One of the many questions that I am asked by clients and other attorneys is “Why is a gun trust necessary?” or “Why do I need a gun trust?” The exact reason why an individual needs a gun trust is unique to everyone. However, the simple answer is to protect your successor trustee from inadvertently breaking the law after your death or disability when transferring a firearm. There are other reasons why a gun trust is necessary, and here I will expand the top three reasons I have encountered in my practice that apply to most of the clients that I have worked with.
The top reason a gun trust is an essential part of an individual’s estate plan is because the individual is looking to a buy a Title II (Class 3 or NFA) firearm. These are highly regulated and only the person the tax stamp is issued to may possess the firearm. Therefore, whenever the individual leaves the firearm at home, which is shared with other people, a transfer in possession is occurring. This transfer is typically referred to a constructive possession, and the transfer is unauthorized. An unauthorized transfer of a Title II firearm is a felony under federal law. Constructive possession is when the firearm is safely stored in a gun safe that the remaining members of the house does not have the key or code to access, but the safe is not impenetrable, and your family members or household members could theoretically break into the safe and take actual possession of the firearm. A gun trust that names the individuals that live in the home would prevent this from becoming something to worry about.
Reason number two that a gun trust is essential is because a designated beneficiary is a prohibited person under 18 USC 922(g) and there is a desire to leave them a portion of the trust. The named prohibited person can be transferred a firearm by a successor trustee that does not know the federal or state laws concerning firearms. A gun trust can provide for the transfer of firearms to those legally able to own the firearms, and the prohibited person can be provided for within the revocable trust.
The third reason to create a gun trust is to educate successor trustee about the laws surrounding the transfer and ownership of firearm laws. While state laws may provide how to transfer firearms upon the death of an individual, those laws do not cover what a successor trustee needs to know about federal laws, transferring across state lines, what is illegal in other states, or how to transfer a Title II firearm. A gun trust provides the successor trustee with a base line of knowledge before a transfer can be made. In addition, contact information for the attorney that drafted the gun trust is available to the successor trustee to reach out with additional questions.
There are many other reasons why a gun trust is essential. I have found that outside of these top three reasons that the other reasons are unique to person ask for the gun trust. I have heard reasons that include creating a legacy of firearms, families members currently live where certain firearms to be transferred are considered illegal, I am the only firearm enthusiast and I do not want the firearms turned into the police, I want to create a legacy of firearms that I have collected, or my children are still members and they are my only beneficiaries.
You may be identifying with some of these reasons as you are reading this. If you own firearms, you need an estate plan to ensure that your loved ones know what to do with your firearms. If you need more information about gun trusts or how to create one, call (248) 230-2545 today to schedule a Pre-engagement Meeting with our team.