What About My Guns? Gun Trust and Estate Planning
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But What About My Guns? Gun Trusts and Estate Planning

Sep 8, 2022 | Articles, Estate Planning, Trusts

By Mary Ellen Flynn, Esq.

If you own firearms, planning how they will be distributed appropriately upon death is essential.

You want to ensure that you are not breaking the law when transferring firearms ownership to a family member or friend. In some instances, you may need to create a gun trust.

For estate planning considerations, the reasons one would create a gun trust are similar to why one would make a living trust.

Suppose a person leaves their firearms to be disposed by their Will. In that case, their Personal Representative will have to go through probate, and the distributed property will become part of the public record. Gun trusts are privately administered at death and therefore do not become part of the public record.

In some instances, however, gun trusts are essential.

Gun trusts are generally used for transferring firearms classified under the National Firearms Act (NFA) Title II of the Gun Control Act of 1968. Title II weapons include machine guns, silencers, short-barreled rifles, short-barreled shotguns, destructive devices, and other weapons that are not rifles and shotguns. Title II weapons are highly regulated. Whenever Title II weapons are transferred, the new owner must go through a thorough background check and identification process with ATF and the Maryland State Police before taking possession of the firearm. They will have to file a Bureau of Alcohol, Tobacco, Firearms and Explosives’ NFA Responsible Person Questionnaire, pay the ATF registration fee ($200), and submit photographs and fingerprints for a background clearance. They will also have to file a Form 77-R with the Maryland State Police before taking possession of the firearm. Gun trusts allow for the orderly transfer of ownership of these firearms and have provisions that instruct the trustee on who to transfer the guns to in the event a transferee fails a background check or identification process with the federal or state authorities.

In addition, one can create a gun trust to allow for the use of Title II firearms by multiple people.

Generally, a Title II firearm can only be used by the person to whom it is registered and no one else – violation of this law is a felony! But with a gun trust, multiple parties can use the Title II firearm provided that each user is a co-trustee of the gun trust and goes through the same required background check and identification requirements through the federal and state authorities.

In addition, a gun trust would be helpful if there are members of your family who should not own a firearm. Maryland law disqualifies certain persons from possessing a firearm (regardless of what type of weapon they are under the NFA). A person may not own a firearm if the person:

  • Has been convicted of a disqualifying crime (crime of violence);
  • Has been convicted of a violation classified as a common law crime and received a term of imprisonment of more than two years;
  • Is a fugitive from justice
  • Is a habitual drunkard
  • Is addicted to a controlled dangerous substance or is a habitual user
  • Suffers from a mental disorder
  • Has been found incompetent to stand trial
  • Has been found not criminally responsible by reason of insanity
  • Has been Voluntarily Admitted for more than 30 consecutive days
  • Is under a guardianship
  • Has a civil protective order entered
  • Is under the age of 30 and as a juvenile committed a disqualifying crime, such as a felony or a crime of violence.
  • Is involuntarily admitted to a mental institution

A gun trust can explore and put into effect alternate dispositions in the event a beneficiary is disqualified from possessing the transferred firearm.

If you or a family member owns a firearm, whether one or an entire gun collection, that you would like to ensure falls into safe hands, I encourage you to call me today for a consultation to discuss your estate planning options.

Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The Firm practices family lawestate planning, and probate throughout Maryland and the District of Columbia, and represents individuals seeking disability benefits throughout the country. The Firm focuses on cases that impact the rights of everyone, and are there for clients when responsive legal help is most critical. The Firm has provided legal analysis on national and local television and radio, and their attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at andalmanflynn.com or call 301.563.6685.