Chipman Mazzucco Emerson LLC

Guns require careful handling in estate planning

If you own guns, you already know that the Second Amendment to the United States Constitution guarantees your right to own them. However, you must still comply with numerous state and federal laws regarding their ownership.

Understanding this, you may wonder how to pass on your weapons upon your death or what happens to them if you become incapacitated since the protections you enjoy for your firearms often only extend to you, especially for certain ones.

Enter the gun trust

You may already know that certain weapons identified in the National Firearms Act (NFA) Title II of the Gun Control Act of 1968, such as a short-barreled shotgun, a fully automatic machine gun and a suppressor, belong in a gun trust. The government tightly controls ownership of these weapons. In fact, if you outright own a suppressor and allow someone else to fire a round or two through it, you and the other party committed a felony.

A gun trust actually owns these weapons, so any trustee may legally use them. All trustees must go through the background check and other legal requirements in order to use or transfer the weapons contained therein, and beneficiaries must do the same. In fact, you may find that putting all of your weapons into the trust works better for you and your heirs. Most people make their trusts revocable in order to make changes during their lifetimes.

What happens upon death

When you pass away, the trustee or trustees have the freedom to dispose of the firearms in accordance with the terms of the trust. They may also be sold more easily if needed. Perhaps one of the biggest advantages to your trust owning your weapons is privacy. Probate requires inventories that the executor must file with the court. No one else needs to know your business, what you owned at death or who will receive your assets in the final distribution.

Upon your death, someone will need to take possession of your firearms. That person could run into legal trouble by doing so without a gun trust, especially if you own any Title II weapons.

What happens upon incapacitation

Another consideration is what happens to your weapons if you suffer an illness or injury that makes you unable to make decisions for yourself. You may already have powers of attorney in place for your finances, health and other property, but your weapons are a unique case. During your incapacitation, you cannot legally own a weapon. Someone will need to take possession, and that person could unwittingly violate the law by doing so.

If the gun trust owns the weapons, your successor trustee, who has already passed the required background and other checks, can step in and take possession of them without worry.

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