Florida has a growing number of lawful gun owners. These firearms may include antiques, rifles for hunting, and handguns for personal protection. While these owners may be careful to ensure they have the correct registration, license and storage during their lifetime, their firearms raise questions when they die. When acting as the Personal Representative (PR) for that person’s estate during probate administration, then it is up to the said PR to ensure these items are handled carefully and within the law.
The following is a general overview of the subject. Specific cases should be discussed with an Estate Planning Attorney experienced with the state & federal laws regarding firearms.
A Personal Representative (in some states-Executor) in charge of a decedent’s estate may not be able to simply give a beneficiary a firearm as stated in the deceased’s Last Will & Testament. There are situations in which the heir’s or beneficiary’s possession of the gun may be illegal, e.g., if they are a convicted felon. The same can be said for the Personal Representative’s (PR) possession of the firearms. The PR is not exempt from the law because they are acting on behalf of an estate. If the PR is not entitled to possess a gun, they should promptly contact an attorney about ensuring the firearms are stored in a lawful place during the probate process.
As a Personal Representative, carefully review the decedent’s estate planning documents, including whether they have a Gun Trust, and speak with a probate attorney experienced with Firearms law before doing anything with the decedent’s firearms. Numerous federal and state laws regulate the sale or transfer of firearms, making the gifting process complicated. If the PR transfers a gun improperly or to an unlawful owner, the said PR could violate the law. Also, if the decedent did not plan for how their guns were to be handled, the PR will need to know how to dispose of them.
If the weapon or an accessory is covered by the National firearms Act (NFA), then the PR must follow all federal rules regarding its transfer and ensure the proper taxes are paid on the transfer, if applicable. These are also known as Title II weapons and include machine guns, sawed-off shotguns, and other destructive devices like grenades. Common accessories like silencers are also regulated by the NFA.
All owners must properly register NFA weapons with the federal government. When an owner wishes to transfer a weapon to someone else, the transfer of registration must be approved. This scenario is true for a sale during the owner’s life or distributing it after death. As the PR, one will need to obtain the correct Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) form to ensure all rules are followed in applying for the transfer. One would also have to check the current status of the law to see if a chief law enforcement officer needs to sign off on an application to transfer registration.
This complicated procedure is why individuals often create Gun Trusts, which owns the firearms and enables multiple people to possess and use them. Additionally, firearms or guns held in trust can continue to be owned by the trust and possession can simply move to the beneficiary after the original possessor’s death. One would not have to go through the formal transfer procedure required by law or pay taxes on the transfer. If the decedent had a Gun Trust, contact an attorney experienced in this area about ensuring its proper administration and that the law is obeyed.
If the decedent owned a firearm not regulated by the NFA, then the transfer to a beneficiary will be easier. A PR should ensure that the beneficiary is at least 18 years old, has obtained any necessary license, and is not prohibited from owning firearms under the law. A PR should also ensure that the transfer is properly recorded. Florida does not require owners to register their firearms or obtain a license for certain handguns, rifles, or shotguns, therefore one may be able to transfer these to a beneficiary more easily.
The laws surrounding firearms are vast and complex.
A Florida Gun Trust is a revocable trust that owns certain firearms subject to federal regulation. The Gun Trust is an alternative to individual ownership of the firearm. All qualified Trustees may share the use and possession of the firearm. Privacy is achieved since the trust may add or remove Trustees who can use the firearm without public disclosure.
When using a Gun Trust, the firearm is owned by the trust itself, not an individual person. With a revocable gun trust, the names of the Trustees and beneficiaries can be changed during the grantor’s lifetime. A Gun Trust can also be called an NFA Trust, Class 3 Trust, Firearms Trust, or Title II Trust.
Generally, a Gun Trust allows multiple qualified users to share use of a Title II firearm. Gun trusts make it easier to avoid criminal liability in owning, sharing, and using a Title II gun; and upon the death or incapacity of the Trust grantor, a Florida Gun Trust allows private inheritance of the gun without probate or potential criminal liability.
The National Firearms Act (NFA) regulates the possession and use of firearms. Title I of the Act pertains to ordinary pistols, rifles, and revolvers. Most firearms in the U.S. are Title I firearms.
Florida law allows ownership of Title I firearms. The NFA does not require reporting the ownership or transfer of Title I firearms to the federal government.
Title II firearms include more advanced weapons, such as machine guns, silencers, suppressors, short barrel shotguns, and other destructive devices (Molotov cocktails, bazookas, etc.). Federal and state laws impose significant regulation of Title II firearms, and transferring these weapons requires filing documents with the government.
The federal government changed the rules for transferring Title II firearms in 2016. An individual transferring a Title II firearm must file an ATF Form 4 with the government and pay a $200 transfer fee. Form 4 includes a photograph of the applicant and FBI fingerprint cards. Notice of the application must be given to the chief law enforcement official (CLEO) in the county where the applicant resides.
Again, Title II firearms may not be owned by “prohibited persons.” A prohibited person includes any individual who has been convicted of a crime punishable by one year or longer, individuals diagnosed with a mental defect, an undocumented immigrant, a person convicted of domestic violence, or a person who uses marijuana (despite the legality of marijuana in a number of states). This rule applies to individuals and to Trustees of a Trust.
Federal law makes it illegal for anyone other than a registered owner who is not a prohibited person to have access to or possess a Title II firearm. Violation of the law does not require unauthorized use or possession, and mere dominion and control over the firearm by an unauthorized person is a felony. Violation of this rule is punishable by up to a 10-year prison term and $250,000 in fines.
Consequently, without a Gun Trust, an individual Title II gun owner who shares their firearm with a friend or family member who is not a registered owner of the firearm or who themselves are a prohibited person risks criminal prosecution.
It is important to note that it may not matter for criminal liability purposes if an unauthorized person did not intend to possess or use a Title II firearm.
A Florida Gun Trust may legally purchase and own a Title II firearm. An individual party to a Trust who has the authority to manage the Trust’s firearms is referred to under federal law as the “responsible person.” Typically, the Settlor or Grantor (creator of said Trust) and Trustees are the responsible persons. A Gun Trust provides quite a few benefits over individual ownership of Title II firearms as follows:
- Sharing the Use of Firearms. Multiple individuals may not co-own or share a Title II weapon. Multiple Trustees of a Gun Trust, however, may share the same weapon if the Trustees are not prohibited persons. Title II firearms may be used by any qualified Trustee of a trust. A Grantor may add or remove Trustees over time. All Trustees must not be prohibited persons, and Trustees cannot transfer firearm possession out of the trust without complying with applicable state and federal regulations.
- Avoiding Criminal Liability. In the case of individual firearm ownership, the mere access to the firearm by a friend or family member may be a felony. Including the same friends or family members in the trust avoids criminal liability traps.
- Privacy. A Florida Gun Trust is a private document. The trusts are not registered with the state, and the general public cannot access the trust agreement online. Upon the death of the Trust Grantor, the Gun Trust will not be filed or recorded.
- Control After Death or Incapacity. In the case of individual firearm ownership, the death of the registered owner may cause the firearm to be an asset in a public probate proceeding. Probate administration may result in the transfer of the Class II firearm to a minor, a prohibited person, or other unauthorized owner. Such transfer could result in government confiscation or a criminal violation of the NFA. On the other hand, if the Grantor of a Gun Trust is incapacitated or dies, the firearm remains a trust asset so that no transfer of title is required. Trust firearms are not involved in the decedent’s probate proceedings. The NFA does not consider the inheritance of a firearm by a trust beneficiary to be a regulated transfer. The successor beneficiaries of the trust do not have to file an ATF form, pay a transfer fee, or report to the local CLEO. The remaining Trustees, or beneficiaries added as Trustees after the Grantor’s death, may still legally use, and control the firearm.
While a Florida Gun Trust is also a revocable living trust, the Gun Trust has special provisions to comply with the NFA regulations. A properly drafted Gun Trust should include at least the following provisions:
- A Gun Trust should not leave firearms to just any individual. The Trust should leave weapons only to adult beneficiaries who may legally own the weapon in the beneficiary’s state of residence and who are not prohibited persons according to the NFA.
- The Trust document should define “prohibited persons” and ensure that successor or additional Trustees are not prohibited persons.
- The original Grantor and Trustee of the trust should consider that successors Trustees may not be knowledgeable about NFA rules. The Trust document should explain to a successor Trustee the guidelines for their exercise of discretion in the handling and conveyance of Title II Trust firearms.
- Arrangements should be made for termination of the Trust and the distribution to responsible and lawfully qualified successor beneficiaries.
- The power to amend or revoke the Trust must be restricted so that proposed amendments will not result in a violation of state or federal firearm laws.
- The Trust should explain the duties of the Trustee to repair and maintain firearms and give Trustees powers to store and use firearms.
- The Trust must include typical living trust provisions regarding property other than firearms, including cash, that the Settlor may contribute to the Trust or obtain from the sale of Trust firearms.
- Consider appointment of a Trust protector to, among other things, replace Trustees when appropriate, modify the Trust to comply with changing firearm laws, move the Trust to another jurisdiction, or resolve disputes among beneficiaries and Trustees without having to engage in formal mediation or litigation.
People cannot buy a firearm and then transfer the firearm to a Gun Trust without filing an ATF Form 4. The best practice is for the gun owner (the Trust Grantor/Settlor) to first create the Gun Trust Agreement. Next, the initial Trustee should open a Trust bank account, and the Grantor should contribute enough money to the Trust to purchase the firearm. Thereafter, the Trustee can purchase the firearm in the name of the said Trust.
The responsible person should then file an ATF Form 4 application. Each responsible person in the Trust Agreement (usually the Grantor and all Trustees) needs to complete his own ATF Form 23 as an individual.
A few internet websites sell allegedly standard Gun Trust forms cheaply. The customer merely fills in some blanks to generate forms to be submitted to the government. Saving money may not be the best choice when an innocent error or misunderstanding of website instructions could result in criminal liability and confiscation of the firearm.
As an example, a Gun Trust must comply with Florida Trust statutes. An online trust that does not meet all requirements of Florida Trust Law may be invalid. Some online trust forms do not limit possession of the trust’s firearms meaning that control and access may be inadvertently given to a prohibited person resulting in criminal liability. Also, the person using a standardized online form may pay for the firearm with his own personal funds rather than first opening a Trust checking account. This direct purchase would be improper and illegal.
Finally, the Florida Supreme Court has held that it is the unauthorized practice of law for a non-lawyer to draft a living trust. A Gun Trust is a specialized type of living trust. An internet site that drafts a Gun Trust for a Florida resident may be engaged in the unauthorized practice of law in Florida. If a Florida attorney sponsors it, then it may be a different story.
Florida law does not require Gun Trusts. However, without a Gun Trust, the use and access to Title II firearms are strictly regulated and restricted to the individual owner.
Finally, the National Firearms Act allows a Title II weapon to be owned by either an individual or another legal entity, including a Trust.
A Gun Trust may own any type of firearm, whether or not subject to NFA Title II rules. It may be recommended to have a separate Trust for Title II firearms so that a technical NFA violation causing a forfeiture would not affect Title I firearms, which may be owned individually or in a separate Trust.
If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI, in Miami Lakes, Florida.