A gun trust is an important consideration for gun lovers and collectors who are thinking about their estate planning, because owning firearms presents a serious problem.
Because the law makes it difficult at best to pass on certain firearms.
Estate Planning and Firearms
In Florida, if you are not a minor, you don’t need a Florida license to purchase or own a Type I firearm. Federal law does not require that the ownership or transfer of a Type I firearm be reported. As a result, Type I firearms generally do not present estate planning problems.
What are Type I firearms?
- ordinary rifles
- revolvers, and
On the other hand, Type II firearms are weapons that are regulated by the National Firearms Act (NFA). Type II firearms do present Florida estate planning complexities.
By law, owners of Type II firearms must be registered and cannot be a “prohibited person.” Plus, it is illegal for anyone who is not the registered owner of a Type II firearm to have access to or possess such a weapon.
What are Type II firearms?
Type II firearms include:
- fully automatic firearms (e.g., machine guns)
- short barrel rifles
- short barrel shotguns, and
- other destructive devices (for example, Molotov cocktails, bazookas, etc.)
The laws regulating Type II firearms are very strict and violations of these laws can result in criminal charges.
The Law Regulating Type II Firearms
Enacted in 1934, the National Firearms Act (NFA) restricts the possession and use of certain weapons. In 1938, the NFA was amended by Title II of the Gun Control Act (GCA) to eliminate certain loopholes that existed in the 1934 law. The NFA now prohibits anyone other than a registered owner to have, possess, sell, or share a Title II weapon—making it virtually impossible to legally pass on your Type II firearms to your heirs.
The law was amended again in 2016 to allow Title II weapons to be transferred upon the filing of ATF Form 4 and the payment of a fee. However, the process is a long and difficult one, and can be fraught with potential pitfalls.
In addition to transfer restrictions, Title II weapons cannot be shared with “prohibited persons” or anyone who is not a “registered owner” of the weapon. So, for example, if you are a registered owner of a Title II weapon, you cannot allow someone else to use that weapon. Plus, the use of the weapon does not even need to be unauthorized to subject you to criminal penalties. The mere assertion of “dominion and control” over a firearm is a felony punishable by up to 10 years in jail and massive fines.
What, then, does this mean in practice?
It means that if you are a Florida gun owner, and you let your friend or family member shoot a few rounds with your Title II weapon—and they are not the registered owner of that weapon or they are a “prohibited person”, you are violating the law and could be subject to criminal charges.
It also means that you cannot just bequeath your guns to your friends or family in your Last Will and Testament (“Will”). Not only that, but it means that no one can maintain or safeguard your weapons for you if you become incapacitated.
Consider creating a Florida gun trust with the help of estate and probate lawyer, Samantha J. Fitzgerald.
Before you jump right into a gun trust, however, there are a number of things you should know about gun trusts.
Here are just 3 things you should know about Florida gun trusts:
- A Florida Gun Trust is a Revocable Living Trust
A Florida gun trust is a revocable living trust created and specifically designed to hold Type II weapons.
Like other revocable trusts, a gun trust is a legal document that creates a lawful entity (the “trust”) to hold and transfer property. In the case of a gun trust, of course, the property that the trust holds and/or transfers is Title II firearms. With a Florida gun trust, the trust owns the guns—not any single individual. Typically, the settlor of the trust (i.e., the person who makes the trust) and the trustee(s) (the person appointed to control the trust) are “responsible persons” under the federal law with authority to manage the trust’s firearms.
While gun trusts may be a viable option, make no mistake: they are complicated and must be set up properly.
- A Gun Trust Needs Specific Provisions
Gun trusts are not ordinary trusts.
A Florida gun trust must have special provisions that comply with the NFA regulations.
A properly drafted gun trust must include specific provisions particular to the handling and conveying of Title II trust firearms.
It is imperative that the trust provisions strictly comply with all federal laws and all of Florida’s trust statutes.
For example, a gun trust should leave weapons only to qualified adults and should include specific language defining “prohibited person.” The trust’s provisions should also clearly define the trustee’s duties to repair and maintain firearms. And it should have language giving the trustee the power to deal with unexpected events in the event of changes in the law.
These are merely some examples of provisions that should be included in a gun trust.
There are many more.
Getting this right isn’t easy and it isn’t something a nonlawyer should attempt. The best practice is to work with an experienced estate and probate lawyer if you need a gun trust.
- Create the Gun Trust First, then Buy the Gun.
Unless you have filed an ATF Form 4, you cannot legally transfer a gun to the gun trust.
If this is your situation, the best thing to do is to create the gun trust first, have the settlor contribute enough money for the purchase of the gun, and then have the trustee purchase the firearm in the name of the trust. Then, the responsible person should file the ATF Form 4 application.
There is far more to know about gun trusts; but the takeaway here is that gun trusts are specific types of trusts that must be carefully drafted—because an improperly drafted trust can expose you to criminal charges.
Need a Gun Trust?
At the Law Offices of Samantha J. Fitzgerald in Plantation, Florida, we are here to help you with all your estate planning, trust, and probate needs. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. Connect with us on Facebook or Instagram or call us at 954-580-3690.