How to Manage Guns in the Estate Planning Process

As you embark on the estate planning process, it’s easy to focus exclusively on big assets such as real estate, retirement assets, investment accounts and life insurance. It’s just as easy to overlook the importance of personal property planning. This is a mistake, as personal items can often be worth far more than what can be measured in dollars and cents.

Therefore, we encourage all customers to spend time planning personal possessions, but some items require special attention. Firearms are unique in this regard; firearms are the only personal property that carries an inherent risk of legal peril, including potential criminal liability, so careful and deliberate planning is warranted.

Roles of the personal representative

Your personal representative or successor trustee is the person you appoint to assume a fiduciary role to administer your estate according to your instructions. A seemingly harmless transfer of your favorite Remington 870 shotgun to your nephew John can lead to serious legal issues if nephew John turns out to be a “prohibited person”. The Gun Control Act 1968 prohibited certain categories of persons from sending, transporting, receiving or possessing firearms or ammunition. Among these categories are criminals, illicit drug users or people with mental illnesses, dishonorable dismissals or convictions for domestic violence. Unless your trustee has intimate knowledge of what is going on in his nephew John’s life, a simple transfer of possession of the shotgun can create serious legal problems for both, as the transfer and receipt constitute criminal behavior.

Geography questions

Another potential pitfall your trustee faces is simple geography. The Gun Control Act of 1968 restricted the movement of firearms between states. Your trustee must use the services of a federal firearms license holder to facilitate the transfer of the shotgun if nephew John lives in another state. Add to that the fact that the United States has become a patchwork of extremely varied gun laws and gun transfers become even more perilous.

What is perfectly legal in one state may be completely illegal in another. So even though Nephew John has an impeccable record and is not a “prohibited person”, possession of an AR-15, while legal in Wisconsin and Wyoming, is a potential crime in California or New York. York.

Changing laws

Changes over time also have the potential to work against the trustee and future owner. What’s legal today might be illegal tomorrow, and this process rarely works in reverse. A device known as a “stock bump” is a good example. The shock stock is a simple device made mostly of plastic that allows the user of an AR-15 style firearm to fire faster. The device was used primarily as a novelty but, due to its inherently negative impact on accuracy and the increased cost of ammunition, it never gained a place in the collections of most enthusiasts. of firearms. Then, in 2017, a bump stock was used in a mass shooting event in Las Vegas and the ATF decided to make the device illegal. This ban included the ban on rarely used possession, meaning there was no “grandfathering” for devices owned before the ban was enacted. The owners were instructed to return or destroy their existing hump stock under threat of felony prosecution. If the trustee is not an “armed person, they may have no idea that the harmless-looking piece of plastic is a crime waiting to happen.

The prevalence and ease of online shopping and the modular and customizable nature of gun platforms are nil, as the AR-15 has also impacted the risks associated with the transfer of guns. A perfectly legal AR pistol can become a highly restricted weapon under the National Firearms Act of 1934 by adding a simple plastic vertical grip that can be purchased online and delivered to your door.

So… what is the answer?

Fortunately, the risks and pitfalls introduced by the unique nature of firearms can easily be resolved with careful planning and thorough instruction. For special items such as properly registered machine guns, suppressors, short barrel carbines and short barrel shotguns, we have long used a tool known as the gun trust to protect and plan. Items of this type can often be of extraordinary value. A registered M-16, for example, can be valued at over $25,000, so care must be taken to preserve that value. The gun trust is the perfect platform to preserve the value and safety of your loved ones.

More recently, the use of gun trusts has expanded to collectible firearms in an effort to preserve use and access for future generations and to serve as a safeguard against potential changes in the law that make future management uncertain.

In the end, the advice is clear: make the effort to plan your gun collection carefully, because the risks are simply too high to ignore.

© 2022 Davis|Kuelthau, sc All rights reservedNational Law Review, Volume XII, Number 130

Louisa R. Loomis