California boasts the strictest gun laws in the nation. Yet, it is not that unusual to find guns, old and new among the items we sort through when organizing the contents of an estate. Fiduciaries know that some individuals, with extensive gun collections, may have a gun trust. Gun trusts are used for any legal firearm, and may be used to protect and manage the guns in an estate, just as with other assets.
These are the definitions and distinctions of firearms:
- Firearm – Usually, California Penal Code Section 16520(a) defines a firearm as “any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.”
- Handgun – Under California Penal Code Section 16640, a “handgun” means any pistol, revolver, or firearm capable of being concealed upon a person.
- Antique Firearm – Antique is defined by California and Federal law as firearms and ammunition for those firearms manufactured prior to 1899.
- Curios and Relics – Under both federal and California law, a “curio or relic” firearm means a firearm that is of “special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons.” Since January of 2014, a California Certificate of Eligibility and a Federal Curio or Relics license are required prior to transfer of antiques, curios and relics and they must be registered with the California DOJ.
What Guns Can’t Be Transferred in California
Remember, there is a list of weapons that are just about impossible to transfer in California and includes assault weapons, sawed-off shotguns, some .50 BMG rifles. The smartest way to proceed is still by going through a Federal Firearms License (FFL). In some cases, a Dangerous Weapons Permit (DWP).
Even just being in possession of one of the highly restricted weapons, to take it out of a deceased’s home and deliver it to a safer place, can put you in line for a felony or misdemeanor. Executors and trustees need to know the myriad of laws governing firearms contained in an estate.
Who Can Be Left a Gun in a Trust?
While a gun trust may generally provide greater protection and operate under the same laws as an ordinary revocable or irrevocable trust, they are restricted by firearm legislation, too. They need to contain instructions on how to disqualify potential future trustees from access, if they fall under the definition of prohibited persons.
- Minors – are only allowed to possess or receive certain firearms in limited situations. California restricts the transfer and consequent possession of shotguns and rifles (long guns) to a minor – with the liability for such action placed on the transferor – however, parents and grandparents may transfer long guns to a minor.
- Restrictions resulting from criminal convictions – you will want to review both federal and state laws for the definition but they often overlap. Federally, it is illegal for anyone in the following categories to possess or receive a firearm:
- Convicted felon;
- Unlawful substance user or addict;
- Someone who has been committed to a mental institution or been adjudicated as a “mental defective;”
- Someone under a restraining order, judged to be a credible threat to a partner or a child’s safety;
- A person convicted of domestic violence.
The level of gun violence in this country is prompting new legislation. Take the time to review the full details of all the federal and state code restrictions regarding prohibited beneficiaries and other firearms’ handling regulations, on a periodic basis, before transferring firearms out of an estate.
How to Handle Firearms in an Estate
- Locate and identify each firearm in the estate. Identify any that could be listed as restricted
- Assess how the firearms are currently maintained (i.e. in a safe, a closet, etc.), advise the client of the liability exposure in keeping firearms in unsecured locations.
- Analyze the status of the proposed beneficiaries and the current individual in possession. Inform your fiduciary-client of the need to verify each beneficiary’s background (usually by way of FFL).
- Tell your fiduciary-client to contact any proposed beneficiaries to inform them of the bequests, and inform them of the requirement to use an FFL.