust, Title II trust, or Class 3 trust) creates a fiduciary relationship for gun-owning trustors to give a trustee the right to hold assets on behalf of one or more beneficiaries. Such trusts not only allow owners of NFA-regulated firearms to avoid some federal transfer obligations that would otherwise be imposed on an individual, but also like other trusts, it creates an estate planning mechanism for inheriting firearms.
Who takes possession of firearms after you die?
Prudent firearm owners and estate administrators alike should consider who can (or will have) access to a decedent’s firearms not just during the gun owner’s life but also after their death. Estate administrators have a responsibility to secure weapons and mitigate liability of transferring possession of a firearm to a person unlawfully, to avoid unintentional violations of federal and state laws.
Prudent firearm owners should consider:
- Are your firearm(s) regulated by the National Firearms Act and Title II of the Gun Control Act, which limits the transfer of gun ownership?
- Will your firearm(s) pass to a minor child in will or by other operation of law?
- Have you relocated or do you intend to relocate to another state?
- Will your firearm(s) pass to an heir living outside your state?
- Is your executor or estate personal representative a felon or may otherwise be disqualified from possessing a firearm?
- Are your heirs a felon or otherwise be disqualified from possessing a firearm?
Generic estate planning typically found online are generally not designed the specific needs of firearms owners offer insufficient protection of your privacy, safety, or control over firearms.
If you are a firearms owner in need of estate planning or are administering an estate that contains firearms, consider speaking with an attorney to review your estate planning and administration needs, so you can protect yourself and your family from unintended consequences in the future.