Bequeathing a gun in an estate is very different from passing on other personal property. Because a gun is a regulated piece of personal property at both the federal and state levels, an individual cannot simply list the gun and the beneficiary to whom it will pass on a tangible personal property list. Guns, therefore, require special attention when creating an estate plan.
One important factor to consider is whether the beneficiary may lawfully possess a gun at all. Under the National Firearms Act (NFA), an individual may not leave his or her gun(s) to anyone convicted of a felony, the mentally ill, or people convicted of drug trafficking or domestic violence charges. Other, less intuitive, disqualifiers include dishonorably discharged veterans in addition to those who have renounced their U.S. citizenship. It’s important to recognize that these prohibitions extend to the personal representative of the estate, as well. Thus, if a personal representative follows instructions in a will that directs the distribution of a firearm to an improper person in one of the categories above, that personal representative is in violation of the NFA and can face a prison sentence of up to ten years and/or a fine of up to $250,000.
Another factor to consider is how the gun is classified. For example, when an individual purchases an NFA Title II weapon (i.e. silencers, short-barrel rifle, short-barrel shotgun, machine guns, etc.), that individual must submit a photograph, fingerprint card, and certified approval from the jurisdiction’s Chief Law Enforcement Officer. This information is provided to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), whose approval is required under the NFA in order to transfer ownership of NFA Title II weapons. The ATF provides resources on how to identify whether a weapon falls under NFA regulations on its website: http://www.atf.gov/firearms/guides/identification-of-nfa-firearms.html. Unlawful possession of NFA Title II firearms comes with strictly enforced criminal penalties and a no tolerance policy. As previously mentioned, the NFA authorizes a fine of up to $250,000 and up to ten years in prison.
A good tool for transferring firearms is called a “gun trust,” which is a revocable living trust designed specifically for the transfer in ownership of firearms. The use of a gun trust has several advantages. First, it provides an immediate order of succession for your firearms. Second, it allows the trustee to make tax wise decisions when it comes to the use and distribution of firearms, which are often unique and valuable assets. And finally, it lowers the possession and transfer requirements for NFA Title II firearms because it does not require the approval of your local Chief Law Enforcement Officer before the application can be sent to the ATF, which saves a lot of time.
Even though the federal government has a comprehensive framework established to regulate the rights associated with certain firearms, state and local governments are not prohibited from imposing additional restrictions. Minnesota Statutes section 624.713 addresses the individuals who are prohibited from possessing firearms and Minnesota Statutes section 624.7131 outlines the steps a beneficiary must complete in order to become the new owner of any gun. This includes, at the very least, providing detailed personal information to the local chief of police and successfully passing a criminal history check.
If Congress ultimately expands gun legislation, then it could have a profound impact on an individual’s ability to transfer guns to their beneficiaries. Whether semi-automatic assault rifles or high-capacity magazines will be reclassified remains to be seen, but if you are a gun owner you will want to pay extra special attention when it comes time to develop your estate plan. For some owners, it may be beneficial to create a gun trust so that you can more easily transfer your guns to new owners through multiple generations. If you are interested in a gun trust, contact your estate planning attorney or if you do not have one, reach out to one of the Epilawg lawyers today.