Estate Planning 101: If You Own Firearms, Consider Creating a Gun Trust

When planning your estate it is important to consider all of your belongings, and what you want to happen to them after your passing. For most items it is a simple process of choosing who you want to have the item, and listing it in your will, trust, or personal property memorandum.  When it comes to firearms, especially Class III or N.F.A. type firearms, however, it is not quite so simple  If you don’t have everything set up properly, your firearms may be deemed contraband and seized by the government.  Another risk is that your loved ones will take possession of the guns improperly, and could inadvertently commit a felony in doing so. In order to avoid these issues, owners of N.F.A. firearms (includes items such as short-barreled shotguns, short-barreled rifles, machine guns, suppressors/silencers, explosive devices, large caliber weapons, and a broad category called A.O.W. that stands for Any Other Weapon) should consider the creation of an N.F.A. gun trust, which may provide the following benefits.

Allow Multiple People to Use the Firearms

One of the biggest benefits of an N.F.A. gun trust is that you can provide access to trust firearms to multiple people, provided they are not prohibited parties.  Potentially, this may mean that they all have the right to possess and use the firearms freely, or at least to use and possess them in your presence or the presence of a trustee.

In contrast, if an N.F.A. firearm is registered in the name of an individual, then only that individual is permitted to possess or use the firearms.  Otherwise, an N.F.A. violation may occur, which could subject the parties to the following:

• 10 years in jail / felony conviction
• $250k fine per violation
• forfeiture of the firearm

Common N.F.A. violations, what may be typically termed an “accidental felony”, occur in the following scenarios when the N.F.A. item is registered to an individual, rather than a trust:

• Owner allows a friend to use/borrow an N.F.A. firearm, even if the owner is present, at a gun range
• Owner provides his/her spouse with the combination to the gun safe containing N.F.A. items (this is considered “constructive possession” even if the spouse never enters the safe)
• Owner leaves an N.F.A. firearm with a hunting partner, even for just 2 minutes

Avoid C.L.E.O. Signature

In order to acquire an N.F.A. firearm in your individual name, you will need to obtain the approval of the C.L.E.O. (typically either the Sheriff or Chief of Police in your jurisdiction) to do so.  In some jurisdictions, the C.L.E.O. simply refuses to sign off on transfers of N.F.A. items.

A gun trust may help you avoid the C.L.E.O. requirement.  If you acquire an N.F.A. item in the name of the trust, rather than individually, the C.L.E.O. requirement is waived.  However, be aware that this so-called “loophole” may be changing next year under proposed regulations, so if avoiding the C.L.E.O. certification is desirable to you, you are well-served to obtain a gun trust A.S.A.P.

Relief From Future Anti-Gun Legislation

Regardless of whether you own any N.F.A. firearms, having a gun trust may help to blunt or avoid the effect of future gun control measures.  This is a complex issue that should only be discussed with an estate planning attorney who practices in the area of gun trusts.

Easier Transfer of Ownership

When you have a gun trust set up, the firearms owned by the trust may avoid probate, which can often take months or even years to sort through.  With this trust, everything will be in order so that the guns can legally transfer ownership quickly and easily, subject to ATF approval in the case of N.F.A. items. The trust can even be drafted in a way so that trust items remain in trust for your loved ones.

Having a gun trust set up by an estate planning attorney is a fairly straightforward process in most cases, but choose wisely – very few attorneys are experienced in this area of the law.  If you own any firearms, particularly N.F.A. firearms, give us a call today to discuss whether or not this type of trust is right for you!