Firearms require special consideration in an estate or revocable living trust administration, especially for a personal representative or trustee who does not own or have a general familiarity with firearms. This article is intended as a practical guide for the uninitiated.
For sake of brevity, subsequent references to executor include a personal representative and the trustee of a revocable living trust.
Step 1. Check and Secure
This is second nature to most firearm owners, but its importance cannot be understated.
Firearms should always be stored unloaded and in a different location from the ammunition, although guns kept by a decedent in the home for self defense may be loaded and stored in a closet or drawer, and many a person who caused an accidental discharge of a firearm later explained “I didn’t know it was loaded.”
Rather than assume that the deceased owner followed all of the rules of firearm safety, the executor should check all of the decedent’s firearms to make sure that they are unloaded and stored securely. If a gun safe or cabinet is not available, gun cases should be used for storage, and the firearms kept in a dry area with low humidity.
If the executor is not familiar with common firearm actions, he or she should be accompanied by someone who is.
Step 2. Identify, Inventory, and Value
Firearms generally fall into one of three categories under Federal law: Type I or Non-NFA (National Firearms Act), Type II or NFA, and antiques.
Philip Miller, Marquette 1987, is a partner with Husch Blackwell’s Private Wealth practice group in Waukesha County, where his practice includes estate, tax, and business succession planning, and estate and trust administration.
John Pernice is an experienced firearm appraiser who advises individuals on the purchase, sale, and shipping of firearms.
Type I accounts for the vast majority of firearms owned by the average hunter, target shooter, or other non-collector. These are not registered under Federal law, but may be required to be registered under state or local law.
Type II, or NFA firearms, generally include fully automatic firearms, short-barreled rifles and shotguns, and noise suppressors. These are registered with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and are documented by the possession of ATF Form 4. While most NFA firearms are likely already owned in a separate gun trust due to the evolution of the law, a 2016 change in ATF regulations has made it easier for individuals to own these types of firearms outright.
If an estate or revocable living trust holds NFA firearms, it is extremely important that they not be removed from the premises until the executor locates the Form 4. The Form 4 should accompany the NFA firearm at all times, as well as the personal representative’s domiciliary letters or a copy of the trust and proof of the trustee’s authority as trustee.
It is worth noting that, every now and then, one encounters unregistered NFA firearms – most often because the decedent made them himself, such as by making a regular shotgun a short-barrel shotgun by sawing off part of the barrel or by making a homemade suppressor. These are illegal and cannot be registered or possessed by anyone. The only legal option for the executor is to turn them in to local law enforcement or the ATF. An executor should consult legal counsel if unregistered NFA firearms are discovered as part of an estate or trust.
Antiques are defined as any firearm manufactured prior to 1899, replicas of the same if they cannot use modern or readily available ammunition, and muzzle loaders. The Federal law definition of a firearm specifically excludes antiques. By Federal definition, firearms also do not include pellet and BB guns which use compressed air rather than gunpowder to propel the ammunition (state law may differ).
History and Provenance
The greater the number or variety of firearms held by the decedent, the more likely it is that the decedent maintained a log, journal, or other records of their acquisition and history. The executor should look for these at the outset of the administration process.
Together with the executor’s own investigation, these records may suggest a history or provenance that increases the value of the firearm from a collector or historical perspective. This, in turn, might dictate a sale at auction or other special consideration for sale.
Even where firearms will be retained and distributed to the decedent’s beneficiaries, the preservation of these records can increase their appreciation and sentimental value in the hands of the beneficiaries.
There is a long-standing joke among men who own firearms that says “my biggest fear is that when I die my wife will sell all my guns for what I told her I paid for them.”
To avoid costly mistakes, appraisals should be obtained whenever firearms will be sold, donated, or distributed in a manner that requires an equalization of value between beneficiaries. This is especially important in cases where the firearms are obviously part of a collection. Copies of any documentation of history or provenance should be provided to the appraiser.
An experienced and independent appraiser should be selected where possible. Gun shops or individuals who have an interest in buying the decedent’s firearms may not have the expertise to recognize the historical or collector value of particular firearms, and have an obvious bias against providing a true fair market value.
Step 3. Sell or Distribute
Depending on the decedent’s instructions as expressed in the will, trust, or other separate writing, the executor will either distribute the decedent’s firearms to beneficiaries, or be charged with selling them and obtaining a fair value for the estate or trust.
If the decedent died intestate, or the governing instrument is silent with regard to firearms, the executor should check with the beneficiaries to see if any of them are interested in acquiring some or all of the decedent’s firearms.
The executor needs to be cognizant of two to four sets of laws governing the transfer of firearms:
the law of the jurisdiction in which the decedent resided (state and local),
the Gun Control Act of 1968,
the National Firearms Act of 1934, and
if the transferee is located in a different state than was the decedent, the laws of the jurisdiction in which the transferee is located (state and local).
Ownership or possession of NFA firearms cannot be transferred to another person until the firearm has been registered to that person with the ATF. This requires the submission of a new Form 4, the payment of a $200 stamp tax, the transferee’s submission of photo identification and fingerprints, and a background check.
The transfer of non-NFA firearms to a transferee in the same state as the decedent is generally subject only to the restriction that the recipient cannot be a “prohibited person” under Federal law. This includes convicted felons and persons convicted of a misdemeanor related to domestic violence, persons under age 18 with respect to rifles and shotguns, persons under age 21 with respect to handguns, noncitizens, persons adjudicated mentally defective, and users of controlled substances.
With respect to this last category, it should be noted that, while the recreational use of marijuana has been legalized in a number of individual states, it is still a controlled substance under Federal law and those who use it are prohibited persons under the Gun Control Act (18 U.S.C. §922(g)).
Background checks are not required for intrastate transfers of firearms, though they are available to any executor who wants to confirm that the transferee is not a prohibited person.
Interstate transfers of firearms, both NFA and non-NFA, must go through a Federal Firearms Licensee (FFL) on either the shipping or receiving end of the transaction, and on both ends of the transaction if the firearm is a handgun.
The United States Post Office will ship handguns and long guns subject to certain restrictions, but some private carriers will not, so the executor should check before attempting to ship any firearm interstate.
State and Local Law
Wisconsin law contains a list of prohibited persons that is largely similar to Federal law, but does not otherwise restrict the transfer of firearms. Wisconsin also has a preemption statute that prohibits local regulation from being any more restrictive than state law.
By contrast, a growing number of other states have state-level registration requirements and/or restrict the type of firearms that may legally be owned in that state. States that do not have preemption statutes may have cities, towns, or counties which also have restrictions with which the transferee, and possibly the transferor, need to comply.
An executor should seek the advice of legal counsel, an FFL, or someone experienced in shipping firearms before shipping them out of state.
With proper care and assistance as needed, an executor can safely and legally transfer ownership and possession of a decedent’s firearms to buyers and beneficiaries alike, and can preserve or maximize their value to the estate or trust beneficiaries.
This article was originally published on the State Bar of Wisconsin’s Real Property, Probate and Trust Law Blog. Visit the State Bar sections or the Real Property, Probate and Trust Law Section web pages to learn more about the benefits of section membership.