All About the Guns

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In my 20+ years practicing probate law, I have made an observation that some of our readers might find curious. If you had to guess, what would you say is the single most coveted item – the item that is most likely to go “missing” once someone passes away. Most people would say it’s mom’s jewelry, or dad’s classic muscle car or some priceless piece of artwork. Those are all great guesses. But, here in Polk County, it’s usually the gun closet that gets ransacked first.

Although making specific gifts of firearms in a will or personal property memorandum might prevent the thievery, those gifts oftentimes create problems of their own. This is because many gun owners forget to consider the recipient’s legal eligibility. If, for example, the intended beneficiary is a minor, a convicted felon, or resident of a state with more stringent regulations, the personal representative’s hands may be tied when it comes to making the distribution.

Enter the gun trust. A well-drafted gun trust can ensure that firearms and other items regulated by the National Firearm Act (NFA) (also referred to as “Class 3 weapons”) are distributed as intended by the decedent.

Gun trusts have gained so much popularity in recent years that many gun shops and websites have jumped on the bandwagon, offering on-the-spot gun trusts using standardized forms. Needless to say, this one-size-fits all approach to estate planning has some major disadvantages.

Take, for instance, the fact that gun shop employees and website administrators do not have the legal expertise to explain the structure of the trust, i.e. who the trust actors are and what powers and responsibilities each has with regard to administering the trust. Perhaps more alarming is the fact that the trust code varies from state to state and many of these standard-issue forms do not account for those nuances.

If the overarching purpose of estate planning is to provide you with peace of mind, you should at the very least understand how your trust works and know, with certainty, that it complies with the law in your jurisdiction and that your property will end up where you want it to.

A bespoke gun trust drafted by a professional affords that peace of mind and much more. In the context of antiques or NFA items such machineguns, suppressors, and short barreled rifles or shotguns, a well-drafted gun trust can be especially valuable. Because those items are heavily regulated, transferring them requires extensive background checks which – let’s face it – some beneficiaries will not pass. Gun trusts give you the opportunity to designate multiple beneficiaries, thus reducing the possibility that a gift will lapse because of one beneficiary’s ineligibility. Additionally, attorneys can draft special provisions into these trusts to allow for the removal of trustees, the inclusion of addition items, and to articulate the grantor’s intent to comply with the NFA, the Gun Control Act of 1968, and local state and federal laws.

Information on Firearms Regulation – https://www.atf.gov/rules-and-regulations/national-firearms-act

The National Firearms Act Handbook – https://www.atf.gov/firearms/national-firearms-act-handbook

ATF 41F Forms and Transfers – https://www.atf.gov/rules-and-regulations/final-rule-41f-background-checks-responsible-persons-effective-july-13

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