Gun Trusts

What is a Gun Trust?

 

A “Gun Trust” is a revocable living trust intended to own firearms, ammunition and related accessories with the intention of distributing them to future generations upon death while preserving the principles often recited by supporters of the Second Amendment.  A Gun Trust has the benefit of avoiding probate and keeping the client’s inventory of firearms from being listed in government records (except those firearms required to be registered as National Firearm Act weapons and all handguns in Michigan are required to be registered).

 

A Gun Trust has significant additional benefits.  For example, it gives the Trustee clear rules consistent with state and federal laws on transferring a firearm, prohibitions on who can use and receive a firearm, and also instructions on ending the trust when appropriate.  It also protects family members from becoming “unintentional felons” when they are unwittingly “in possession” of a firearm either when the registered owner leaves the residence or is suddenly deceased.  For example, a gun owner may live at home alone with a son with a previous felony conviction, but if the gun owner leaves for the weekend then the son might be accidently guilty of a felony (felon in possession of a firearm) even if it is a handgun in a safe.  The same is true for a unsuspecting wife whose husband owns a firearm regulated by the National Firearms Act that could unintentionally break the law by suddenly being in possession of a Title II weapon upon the owner’s death.  A properly drafted Gun Trust can avoid these situations by ensuring the Trust holds legal title to the firearms.

 

What is a National Firearms Act Trust?

 

A National Firearms Act (NFA) Trust is an even more specialized revocable living trust intended to own Title II weapons listed under the National Firearms Act.  The types of weapons regulated under the act are codified in 26 U.S. Code § 5845(a) and include:

 

- A shotgun having a barrel or barrels of less than 18 inches in length (“sawed-off shotguns”);

 

- A weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;

 

- A rifle having a barrel or barrels of less than 16 inches in length;

 

- A weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;

 

- Weapons in 26 U.S. Code § 5845(e) such as those capable of being concealed on the person from which a shot cam be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. (“homemade weapons”)

 

- Machine guns (any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger).

 

- Any silencer;

 

- A destructive device, as defined by 26 U.S. Code § 5845(f) .

 

A NFA Trust can also simplify the process of purchasing Title II weapons, depending on the applicable state laws in your jurisdiction.  For example, an individual attempting to purchase a Title II weapon must first submit the ATF Form signed by the chief law enforcement officer in his or her jurisdiction, pay the transfer tax, submit a photograph and fingerprints, and pass a background check.  For some people, getting the chief law enforcement officer to approve the ATF form is a significant barrier.  In Monroe County, Michigan, the chief law enforcement officer is the prosecuting attorney.

 

For a NFA Trust, a chief law enforcement officer sign off is not required under current law which may overcome this barrier.  In addition, the NFA Trust avoids the “unintentional felony” of someone being in possession of a Title II weapon other than the owner if, for example, the owner left the residence or passed away.

 

A valid NFA Trust will provide notice to the Trustee on who is a “prohibited person” for the purposes of being either a trustee or beneficiary, what constitutes a felony for unauthorized persons coming in possession of trust assets, what is a Title II weapon, how and when (or not) a beneficiary should receive and use a firearm from the trust, or when the trust should end.  It should also give the Trustee guidance as to state and federal laws related to the use and transfer of weapons in the NFA Trust.

 

Who is a “Prohibited Person”?

 

The Gun Control Act of 1968 makes it illegal for “prohibited persons” to possess firearms and it is further illegal for an owner or trustee to transfer a firearm knowingly (or should have reasonable cause to know) to a “prohibited person”.  A “prohibited person” includes:

 

- Any person under indictment or convicted in any court of a crime punishable by imprisonment for a term exceeding one year (this includes any felony or high court misdemeanor in Michigan, and this is in regards to maximum possible sentence exceeding one year and NOT the actual sentence)

 

- Any person who is a fugitive from justice

 

- Any person who is unlawfully using of or addicted to a controlled substance (it should be noted that the federal government does not recognize Michigan’s medical marijuana card law)

 

- Any person who has been involuntarily committed to any mental institution by a court or has been found by a court to have a mental illness or deficiency.

 

- Any person who is unlawfully residing or working in the United States

 

- Any person dishonorably discharged from the military

 

- Any person who renounced U.S. citizenship

 

- Any person who is subject to a personal protection order or restraining order against stalking a domestic partner or child of a domestic partner

 

- Any person convicted of the misdemeanor crime of domestic violence

 

Is a Gun Trust right for me?

 

Any person who owns firearms can benefit from a gun trust to ensure that they have the most complete estate plan possible.  It may be appropriate depending on the client’s circumstances to have a separate revocable living trust for all of their assets and a separate gun trusts just for firearms and related accessories.  It will provide protection for your family, your intended beneficiaries and your firearms to have a gun trust in place to avoid the potential “unintentional felony” or even the destruction of the firearms by law enforcement that fall outside the scope of state and federal law.