Where will your guns go? | TSLN.com

Where will your guns go?

by Chrystal McDonough, McDonough Law, LLC

Whether you’re a first-time gun owner, or your family has owned firearms for generations, what happens to your guns after you pass away is something you need to think about. If your firearms end up in the wrong hands, or are transferred illegally, the consequences can be costly and devastating.

The Dangers of Transferring Guns Without the Proper Estate Planning Tool

Let’s say that Uncle Ted has a large collection of firearms, both antique and modern. Uncle Ted has no kids of his own and wants to transfer his collection to his many nieces and nephews, giving several firearms to each, and says so in his will. Uncle Ted’s executor (the person he chose to carry out his wishes) is his good friend Mr. Roland. Roland takes his executor duties seriously and distributes the firearms as ordered. But what Roland doesn’t know, is that one of Uncle Ted’s nephews has a domestic violence charge from 2-years ago. Transferring a firearm to that nephew just made Roland a felon (and the nephew, too). Despite the fact that it was an “honest mistake” and in accordance with Uncle Ted’s will, Roland is now facing costly fines (we’re talking thousands of dollars) and even jail time. The nephew is in the same boat. And Uncle Ted’s prized guns? They’ve now been confiscated by law enforcement.

Unfortunately, that’s not the only reason Mr. Roland is in trouble. One of Uncle Ted’s nieces, who happens to live in San Francisco, California, receives one of Uncle Ted’s short-barreled shotguns. Despite the fact that she has a perfect record, it is illegal for anyone to own that type of firearm in California. Once again, by transferring the firearm, Roland is facing felony charges, fines, and time behind bars.

How could Uncle Ted have protected is friend, his firearms, and his nieces and nephews?

A gun trust.

What is a Gun Trust?

A trust is a simple agreement that’s designed to transfer property in an organized and legal manner, protecting both the property (in this case a gun) and the people involved. The agreement is made between a “trustor” (the owner of the property), the “trustee” (who manages the property), and the “beneficiaries” (who benefit from and often inherit the property after the trustor’s death). Essentially, a gun trust transfers title, or ownership, of the guns to the trust, which is considered its own legal entity. The trust has more flexibility and options for using and transferring the weapons than an individual would. (Discussed in more detail momentarily.)

Gun trust trustees are typically experienced gun owners themselves who can properly handle and identify the firearms, understand gun laws, and transfer them accordingly.

How Gun Trusts Work

A gun trust is often referred to as an NFA trust because they’re typically used to transfer firearms that are classified under the National Firearms Act (NFA) and Title II of the Gun Control Act of 1968. This includes fully automatic machine guns, short-barreled shotguns, suppressors, grenades, and more. 

Typically, when you want to purchase, sell, or transfer a firearm covered under the NFA, you have to first get the local Chief Law Enforcement Officers (CLEO’s) approval, where they’ll also fingerprint and photograph the intended heirs. Only then can you apply to the Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) for a tax stamp to approve the transfer of the firearm.  A gun trust does not have to ask permission from the CLEO first. It can skip this step and go directly to the BATFE, saving both time and money. Gun trusts include very specific language to help the trustee navigate these steps and laws and avoid accidentally committing a felony.

There are many other benefits of a gun trust, as well. A gun trust avoids probate after your passing, for example. Not only will this save your estate probate and attorney fees, but it will also keep knowledge of your guns out of the public domain. (Probate is a public procedure.) A gun trust also allows more than one person to use and posses the firearms held in the trust because you can list more than one trustee. Furthermore, the firearms can remain in trust even after your passing. In other words, the trust can continue to hold title to the firearms and not transfer them to anyone. The trustee and beneficiaries of the trust can continue to use your guns, per your instructions, without the transfer fees, applications, and fingerprints.

Getting Started

Owning a gun is considered a right but with rights come responsibilities. If you are a gun or firearm owner, you have a responsibility to transfer them legally and safely.

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