By Virginia Hammerle, Attorney
Guns are regulated by a mix of federal and state laws. Probating an estate that contains guns can be difficult, and could even expose the executor to criminal penalties.
The National Firearms Act, the Gun Control Act of 1968 and, most recently, the Firearm Owners’ Protection Act outlines gun regulation for certain types of firearms, such as machine guns, suppressors, short-barreled shotguns (sawed-off shotguns), and destructive devices (mortars, howitzers, grenade launchers). NFA firearms are also commonly referred to as “Title II weapons” because these firearms are defined in this title of the National Firearms Act and Gun Control Act. For a more complete description of the covered firearms, go to http://www.atf.gov/publications/download/p/atf-p-5320-8/atfp-5320-8.pdf.
Unlawful possession of Title II weapons, be it actual or constructive, comes with strictly enforced criminal penalties and a no tolerance policy. The NFA authorizes a fine of up to $250,000, up to ten years in prison, and the forfeiture of the weapon and any “vessel, vehicle, or aircraft” used to conceal or convey the firearm. Transfer of a Title II NFA firearm to an individual is a long and tedious process.
That makes it critical that an owner take steps to protect a client’s family members and friends from illegally possessing or transferring NFA classified weapons during and after the owner’s lifetime.
Many estate planning lawyers recommend that guns be owned by a Gun Trust. That way, gun ownership doesn’t have to be transferred when someone dies. Basic underlying principles of trust formation apply to the creation of a Gun Trust. When determining the people to involve, there has to be more than one beneficiary – if the original owner is both a sole beneficiary and the sole trustee, then no trust will actually be created.
Call us if you need help structuring your ownership and estate.