Managing Guns in Your Estate
by ACTEC Fellows Professor Gerry W. Beyer and Jonathan W. Michael
There are many considerations when managing guns and firearms in your estate and leaving them to beneficiaries. Depending on the weapon, federal and state laws are in play. What must you understand to transfer a family firearm in your will?
ACTEC Fellows Professor Gerry W. Beyer and Jonathan W. Michael offer gun owners an overview of what to consider when gifting firearms in their estate plan.
Jonathan: Hello. My name is Jonathan Michael. I’m ACTEC Fellow in Chicago. Today I am here with Gerry Beyer, an ACTEC Fellow in Lubbock, Texas. Hi, Gerry.
Gerry: Hi, Jonathan.
Jonathan: Today, Gerry is going to help us run through managing guns in your estate. So, Gerry, why is it important to make special plans if you own guns?
Bequeathing Guns and Firearms
Gerry: Well, it definitely is very important to make plans because if you don’t plan properly for your firearms, they may not end up in the hands of the beneficiaries you desire. You may have guns that have been in your family for many years, and you want those treasured heirlooms to pass on to your children or other relatives or maybe even some good friends. Or maybe you’re a collector and have a significant collection of guns and other weapons that has significant value, and you want to be sure that value is not lost when you die. And in the worst case, without proper planning, these weapons might actually end up being turned over to law enforcement, where they are later destroyed, losing the heirlooms for your family, losing the value for your estate.
Jonathan: So, before we talk about the steps you might want to take, do you have any special warnings?
Things to Consider When Transferring Firearms
Gerry: I sure do. There are several very important things to keep in mind. Let’s start first by looking at traditional guns. Things like pistols, revolvers, rifles and shotguns. These are primarily governed by state law, but the laws of the states vary significantly. And in addition, certain firearms and accessories, such as machine guns and suppressors – what we call silencers – are governed by federal law, The National Firearms Act. And they require additional sophisticated planning. So, if you own any type of firearm, it is imperative that you consult with an estate planning attorney in your state who has firearm planning expertise.
Jonathan: I understand. What if I just have a hunting rifle or shotgun and want to be sure my son or daughter receives it after I die?
Gerry: It’s pretty simple. To start with, you just need a valid will that has a provision in it that expressly gives that rifle or shotgun to your desired child.
Jonathan: Now, that sounds pretty simple, but what makes this so complicated?
Gerry: Oh, there are many reasons why this simple-sounding gift may not be so easy. It’s not just like leaving a television or leaving a car. There are some really sophisticated things you need to deal with. There are three of them I want to talk about.
First, you need to make certain your child will be authorized to own the weapon. Is the child old enough, under state law, to be a weapon owner? Is the child disqualified from owning the weapon under state law, maybe due to being a felon or a drug addict or a non-U.S. citizen or others that may be listed in your state law? In fact, sometimes you actually want to run a background check on your own child because you don’t want the executor to be surprised with some information and not be able to carry out your intent with regard to the gun. And then, in case the child is determined to be unauthorized to own the weapon, you should name an alternate beneficiary in your will. And remember, just because the child would be an authorized person now to leave it to, many things could happen between now and the time that you die. So, it’s very important to have an alternative or two provided for in the will, as well.
Now second, you need to determine if the executor of your estate can legally possess the weapon and transfer it to your child. In some states, the executor actually needs to have a federal firearms license just to be able to possess it and to transfer it. Again, states vary significantly here.
And then, the transfer from the executor to the beneficiary may become more complex if you live in a different state than the beneficiary. Crossing state lines with a weapon can become very problematic if your executor is not working with someone who holds a federal firearms license. So, you can see, there are many additional concerns that would make what seems to be a simple gift far more complicated.
Jonathan: Now, earlier, you mentioned something about weapons governed by the National Firearms Act. What is that all about?
National Firearms Act and Estate Planning
Gerry: The National Firearms Act (NFA) is a federal law that governs more dangerous weapons such as machine guns and silencers. And ownership of these weapons is allowed only if they are properly registered with the NFA. For example, a machine gun, it had to be lawfully possessed as of May 19th, 1986. Ownership of newer weapons is not allowed. This was all set forth in the Firearms Owners Protection Act of 1986, a federal statute.
Now, with regard to state law, some states don’t impose any additional restrictions on the ownership of NFA weapons. They just rely on the federal rules. On the other hand, there are some states that add many and sometimes, some states almost totally ban the ownership of national firearms weapons by people. And then, if the weapon is not properly registered and you, your executor, or the beneficiary are caught with the weapon, the fine could be up to one-quarter of a million dollars, and the person could be sentenced to up to 10 years in prison.
So, if you own an unregistered NFA weapon and die, it can’t be retroactively registered. As soon as somebody finds it, it’ll have to be turned over to law enforcement and destroyed. And in addition, the requirements that a beneficiary must meet to receive a weapon governed by the National Firearms Act are tougher. For example, they cannot use marijuana, even if it’s allowed under your state’s law. And they can’t be convicted of certain crimes. Not just severe felonies, like most states, say, but even certain misdemeanors, such as domestic violence, may preclude them from ownership.
Jonathan: It certainly seems complex. Do you have any other advice on this issue?
Gerry: I sure do. You should seriously discuss with your attorney the creation of a gun trust to hold all your firearms– both the traditional weapons and the ones governed by the National Firearms Acts. Now, the requirements to establish a gun trust are somewhat complex, so you don’t want to try to handle it on your own. But the benefits, oh, they are tremendous. You can maintain possession of the weapon while you’re alive. You can name a person with the proper expertise to be the trustee. You can provide detailed instructions on who may own the weapon, who may use it and so forth after you die.
And the trustee can then make certain that the beneficiary is legally authorized to receive the weapon. You can even give the trustee the discretion to make sure that your beneficiary is sufficiently mature and responsible to handle the weapon. And in some states, you could even require that the weapon remain in the trust for many generations assuring that your children, grandchildren and great-grandchildren would be able to enjoy your firearms.
Gun Trust Forms
But I do want to leave with one warning. When you go to the gun shows, you may see gun trust forms, or you can go on the internet and find them. Please don’t use them. They are very dangerous in the hands of a layperson, just like a firearm is dangerous in the hands of someone who is not trained in their proper handling.
These forms are not prepared with sufficient expertise, and they’re not personalized to carry out the intent that you have. So, the bottom line of our discussion today is, if you have firearms in your estate and you want to be sure they go to the people you want, consult with an estate planning lawyer who has firearm expertise to be sure your intent is carried out.
Jonathan: Well, thank you, Gerry. This has been very informative. Thank you for sharing your thoughts about managing guns in your estate.