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How Can You Avoid Legal Problems When Inheriting a Gun?

April 20, 2023

Most people don’t realize that gun laws can cause significant legal problems when someone inherits a gun. When an owner of a licensed firearm passes away, it can be difficult to transfer ownership or possession of the registered firearms without violating the law. One option to make it easier is for the owner of the gun to create a gun trust during his or her lifetime. 

What Laws Apply to Firearms?

Typically, it is a felony to possess a firearm without a proper license or permit. However, federal and state laws vary in what types of firearms they regulate. Federal regulations control specific types of firearms but do not apply to shotguns and hunting rifles. The National Firearm Act (NFA) covers fully automatic weapons and suppressors and silencers. Handguns are usually regulated at the state level. However, most states don’t regulate “long guns,” such as shotguns and hunting rifles. Certain guns are considered collectible antique weapons and are not regulated by the federal or state government. 

It is important to always be aware of the regulations in your jurisdiction, and to stay informed as laws and regulations can be amended. Also be mindful when traveling that different states have different rules and regulations, and your permit or other authority or ability to possess a firearm may not be valid when you travel outside your jurisdiction. 

How Does a Gun Trust Work?

Generally, the purpose of a gun trust is to make ownership succession easier and eliminate the need to probate firearms. It also protects someone who inherited or the executor of a will from being charged with illegal possession. Weapons regulated by the NFA must be in an NFA trust. Other guns may be in a regular gun trust.

An NFA trust allows the transfer of NFA firearms to beneficiaries at the death of the “settlor” (the person who created the trust; usually, the gun owner) without the executor having to worry about possession of the guns during the estate administration process. 

To transfer an NFA firearm, the trustee of the gun trust must submit a Federal Firearms License application to the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF). The application must include a copy of the gun trust and the required information for every responsible person under the trust, including fingerprint card(s) and photograph(s) of each individual. ATF will run background checks and conduct interviews with the responsible persons as well.

This process is more time-consuming than transferring the gun to an individual purchaser. However, it offers several benefits. 

First, if drafted properly, the trust allows family or friends to legally possess the gun without the owner’s presence. Often, gun trusts are used with members of a gun club, so they can use each other’s guns. 

It can also prevent charges of illegal constructive possession if the firearm is potentially accessible by others in the household. For example, if one spouse owns guns and the other spouse has access, both of them can be in the gun trust to avoid problems.

In addition, a gun trust eliminates the need for a power of attorney if the owner becomes incapacitated. 

Finally, it allows a gun to be left to a minor who cannot legally own it until such time as it is permissible.

What Should You Do If You Own a Gun or Inherited One?

Because illegal possession is a serious crime, gun owners should consult a lawyer regarding their estate planning. Our attorneys can assist you in setting up a gun trust to avoid problems for your family or friends. If you inherited a gun or are handling the estate of a gun owner, we can advise you regarding compliance with gun laws. Contact us for a consultation today.

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