Recently, a few people have asked about gun trusts and privacy so I wanted to address firearms in estate planning. If you own firearms, including collectibles and heirlooms, you should consider whether you need a gun trust and the privacy that comes with it. In researching it and thinking it over, keep in mind that not all gun trusts are created equally. You need to analyze your need for one based on the firearms you currently own, your need for privacy, what you plan to own someday, and what rights/privileges you want with respect to your firearms.
As we talk about the need for a gun trust, we must separate Title II firearms and non-Title II firearms. Different regulations exist for the various types of firearms under the National Firearms Act (NFA). Title II firearms cannot be in a regular trust but need the specific provisions of the NFA firearms trust. On the other hand, with respect to non-NFA firearms, gun trusts offer more flexibility than a regular revocable living trust.
As you likely know, regular firearms in Florida are not registered. Therefore, there is no distinct sort of title that you may pass to another and no real need for probate. Rather, the guns are usually passed “across the table” to another. Of course, we are not sure what classification changes will be occur in the near-future which may make a gun trust still desirable to many.
Regardless of what options you choose, it is good practice to have the personal representative or trustee obtain a receipt for the transfer of the firearm to the new owner, using a description and serial number, if available.
The NFA Firearms Trust allows gun-owners, as trustees, to own firearms which require registration on a federal and/or state level without having to meet the same restrictive procedures as would an individual owner. A gun trust offers the ability to keep your NFA firearms separate from your other property. Plus, it allows you to maintain privacy of those who do not need to register due to state or federal law. Keep in mind that you will have stamp taxes to pay (possibility $200 per firearm) as well as ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives) reporting requirements.
We are able to offer our clients stand-alone “NFA Firearms Trusts” with the Certificate of Trust, Appointment of Co-Trustees, Instruction of the Distribution of Personal Property, a Bill of Sale and a Bank Account letter. A key factor with the NFA trust is that you not only are able to pass Title II firearms after death, but then you may also name a trustee who can use the firearms titled in the trust. This can be important, for instance, in a family when you want both spouses to be able to use the guns. This is not an issue with non-Title II firearms, of course.
With any trust, you should consider your liability. For instance, if you violate an NFA law, would you be subject to losing the guns within the trust? These discussions must occur on a case-by-case basis.
If you do not have NFA firearms, and have no plans to obtain any, you definitely will not need a trust that only deals with NFA Firearms. Indeed, many of the trusts online, or ones you can obtain for a couple hundred at a gun show, can only accept NFA firearms. That is, you cannot put non-NFA firearms in them. When you also have non-NFA items as well, you need to take the next step to consider what type of transfer documents suit you and your family best, be it a Last Will, regular Revocable Living Trust, or a “combo trust” that specifically holds NFA and non-NFA firearms.
Probate and Lack of Privacy
Guns are personal property and do not inherently need a trust. The main advantage to a trust is that, without one, the guns must be distributed via the public probate process. In Florida, the grantor of the trust can list, on a signed separate personal property memorandum, the firearm and specific beneficiary for the purposes of devising the firearms. However, with this method you will lose all privacy as the Last Will becomes a matter of public record during probate.
There is upkeep involved as well. The personal property memorandum would need to be updated in order to add or remove beneficiaries of the guns. For instance, if the intended beneficiaries predecease the gunowner, it is possible the guns could end up being left to minors or prohibited persons. Further, there is absolutely no provisions allowing the sharing of guns (i.e., to lend to a friend to use at a shooting range). That is because the personal property memorandum only deals with administration at the end of the trust period.
Revocable Living Trust
Another option is to use a general revocable trust to avoid the probate process. For instance, you may be able to do a general assignment of your guns to your revocable living trust or list them on your Schedule A or B to your trust. You will need to decide and analyze which is the best way to proceed based on your collection.
That being said, distributing NFA firearms via a general revocable living trust is not advisable as there are a number of cautions of which you must be aware. There are no statutory provisions in a Revocable Living Trust specifically relating to guns. The trust itself will not have the necessary definitions and provisions to account for the distribution of your firearms. Specific provisions are needed to handle firearms. The typical revocable living trust does not have the specific provisions to do things such as dispose of firearms, set forth who may properly receive firearms, and establish responsibilities when children inherit firearms.
More importantly, you may unwittingly subject your trustees or beneficiaries to felonies if your trust allows certain people to inherit or use your firearms without the necessary qualifications. You must be absolutely certain that the person you name to inherit your firearms is qualified to own them (e.g., old enough, not a former felon, no crimes that would preclude gun ownership, not having been adjudicated mentally defective, etc.). In short, you need to be extremely careful when adding guns to a general revocable living trust. As for non-NFA items, it is usually possible to distribute your guns through the trust, however, specific language should be added to account for firearms.
Combo Trust for NFA and non-NFA items
In some situations, it is advisable to obtain a stand-alone gun trust that may hold both NFA and non-NFA items, as well as ammunition. This trust bypasses your other estate planning document and avoids probate, and help to avoid “accidental felonies” by improper sharing. These specialized trusts allow you to designate co-trustees, successor trustees and death beneficiaries. They also provide flexibility to comply with new ATF rules regarding “responsible persons.” What’s more is that the trusts allow others to legally use your NFA/Title II firearms even when they’re not in your physical presence.
A gun trust allows you to separate your guns from the rest of your property. This way, you are permitted to have a more qualified trustee to administer the usage and disposition of the firearms, over your personal representative (named in a Last Will). If you do use a gun trust, it is advisable to change the Revocable Living Trust assignment to exclude guns held by the gun trust. This will avoid conflicting provisions with respect to the firearms.
If you own NFA firearms, you should obtain a specialized NFA Firearms Trust. For non-NFA firearms, if you would like to make certain that you bypass probate, you should make the consideration as to what you plan to do with your guns, who should have control or use, and to whom will you devise them. After that determination, you can weigh your privacy concerns with your use of the guns to decide the best course of action.
Lori Vella is an Estate Planning and Business Attorney. She works virtually throughout Florida and New York, but has her home office in Tampa, Florida. She is mom to a little boy which ignited the passion for helping other families. She and her son enjoy car rides, playgrounds and taking mini-adventures. They also have an organic garden that surprisingly yields vegetables. Lori considers herself well-versed in Seinfeld and welcomes any trivia!
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