Using a Gun Trust to Pass on Firearms

This specialized trust can help executors avoid violating criminal gun laws.

Many gun owners have been hearing a lot about the benefits of “gun trusts,” which are specifically designed to hold ownership of firearms. Usually, these trusts are used for firearms that are subject to strict federal and state regulations, but they may include other kinds of weapons as well. Gun trusts can make it easier to handle firearms after the owner’s death—and may prevent surviving family members from inadvertently violating the law.

Types of Weapons Held in Trust

Commonly, gun trusts are used for weapons that are regulated by two federal laws: the National Firearms Act of 1934 (NFA) and a revision of that law, Title II of the Gun Control Act of 1968.   These weapons are often called NFA or Title II firearms. NFA weapons include machine guns, silencers, short-barreled rifles, and short-barreled shotguns (including sawed-off shotguns), grenades, and others.

NFA weapons must have a serial number and be registered with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, commonly called the ATF or BATF. (If such a weapon isn’t already registered, you cannot register it; it is illegal to own.) They can be possessed and used only by the registered owner.   To transfer a registered firearm, the owner must get ATF approval and pay a $200 tax ($5 for some items).

Other federal laws also affect NFA weapons. For example, since 1986 it has been illegal to manufacture machine guns, and only those manufactured before that date may be legally purchased. (Firearm Owners Protection Act.) State laws may further restrict NFA firearms as well.

Benefits of a Gun Trust

A gun trust can avoid some of the federal transfer requirements and accomplish other goals as well:

Allow more than one person to possess and use the weapons held in trust. If you name more than one person as trustee, each trustee will have the right to possess or use the trust firearms.  

Keep the gun in the trust even after the current owner’s death, avoiding the usual transfer requirements. If you create a trust and transfer firearms to it, you can arrange for the trust to stay in existence even after your death. The trustees and beneficiaries of the trust would have whatever rights you grant them in the terms of the trust. Because the firearm stays in the trust at your death, the transfer procedure is avoided. That means your inheritors don’t have to pay $200 transfer tax, file an ATF transfer form, receive permission from the local chief law enforcement officer (CLEO), and get fingerprinted and photographed.

Help the executor. The executor of your estate—the person who is responsible for gathering your assets, paying your debts, and distributing what’s left—may not be familiar with the rules about ownership and possession of NFA and other weapons. An executor could violate criminal laws by transferring a weapon without going through the proper procedure, taking or sending it to a state where it is prohibited, or giving it to a person who is legally prohibited from owning it. (The Gun Control Act makes it unlawful for certain persons to possess firearms. The law prohibits anyone who was ever convicted of a felony or of misdemeanor domestic violence, is prohibited by a restraining order from harassing an intimate partner, uses a controlled substance unlawfully, or is an illegal alien, to name just some of the restrictions.) When firearms are in a trust, the executor is not involved; the successor trustee is in charge. You can name a successor trustee who is well-versed in state and federal gun laws.

Avoid probate. Because the firearms are held by a trust, they do not need to go through probate at your death.

Avoid possible future restrictions on gun transfers. Although no such legislation has been proposed, some gun advocates fear that someday it will be illegal to leave certain firearms to inheritors or transfer them during life. They hope that holding the guns in trust will let them get around any limitations if they are enacted.

Making a Gun Trust

A gun trust is quite different from the common revocable living trust,  which is used, like a will, to leave your assets at death. A simple living trust allows survivors to transfer trust assets without going through probate court, which saves time and money after your death. It generally terminates shortly after your death, when the trust assets have been distributed to the people who inherit them. Many people make simple living trusts on their own, with the help of a good plain-English book or online service.

A gun trust, on the other hand, may have multiple trustees, be intended to last for more than one generation, and must take into account state and federal weapons laws. If you want to leave guns in trust, consult a lawyer who has lots of experience with the state and federal laws that govern who can legally use and possess weapons and how they must be transferred.  

Originally written by Mary Randolph, JD.