A citizen holding a firearm at a local gun shop.

It is fairly common when a gun owner dies for his or her probate estate to end up holding firearms.

That may be hazardous for the probate executor and the beneficiaries, whose ignorance of the federal and state gun laws could result in some pretty lengthy jail time.

First, some background. Texas lightly regulates the buying and selling of firearms. In contrast, the federal government heavily regulates every part of the firearms business. There are two main sets of federal statutes: the Gun Control Act and the National Firearms Act.

The GCA is mainly concerned with preventing certain classes of people from obtaining firearms, and making sure that firearms can be traced. The federal law prohibits firearms and ammunition from being transferred to a Prohibited Person, which includes felons, drug addicts, illegal aliens, people convicted of a misdemeanor crime of domestic violence, and people adjudicated as mental defectives.

The NFA covers specified types of firearms, such as machine guns, silencers and short-barreled firearms. These are known as NFA, or Title II, firearms. NFA firearms must be registered with the ATF, and the ATF must approve all transfers.

The federal law requires that firearms dealers, manufacturers, importers and collectors be licensed. These are known as licensees, and they have their own set of rules.

This, of course, does not begin to scratch the surface of firearms law, which has been charitably described as byzantine and uncharitably described as more confusing than the Internal Revenue Code.

Into this morass drops the poor executor who has to administer a probate estate that contains a whole bunch of handguns, shotguns and ammo.

The executor’s first duty is to classify the firearms: NFA and non-NFA. For a non-NFA firearm, the executor does not have to get prior approval or paperwork to transfer the firearm to a beneficiary; however, there are still some issues to consider. For example, the executor cannot transfer a firearm to a Prohibited Person. Then there is the age limitation: if the beneficiary is under 18, the executor can transfer ownership of a handgun (and associated ammo) to the beneficiary, but cannot give the 18-year old possession of it. If the firearm in question is a rifle or shotgun, the federal law is more nuanced – a licensee cannot transfer a shotgun or rifle to anyone under 18, but a non-licensee does not have the same prohibition. So the executor’s authority actually depends on whether he or she is a licensee.

For NFA firearms, it is a whole ‘nother matter. On July 13, 2016, the government clarified an executor’s authority in Final Rule 41f, which is found at www.atf.gov. An estate can hold an NFA firearm only if it was registered. If a non-registered NFA firearm turns up, the executor should contact the ATF immediately. For registered NFA firearms, the executor must submit paperwork and receive the ATF’s approval before transferring the firearm to a beneficiary. The paperwork must include the beneficiary’s fingerprints and a passport type photo. Once the ATF sends back its written approval, the firearms transfer must take place immediately.

Some gun owners plan ahead and transfer ownership of their guns into a gun trust, which is a form of revocable trust and sidesteps most of the problems. That is an excellent solution if it is done properly.

Hammerle Finley Law Firm. Give us a call. We can help.

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The information contained in this article is general information only and does not constitute legal advice.