What Are Gun Trusts?
Gun trusts are legal vehicles for owning and transferring firearms. They are specially designed to protect gun owners and their loved ones by providing a framework for lawful ownership and transfer of firearms.
What Are the Legal Risks of Individual Gun Ownership?
To understand the benefits of gun trusts, one must first understand the legal risks involved in owning firearms as an individual. Firearms are subject to a complex web of federal, state, and local laws, violation of which—even unintentionally—can result in criminal liability. The primary sources of federal law regarding firearms are the Gun Control Act of 1968 (GCA) and the National Firearms Act (NFA). States and municipalities may also have their own firearm regulations.
- The Gun Control Act of 1968. The GCA criminalizes possession of any firearm or ammunition by “prohibited persons.” “Prohibited persons” include:
- Persons convicted of crimes punishable by imprisonment for more than one year (colloquially, “felons”);
- Fugitives from justice;
- Unlawful users of or persons addicted to controlled substances;
- Persons adjudicated as mental defectives or committed to mental institutions;
- Illegal aliens and aliens with nonimmigrant visas;
- Persons dishonorably discharged from the U.S. Armed Forces;
- Persons who have renounced U.S. citizenship;
- Persons subject to certain domestic protective orders and injunctions; and
- Persons convicted of domestic violence misdemeanors.
- It is a crime to transfer any firearm or ammunition to a person if the transferor knows or has reasonable cause to believe that the recipient is a prohibited person. The GCA also prohibits possession of handguns or handgun ammunition by minors. Violations of the GCA carry criminal penalties of imprisonment up to ten years or more in certain instances and fines up to $250,000.
- The National Firearms Act. In addition to the restrictions the GCA imposes, the NFA subjects certain categories of firearms to an additional layer of regulation. Conventional rifles, shotguns, and handguns are not subject to the NFA. The NFA regulates six major categories of firearms:
- Machine guns (fully automatic firearms—that is, guns that can fire more than once with a single pull of the trigger);
- Short-barreled rifles (barrel less than sixteen inches);
- Short-barreled shotguns (barrel less than eighteen inches);
- Suppressors and silencers;
- Destructive devices (which include bombs, rockets missiles, mines and certain large-bore firearms); and
- “Any other weapons” or “AOWs” (a category of exotic firearms such as cane guns and pen guns).
- A person who wishes to acquire an NFA firearm must first submit an application to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF or BATFE) and receive ATF approval of the transfer. The applicant must also pay a transfer tax (typically $200) unless the transfer is exempt. ATF maintains a database of all NFA firearms known as the National Firearms Registration and Transfer Record. Upon approval of a transfer by ATF, the firearm is registered to the transferee in the ATF database. Possession, receipt, or transfer of an NFA firearm by anyone other than the registered owner is a felony, even if done unintentionally, and is punishable by imprisonment up to ten years and fines up $250,000. Violation of the NFA also subjects the firearms involved to forfeiture.
- State and Local Laws. Each state has its own set of laws applicable to firearms, which may include licensing requirements, restrictions on possession within certain areas, and hunting regulations. Municipalities may also have ordinances relating to firearms. In Maine, although most local regulations regarding firearms are preempted by state law, local governments can and do regulate the discharge of firearms within their municipalities.
What Are the Benefits of Gun Trusts?
With this background in mind, the benefits of gun trusts come into focus. Gun trusts offer a number of advantages over individual ownership of firearms, particularly NFA firearms.
- Sharing Access to NFA Firearms. An NFA firearm owned by an individual may be possessed and used only by its registered owner. An individual can illegally “transfer” an NFA firearm by simply allowing another person—even a spouse or family member—to hold or shoot it. The consequences for violation of the NFA are severe, including felony criminal prosecution and forfeiture of the firearms. The person receiving the firearm could also be prosecuted for possessing an NFA firearm not registered to him or her.
- The legal concept of “constructive possession” is particularly troublesome. Under that doctrine, anyone with access to a firearm—for example, by having access to the location where the gun is stored or the combination to the safe in which it is kept—could be deemed to be in possession of it. Owners of NFA firearms must strictly limit access to the firearms by anyone other than the registered owner. For an individual owner, this means preventing access by any other person, including spouses and family members.
- Gun trusts protect owners and their families against these risks by allowing anyone appointed as a trustee—which will typically include the owner and his or her spouse—to have access to NFA firearms without unintentionally committing a felony
- Compliance and Continuity. Even if a particular gun owner is well-versed in the applicable gun laws, his or her loved ones may not be. When a gun owner dies or becomes incapacitated, family and friends who come into contact with the guns may be at risk of accidentally breaking the law.
- Gun trusts avoid this problem by providing a clear succession plan in such circumstances. Even if a trustee dies, becomes incapacitated, or ceases to act as trustee, the trust continues to exist and can continue under the control of one or more successor trustees. A well-drafted gun trust provides guidance to the trustees in navigating legal restrictions on ownership and transfer of firearms. The trust can be drafted to prevent the trustees from violating the law by, for example, allowing a “prohibited person” under the GCA to become a trustee or receive a distribution of firearms from the trust, or transferring NFA firearms without ATF approval.
- Legacy Planning. Gun trusts can also be an important part of a gun owner’s overall estate plan. Through the use of a gun trust, a gun collection can be separated from the owner’s other assets. This can be advantageous for a number of reasons. First, it allows the owner to avoid a public probate proceeding with respect to the firearms. Second, it allows an owner to make special provision for firearms viewed as family heirlooms so that they are not sold or transferred to beneficiaries who would not appreciate their significance or would simply not be interested in owning and preserving them.
Have Recent Changes to the NFA Transfer Rules Made Gun Trusts Obsolete?
Previously, one benefit of creating a gun trust was that trusts were treated differently than individuals in NFA firearm transfers. Changes to federal firearms regulations effective July 13, 2016, however, mostly eliminated the distinction between individuals and trusts with respect to NFA transfers. Under the new rules, all “responsible persons” for a trust— typically the trustees—must comply with the same fingerprint, photograph, and background check requirements as individuals. Both individuals and responsible persons of trusts must also notify their Chief Law Enforcement Officer (CLEO) of the transfer.
Despite these changes, gun trusts continue to provide the best framework for lawfully enjoying and sharing firearms during life, and passing them on upon death, without accidentally violating firearm laws. The new rules also create a special exemption that should make NFA applications easier and faster for trusts that make repeated applications.
How Is a Gun Trust Created? What Provisions Does a Typical Gun Trust Include?
A gun trust is a trust specially designed to hold title to firearms. A trust is a legal relationship in which an individual (the grantor or settlor) conveys legal title to property to another party (a trustee). The trustee agrees to administer the trust assets for the benefit of one or more beneficiaries, which may include the grantor. A trust can be established during a grantor’s lifetime (an “inter vivos” or “living” trust) or by will (a “testamentary” trust). A trust can be revocable, meaning that the grantor can terminate the trust at any time. Alternatively, a trust can be irrevocable, meaning that the grantor cannot terminate the trust.
Like any other trust, gun trusts must comply with the Maine Uniform Trust Code. Normally, the gun owner and his or her spouse will be grantors of the trust, as well as initial trustees. The trustees should include anyone the owner wishes to have access to the guns—these will typically be the “responsible persons” for purpose of the NFA. The trust must have at least one beneficiary. The same person cannot be both sole trustee and sole beneficiary.
The grantor will often wish to retain as much control over the trust and trust property as possible, and prohibit the sale of trust property unless specifically approved by the grantor. Most gun trusts are drafted to be revocable living trusts to allow the grantor to amend the trust, or, if necessary, revoke the trust and retake ownership of the firearms (which, for NFA firearms, the trust should permit only after approval by ATF). The tax considerations which might normally counsel against the grantor retaining such control over the trust assets are not usually applicable to gun trusts because they will typically never generate income
The trust should educate the trustees and other interested persons as to the applicable law, and prevent trustees from violating the law. For example, the trust should not allow any prohibited person under the GCA to become a trustee, and should require any trustee who becomes a prohibited person to immediately resign. If any beneficiary becomes a prohibited person, the trust should prohibit distribution of firearms to that person. In this situation, the trust will typically direct that the firearms be distributed to another beneficiary, or that the firearms be sold and the proceeds of the sale distributed to the beneficiary who is now a prohibited person. The trust should also repeatedly warn trustees of their legal responsibilities with respect to transfers of NFA firearms.
Firearms are subject to a bewildering array of legal restrictions. Well-drafted gun trusts serve as invaluable guides in navigating this legal maze, and help gun owners enjoy, share, and transfer firearms legally and in accordance with their wishes.
This article is intended to provide information of a general nature only. It does not provide or replace professional legal advice, and it does not establish an attorney-client relationship with the Maine Elder Law Firm or Rudman Winchell. Please consult an attorney for advice regarding your specific circumstances.