Firearms and Estate Planning
Guns are unlike most other types of property, and gun-related activities are treated differently than most other kinds of activities. There is a complex web of regulation including civil, criminal, probate, and even tax regulations. Many of these regulations wildly vary from one jurisdiction to the next and are difficult for many gun owners to keep up with. Guns are unlike any other types of personal property due to the sheer volume of both federal and state laws regulating them. This graph shows how just federal gun laws alone have grown since the 1700s, most of which have been enacted in the last 75 years alone.
What is Regulated?
- How you buy a gun is regulated.
Who you can buy from, where you can buy from, and whether you can buy a firearm for someone else. - What types of guns and ammo you can buy are regulated.
Things such as “assault rifles”, “high capacity magazines” (or rather standard capacity!), silencers, multiple handgun purchases, and armor piercing ammo. - How and where you carry a gun is regulated.
Gun free zones, schools government property, concealed, open, loaded, and unloaded. - Where you shoot a gun is regulated.
Places such as national parks, state parks, BLM land, state trust land, private property, roads, and bodies of water. - Where you shoot a gun is regulated.
Places such as national parks, state parks, BLM land, state trust land, private property, roads, and bodies of water. - What time of day you shoot is regulated.
Disturbing the peace, nuisance, hunting at night time, and noise ordinances. - How and to whom you give a gun to during your lifetime and after death is regulated.
Residents of other states, prohibited possessors, felons, minors, individuals with misdemeanor domestic violence convictions, certain individuals with a psychiatric history, and individuals under indictment of certain crimes that have not been convicted yet.
Gun Laws and the Inheritance Process
Unlike other personal property like furniture or jewelry, guns carry the potential to commit felony crimes merely by inadvertent actions. You can simply give a watch as a gift to your cousin that lives in another state, but you can’t simply give a gun as a gift to that cousin. There are countless ways to accidentally commit a crime with a firearm, including during the inheritance process. If a beneficiary or heir is to receive a firearm as an inheritance (or part of an inheritance) and they live in another state, it is imperative that the laws of the other state are considered, in addition to Arizona and federal law. Obviously, the heir or beneficiary must be able to legally own a firearm, but the trustee or personal representative must ensure that all other laws are complied with as well, including requirements to perform background checks prior to delivering the firearm. As such, planning for the disposition of firearms and firearms-related accessories such as magazines, requires special planning by a qualified attorney to ensure the client’s wishes are met and the law is complied with.
A Crucial Part of an Estate Plan - A Gun Trust
Given the volume and complexity of federal and state gun laws, it is easy to see why a specialized gun trust is a crucial part of any estate plan that involves firearms: the standard revocable trust simply isn’t equipped to deal with the myriad of state and federal gun laws. The problems and risks don’t simply occur after the creator of the trust dies and distributions are made; the problems start at the very creation of the standard revocable trust. A standard revocable trust almost assuredly will not even contain the word “gun” or “firearm” or “ATF,” much less have provisions to ensure trustees and beneficiaries do not accidentally break the law. Additionally, most, if not all, standard revocable trusts have provisions for a general assignment of all of the grantor’s (the trust creator, also known as settor or trustor or trustmaker) personal property to the trust. This is a natural and normal way of funding the trust (funding is the process of putting assets into the trust) and is rarely problematic, except when it comes to guns.
Assigning guns to the trust may be illegal, indeed, it may be an illegal transfer under both federal and/or state law with possible prison sentences of up to 10 years. Some states have laws that require firearms to be registered in the state and that all transfers require prior approval by the appropriate state agency – the simple assignment to the trust may violate those laws. Likewise, it is absolutely clear under federal law that an assignment of an NFA firearm requires prior ATF approval and payment of the $200 transfer tax before you assign the firearm. Sadly, there are tens of thousands of poorly informed people who have made such an assignment without knowing they broke the law. Even worse, there are tens of thousands of estate planning attorneys that accidentally helped their client break the law that don’t know either. These problems at trust creation are just the tip of the iceberg – there are countless possible problems and crimes that may be committed at other times through out the life of a trust too – such as during distributions. The solution to these problems and accidental felonies is to incorporate a quality gun trust prepared by a knowledgeable gun-law attorney into the estate plan. The gun trust and estate planning trust must be correlated together to ensure proper legal compliance.
Estate Planning for Gun Owners
Reasons to establish a comprehensive estate plan:
- Avoid probate, the expensive and public court process designed to administer and distribute your estate
- Provide for minor children and other loved ones
- Controlling who receives your assets
- Protect your assets and keep them in the family
- Provide for family members with special needs
- Setting up advance medical directives to ensure your loved ones can take care of you if something happens
- Many others…
These reasons apply to gun owners, but gun owners also have unique concerns that make setting up a comprehensive estate plan even more important:
- Leaving a legacy of responsible firearms’ ownership to children and other family members
- Ensuring family members, particularly those not as familiar with firearms, do not inadvertently commit a crime
- Keeping the gun collection private and out of as much government regulation and scrutiny as possible
- Acquiring, owning, and sharing firearms among family
If you would like to set up an estate plan, or would simply like more information please feel free to call or email us today. If you would like to spend more time reading about estate planning generally, please visit us at the estate branch of our firm, Woods Law Group.
