Passing down your Firearms

by MichelleR on March 5, 2012

The Gift of a Felony ; or Will your Trustee go to Jail

by Rich Dayton

(FPA PLANNER MARCH 2012, PAGE 4.)

Will your clients trustee go to jail for giving mom or dad’s guns to one of their brothers or sisters? Have you failed in your duty to your client if you don’t discuss firearms and planning for their transfer? What does a successor trustee or power of attorney agent or conservator do when they find out their principal owns firearms? There are approximately 233 million guns in private hands across the country; it is possible your clients may have one or more of them.

Yes, a trustee can go to jail for an improper transfer of a firearm. Yes, I think we have failed our clients if we don’t discuss the issue. Finally the agent needs to find out the law on firearms before taking any action other than to secure them, or they may find themselves in trouble.

Firearms are special assets for many of our clients. No matter what we may think about firearms it is our duty to insist our clients protect themselves and their appointed agents if we accept working with the client. There are a very large number of laws affecting transfer of a firearm. Normal revocable trusts contain language that is inconsistent with the requirements of the National Firearms Act, Title II of the Gun control Act of 1968. Jail terms of up to 10 years in federal prison and fines of $250,000 can apply.

Firearms and related devices includes handguns, rifles, silencers, ammunition, shotguns, zip guns, “camouflaging firearm container”, metal knuckles, leaded cane, and of course machine guns, and other explosives. The list is very extensive. So dad has died and his trustee is supposed to transfer dad’s gun collection to his son. One problem, the son has been convicted of a felony; if the transfer takes place the Trustee has committed a crime. So the son never committed a felony but has been convicted of a misdemeanor from a bar fight 20 years ago. Again, the son is prohibited from owning a gun. How is the trustee going to be sure that the son is telling the truth about convictions? My recommendation is to have the son provide proof of eligibility. The application form and instructions to request a personal fire arms eligibility check is on the Department of Justice (DOJ) Bureau of Fire arms website at www.oag.ca.gov/firearms/forms.

It is unlawful for a person who is not a licensed firearms dealer, to sell, loan, or otherwise transfer a firearm to a non-licensed person unless the sale, loan, or transfer is completed through a licensed firearms dealer. This does not apply to a surviving spouse, transfer between spouses, and an executor or administrator of an estateā€¦.however concealable firearms obtained by these means must be reported to the DOJ.

Individuals who obtain firearms through intestate succession or by bequest, sales or transfers between” immediate family” members (e.g. parent and child, and grandparent and grandchild) must obtain a Handgun Safety Certificate. The acquisition of a handgun in this manner must be reported within 30 days to the DOJ. Forms can be obtained at www.oag.ca.gov/sites/all/files/pdfs/fire
arms/forms/oplaw.pdf.

How can you help your clients? First ask about any firearms in the estate. If they exist, find out what special planning they have done. If your clients have not done any planning for their collections then at a minimum refer them to the

California handbook located at: www.oag.ca.gov/sites/all/files/pdfs/firearms/forms/Cfl2007.pdf

If they would like to learn more on the subject refer them to an attorney trained on Gun Trusts. Gun Trusts have been around for several years. They are becoming more popular due to the increasing complexity of handling firearms.

For more information on how to set up a Gun Trust and or assist your clients with this topic contact Rich Dayton at 408-437-7570.

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