About a third of the adult population of the United States owns a gun according to a Gallup survey that also found that 44% of people live in a household where there is a gun. When gun owners die, passing their firearms on to heirs is not as simple as leaving them a car or bank account. Federal and state laws regulating ownership, possession and transfer of firearms complicate the process of disposing of them when a gun owner dies.
Failing to follow the complex rules and regulations governing the sale and transfer of firearms has serious consequences. When an estate includes firearms among its assets, the executor or administrator who distributes the guns to heirs of the estate could face criminal charges unless it is done in full compliance with the law.
If you are a gun owner or collector, a simple method exists to ensure the smooth, hassle-free transfer of firearms to your heirs. Inclusion of a gun trust as part of your estate planning gives you flexibility in handling the disposition of firearms after your death that a will does not.
What happens when the owner of firearms dies?
The general rule for someone buying, selling or transferring firearms in California is for the transaction to be handled through a dealer licensed by the state. A firearms dealer maintains a Dealer Record of Sale (“DROS”) and electronically reports it to the California Department of Justice. The DROS process includes a requirement that the dealer obtain and transmit a thumbprint of the person acquiring the firearm. An exemption from the DROS process exists for transfers between a parent and child or a grandparent and grandchild, but the exemption does not extend to other family members, such as brothers and sisters.
When gun owners die, their firearms become assets of their estates to be distributed according to the terms of their wills or through intestacy, which is the process for distribution of the estate of individuals dying without a will. The executor of the will or administrator of someone dying intestate would have to ensure that the transfer of firearms conformed to procedures governed by state and federal firearms laws. Some of the factors complicating the process may include:
- Under California law, a handgun cannot be given to a person who does not have a handgun safety certificate.
- Transfers involving certain types of firearms, including short-barreled rifles and shotguns governed by the Gun Control Act of 1968 and the National Firearms Act, require state law enforcement and U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives approvals.
- Probating a will and intestate administration require court processes with records available for viewing by the public.
Someone with a gun collection may wish to make it available for use by the entire family without giving possession to a particular person. All of these issues can be resolved through a gun trust.
What is a gun trust?
Instead of allowing firearms to pass to heirs through a will or intestate administration, you can establish a gun trust. A gun trust, which is also known as an NFA or National Firearms Act trust, can be either a revocable or irrevocable trust agreement drafted in consultation with a trusts and estates attorney at NM Law.
A gun trust gives you the opportunity to choose as its trustee someone who is familiar with gun laws, particularly with state and federal laws pertaining to transfer of ownership, and who is qualified to take possession of and safely handle the firearms you own. Ownership or title to the firearms you own is transferred to the trust.
Upon your death, the trustee will transfer ownership according to the instructions contained in the trust agreement. If you wish, you may direct that ownership shall remain with the trust and provide for use of the firearms by designated family members or other people. Doing it this way allows you to keep a collection intact while making it available for use by those people you designate. It also avoids transferring ownership of the firearms and the legal processes the laws would require.
Consult with a trust and estates lawyer
Whether you are a gun owner, collector or enthusiast, a gun trust may be something for you to consider when planning your estate. The trusts and estates lawyers at NM Law, APC, can provide more information about a gun trust and how to incorporate it into your estate plan. Contact them today at 949-253-0000 to schedule a consultation.