GUN TRUSTS AREN’T DEAD AND HERE’S WHY
Gun trusts are not a dead letter and won’t be for the foreseeable future. The explosive growth in the popularity of suppressors over the last ten or so years led to gun shops and gun trust mills churning out gun trusts by the thousands to get potential buyers around the biggest obstacle to suppressor ownership, the CLEO certification. Now that 41F has removed that obstacle to individual ownership of NFA firearms like suppressors, machine guns, short barrel rifles and shotguns, destructive devices and AOWs, many people are wondering whether a gun trust is still worthwhile. The answer to that question is yes.
A purpose built gun trust has always been about far more than just getting past the obstacles to NFA firearm acquisition. Owning any firearm is fraught with potential legal risk even if the owner never pull the trigger. The patchwork quilt of federal, state, and local laws restricting possession, transfer, storage, and use of firearms are filled with traps for the unwary gun owner. Ownership of NFA firearms only amplifies the consequences of failing to follow the rules. A properly drafted gun trust is an invaluable tool in helping gun owners negotiate these laws without unwittingly committing a crime.
A gun trust doesn’t just help keep a gun owner out of trouble with the law, it also provides control over the ownership of firearms while the owner is alive and well and disposition of their firearm collection upon the owner’s incapacity or death in a way that simply isn’t possible without a trust. A purpose built gun trust should be a full firearms estate plan. Estate planning goes far beyond just figuring out who gets your stuff when you’re dead.
What do I want in an estate plan?
- I want control over my property when I am alive and well.
- I want to provide for myself and my loved ones if I become disabled.
- When I die I want to give what I have: To whom I want, the way I want, when I want.
- I want to maintain my privacy and minimize professional fees, court costs and taxes.
You can do all of these things with a purpose built gun trust. Without one, these goals may simply not be achievable.
A trust helps gun owners when they’re alive and well. Right now federal law restricts the transfer of NFA firearms between individuals. An individual owner doesn’t have full control over their property because they can’t give an NFA firearm to whoever they want whenever they want. The individual owner of an NFA firearm literally can’t allow any other person to possess that NFA firearm outside of the owner’s presence without a $200 transfer tax and waiting months for the ATF to approve the transfer. If the individual owner fails to comply they run the risk of being prosecuted for a felony that carries a 10 year prison sentence. A purpose built gun trust can restore full control over their property to an NFA firearm owner. NFA firearms held by a trust can be legally possessed by any trustee of the trust. They still need to be careful though. There are federal restrictions who can possess NFA firearms and on interstate travel with certain NFA firearms. There is also a patchwork of state and local restrictions that further restrict possession, travel, transfer and use of NFA firearms. A purpose built gun trust can identify these issues and instruct trustees how to avoid violating the law.
State law doesn’t affect only NFA firearms. Individual States are increasingly passing universal background check laws that criminalize the transfer of firearms unless a background check is completed first. This includes the lending of firearms. It is getting more and more difficult to share any rifle, pistol or shotgun. Depending on how a state’s laws are written, a purpose built gun trust may help get around those restrictions as well, but this requires a good attorney who knows the state and local laws to do this properly. The trust form from a gun shop or the internet is probably not going to be much help in this area. It is far better to seek out the counsel of a trusted local attorney. You can find one at www.gunlawcommunity.com .
Using trustees to convey possession rights doesn’t just protect the Settlor’s gun buddies. Making family, and loved ones trustees of the gun trust protects them from being prosecuted for being in possession of NFA firearms that are not registered to them.
Now, consider what may happen when a gun owner becomes incapacitated. People have strokes or get in car accidents every day. When an individual gun owner is incapacitated their family and loved ones are left to deal with the incapacitated owner’s guns. Can they even access them without committing a felony? Do they know how to transfer them so that they don’t accidentally commit a felony? Will they follow the wishes of the gun owner with regard to his or her firearms while the owner is incapacitated, or will they dispose of them at the first opportunity? Do they have the legal authority to sell the owner’s guns to help support the family, or pay for the owner’s medical care? It’s likely that they would need to have a conservator or guardian appointed to transfer the non-NFA firearms and for NFA firearms anyone acting on behalf of the registered owner will have to demonstrate that they have the power to do so. A Power of Attorney may give a third party the power to deal with the guns, but it doesn’t provide any instructions on how to use that power. A purpose built gun trust is the far superior option. It can give a Successor Trustee ( a person the Settlor has selected ahead of time ) the power to administer the trust firearms for the settlors benefit or the benefit of the settlor’s dependents. The trust not only provides the power to the Successor Trustee, it will also contain guidance about how to exercise that power, so that the Settlor’s guns are sold only as a last resort when all other assets are exhausted. The bills don’t stop just because the owner is incapacitated. While the owner may not want the guns sold, selling the guns is probably preferable to his or her loved ones being put out on the street. A gun trust can also direct the successor trustee to allow the other beneficiaries to use the trust firearms while the settlor is incapacitated.
Next, consider the consequences if the gun-owner ever becomes a prohibited person. What happens if they can suddenly no longer legally possess firearms? What if they are arrested and need to satisfy a bail condition that they not possess firearms in order to be released? As an individual this presents a number of problems. If state law requires a background check before transferring non-NFA firearms, how do you legally get the guns to someone who will hold them for you? Is this even possible to do without breaking state law? What about the expense of all those transfer fees? NFA firearms present an even tougher logistical problem. NFA firearms can’t legally be transferred to anyone other than the registered owner until the ATF approves the Form 4. Current wait time for a Form 4 approval is about 5 months. That’s a long time to sit in jail waiting for a Form 4 to be approved. The firearms could always be surrendered to law enforcement, but getting them back even is likely going to be a challenge, if you beat the charge. A purpose built gun trust can help you get past all of these problems by allowing another trustee to store the firearms somewhere that you don’t have access. You resign as trustee until your legal troubles are resolved. As the Settlor you still maintain control over how the trustee disposes of the firearms, you just can’t possess them. All of this is subject to the state and local regulations and getting it run past the DA and the judge, but a trust at least affords the legal mechanism to do so, and to do it quickly and at minimal cost.
A trust provides advantages at death by maintaining the settlor’s privacy, making sure the settlor’s wishes are carried out and providing guidance so the settlor’s loved ones can carry out their wishes. Probate administration is usually a more expensive, lengthy and less private method of passing property after death than is trust administration. There are court costs and almost certainly going to be attorney fees associated with filing a probate case. The records of the probate court are public to some degree, depending on the laws in your state. This means that control over who sees the records of the property in an estate, including firearms, is given up to some degree and they can be seen by third parties such as your creditors, your neighbors or anybody else who cares to look. ( Again this varies from state to state. ) If you leave your firearms to a minor without a trust, the minor will not be able to legally possess them, so a court-appointed and supervised guardian or custodian will likely be needed. This is expensive, time consuming and subject to court review. It is possible that the guardian/custodian will decide to sell the guns and use the proceeds for the minor’s benefit so that the guns never make it to the minor. Using a successor trustee is a much better way to hold the firearms on behalf of a minor beneficiary. Using a successor trustee avoids guardianship / custodianship and the associated cost, gives the settlor control over who will do the job, how they will do the job, and the trust keeps the whole thing private.
A common sentiment heard among those who do not have an estate plan is that they don’t care who gets their stuff when they’re dead because they’re dead. This is shortsighted thinking. Not leaving clear instructions for the passage of property sets up conflicts over that property. There are countless numbers of families who no longer speak to each other because of a fight over who gets what after a family member dies. When there are guns in an estate it adds a whole new dimension of complications. There are rules for properly distributing real estate, investments, and personal property. If a mistake is made with these types of property people don’t usually go to jail. It’s typically just a question of money and time to fix it. Not so with firearms. If a firearm is distributed to a prohibited person, or if the distribution is not in strict compliance with the patchwork of federal, state, and local law, there is potential criminal liability for both the person who distributed the firearm and the person who received it. Even the people who don’t care who gets their stuff when they’re dead, probably don’t want to have their family facing criminal prosecution because a family member made a mistake in distributing a firearm. Here again a trust offers significant advantages over probate. The settlor of a gun trust can pick a successor trustee who has knowledge of guns and the legal restrictions on their transfer. The trust can provide specific instructions about how to transfer the firearms properly. All of this reduces the chances that a mistake that carries criminal consequences isn’t made with the distribution of firearms from an estate.
The above only scratches the surface of what a gun trust can do. A gun trust may be used to avoid or delay confiscation if a ban on the transfer of firearms is adopted at the state or local level. If the gunowner has no family to leave firearms to, there are a number of charitable gun orgs that would be happy to take a distribution and use it for gun safety training, building ranges, etc. Spouse hate firearms? Use the gun collection to create a charitable gift annuity to a charitable gun organization. The spouse gets an income stream and the guns go to someone who will appreciate them. A gun trust can also serve as a vehicle to pass on not just your property but also your values. Rather than distribute firearms outright at death, distribute them to a dynasty trust that can last for generations. Fund the trust with life insurance or a retirement account and you’ve got a trust that not only holds firearms for a family armory that will last for generations, but it will also have the funds to maintain the firearms, provide financial incentives for descendants not yet born to take up hunting, shooting sports, carry permits, safety training, and also pay the costs of those activities. In short, a gun trust was and remains a powerful tool for every gun owner.