Guns can be transferred to intended beneficiaries through a special purpose trust. The special purpose Gun Trust will contain the applicable state and federal statutes governing firearm possession and ownership to protect not only the Successor Trustee but also the beneficiaries from liability for possessing a firearm which state or federal law would not otherwise permit. Although a Gun Trust can have the benefit of keeping firearms of special familial value within a family and outside of the probate court, the Successor Trustee must be knowledgeable or made aware of the applicable rules and regulations for possession as Trustee and then the transfer of the firearm to the intended beneficiary in order to avoid potential liability.
TRUSTEE OBLIGATION IN POSSESSION AND TRANSFER OF FIREARM
The Successor Trustee must first determine whether the firearm that is made part of the Trust is subject to the State and Federal Rules including but not limited to the California Penal Code; National Firearms Act (NFA); and Gun Control Act (GCA). Exempt from both federal and California law are “antique firearms” and “curio or relic” firearms.
Once the Successor Trustee has determined that the firearm is on the restricted firearms list under State or Federal law, the Successor Trustee must then determine whether he or she is eligible to possess the firearm. Even if possession is for a limited time and purpose the Successor Trustee must first confirm eligibility to possess and control the firearm. After the Successor Trustee establishes eligibility to possess, he or she must then take steps to determine whether the intended beneficiary is eligible to receive the gifted firearm. The least complicated manner of meeting these obligations is likely achieved through a Federal Firearms Licensee (“FFL”). A FFL will complete the appropriate background checks and help both the Successor Trustee and the intended beneficiary meet their obligations in making the transfer.
An even better alternative where a registration process and mandatory background check is not require is under the California Penal Code Section 27875 where an intra-family transfer is made; however, the intended beneficiary must meet all of the following requirements:
- Beneficiary is 18 years or older;
- Beneficiary obtains a firearm safety certificate before the transfer;
- The transfer is between members of the same immediate family, and immediate family is limited to the exchange between parent and child, or grandparent and grandchild;
- A report must be filed within 30 days of the transfer with the California Department of Justice detailing the transfer and firearm involved; and
- The transfer is “infrequent” as defined by the Penal Code (The Penal Code defines “infrequent” transfers as occasional and without regularity for long guns with no more than six (6) transfers per calendar year for handguns).
BENEFITS OF A GUN TRUST
A gun trust serves several purposes. Having this trust allows for a private means to pass firearms to your beneficiaries outside of the probate court system. This trust can be especially valuable for those who have large collections of firearms or very valuable firearms. A gun trust also makes it more convenient to purchase and hold more regulated firearms where certain guns that are governed by the National Firearms Act (NFA) require the purchaser to pay a $200 tax and obtain a tax stamp from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Having the Gun Trust provides the Settlor of the Trust to name a Trustee or Co-Trustee who can also legally possess these firearms. If a firearm owner acquires a tax stamp without a trust, lending or allowing possession of an NFA firearm to a friend or family member outside of the owner’s physical presence is a felony.
Guns are highly regulated and the transfer and exchange of them can subject one to significant liability, if you are an owner of a gun and wish to gift them to your loved ones, please give our office a call where our experienced attorneys can assist you in creating a comprehensive plan to fit your needs.
