Estate Planning Considerations for Firearms
Approximately one-third of Americans own a firearm, and many own more than one. Some may own dozens or even hundreds. Firearm Ownership is subject to many restrictions, and carries with it a significant element of risk, it is important to consider firearms as part of a comprehensive estate plan.
Why Should Clients Engage in Firearms and Gun Trust Planning?
What risks are involved in not engaging in firearms planning? A family member or other fiduciary may be otherwise responsible but know little about the client’s guns and be uninformed about the applicable laws. The guns could be improperly stored or cared for, given away or sold for less than market value, or even transferred illegally. The fiduciary could be exposed to civil or criminal liability, even for inadvertent violation of state or federal law.
Proper planning can help avoid these problems.
As estate planners, we are experts in the planning process—asking the right questions, considering the client’s unique circumstances, and producing solutions. In planning for firearms, we must also overlay the complex web of federal and state regulations.
As is the case with most other assets, there are several reasons to use a trust when planning for firearm ownership: privacy, ease of management in the event of incapacity, and avoidance of probate. While a conventional revocable living trust (RLT) can be used to own guns, for clients with larger collections or NFA weapons, a purpose-built gun trust is by far the best tool for the job.
What Exactly Is a Gun Trust?
There is no formal definition of a gun trust—virtually any valid RLT can own firearms. And gun trusts sold online or by gun dealers are often just RLTs with nothing firearms-specific about them.
However, to provide the optimum benefit to the client, a gun trust should be specifically tailored for the intended purpose: firearms ownership, management, and disposition. Special assets require special tools.
Possession and Transfer
Possession and transfer are important concepts when it comes to firearms, particularly NFA weapons. Both provide potential pitfalls for the unwary. While the definition of actual possession may be clear, constructive possession can be tricky. A person may have constructive possession if they can easily access a weapon. The following are examples of constructive possession:
- Knowing where a roommate’s or family member’s unsecured gun is in the house
- Having the key or knowing the combination to a family member’s or roommate’s gun safe
Constructive possession of any firearm by a prohibited person is a crime, as is constructive possession of an NFA weapon by anyone other than the registered owner or their legal representative (such as an executor or co-trustee). We don’t want our clients to be victims of the “accidental felony” (or any on purpose felony either, but that’s another blog topic altogether.)
The NFA defines transfer as “selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of” a firearm. Notice that this includes “loaning.” So if your client gives a friend their silencer to take to the range for a day, a felonious transfer has occurred, and the friend is in felonious possession.
In addition to criminal penalties, clients need to be aware of civil liability issues. If a client allows a prohibited person or nonauthorized user of an NFA weapon access to a gun and that person shoots someone, even accidently or in self-defense, the lawful gun owner could be found at fault based on negligent entrustment or a similar theory.
If you don’t have estate planning, or forgot to let your attorney know of this very tricky asset during your consultation, give us a call at 614-429-1053. We are happy to book a consultation and help you plan for your firearms today!