Gun Trusts: Do You Need One?
Gun trusts are designed to make the purchase, ownership, and transfer of federally regulated firearms easier. Without a gun trust, it may be impossible to even acquire a regulated firearm in some jurisdictions (discussed further below). Gun trusts can also prevent gun owners and their family members from inadvertently violating federal and state gun laws.
For example, consider the following scenarios:
You own a shotgun for home protection purposes, which you store in a locked safe at your residence.Both you and your spouse know the safe combination and have access to its contents.You have also legally purchased and are the registered owner of record for a suppressor, which you often take to the gun range to make your shooting experience more enjoyable.You also store the suppressor in the safe with the shotgun.
On occasion, your friend accompanies you to the gun range and you loan him your gun with the suppressor affixed.
Technically speaking, both of the above scenarios have potentially resulted in the “constructive possession” and transfer of a restricted weapon to an unauthorized person, which could be prosecuted under the National Firearms Act of 1934 (NFA). That is because a suppressor is one of several types of weapons that are prohibited from being possessed or used by anyone other than the registered owner.
To avoid these “accidental felonies,” many gun owners are setting up gun trusts to purchase and own restricted weapons. Gun trusts can allow gun owners to share firearms with family members and friends without unintentionally violating restrictive laws, which can carry hefty criminal penalties. Gun trusts may also offer a measure of protection from potential changes in the legal landscape that could further restrict the transfer and possession of these firearms.
Types of Weapon Held in Gun Trusts
Gun trusts are used to hold firearms which are regulated by the NFA and Title II of the Gun Control Act of 1968. These weapons, which are referred to as NFA or Title II firearms, include machine guns, short barrel shotguns and rifles, silencers, destructive devices (such as grenades) and another category termed “any other weapons,” which includes camera guns, pen guns, umbrella guns, etc.
The NFA requires that these firearms be registered with the Bureau of Alcohol, Tobacco, and Firearms (ATF) and only the registered owner may use and possess the firearm. In addition, individuals must submit a photograph and fingerprints, pay a $200 tax, and obtain permission from the Chief Law Enforcement Officer (CLEO) in the jurisdiction in which they reside. Unfortunately, some CLEOs may refuse to sign or acknowledge ATF forms as a matter of policy, making the purchase or transfer of a firearm difficult to impossible for many law-abiding citizens.
Violations of the NFA can result in up to 10 years in prison and/or up to $250,000 in fines.
Benefits of a Gun Trust
Eliminate barriers to ownership / Provide privacy: A gun trust can legally own firearms without being required to submit fingerprints, a photograph or approval of a local CLEO.
Facilitate transfer and sharing of weapons during life: Where a weapon is owned individually, only the registered owner is legally permitted to use or have possession of the weapon. Trusts can be designed to allow multiple individuals to legally use the weapons.
Facilitate transfers of weapons upon death: A gun trust can be structured to last beyond the owner’s lifetime, with weapons held and shared according to trust terms. Retaining the weapons in trust helps heirs avoid having to go through cumbersome transfer procedures. The trust can ensure that children do not receive firearms if they live in a jurisdiction where it is illegal to possess them.
Facilitate transfers of weapons upon incapacity: A gun trust can provide clear instructions for loved ones regarding what they can and cannot do if a gun owner becomes incapacitated; without a trust, family members may come into contact with restricted weapons, which could put them at risk of inadvertently violating federal or state law.
Avoids probate: Many executors are not familiar with the regulations surrounds NFA weapons and can accidentally violate criminal laws by transferring weapons without going through proper transfer procedures. Guns held in trust will avoid the probate process altogether at the gun owner’s death, making the estate administration easier on the executor. Additionally, because items contained within a trust avoid probate, the contents of the trust and how and to whom they are distributed will remain totally private.
Potentially avoids future restrictions on gun transfers. Many gun advocates fear that future legislation could result in even heavier restrictions on NFA weapons. The hope is that firearms held in gun trusts will circumvent any such legislation.
Our attorneys are here to help! Contact our office for additional information about trusts and estate planning.
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