What are the “Triggers” of a Gun Trust?

by J. Hunter Moreland, Associate Attorney

According to a 2021 survey, approximately 32% of Americans own some sort of firearm. While this number only includes firearms owned by individuals over the age of 18, the statistic increases to nearly 45% when all members of a household are included. That figure accounts for around 146 million Americans having access to a firearm in their household, which, while alarming to certain groups for a variety of reasons, for estate planning it raises some interesting considerations about how these firearms are being passed between generations.

We would never want to see an individual’s hunting weapons seized by the government just because they fall into a narrow category of firearms requiring additional ownership countermeasures. Similarly, we wouldn’t want to risk fines, or even imprisonment, if the wrong party gains an ownership interest in a firearm. Worst of all, we would never want Grandaddy’s rifle that has been regarded as a family heirloom to be taken away just because of his declining mental health. All of these scenarios, which play out on a daily basis for gun owners, can most likely be mitigated by the use of proper planning techniques, specifically a Gun Trust.

A Gun Trust is used primarily to allow a Trustee to manage “ownership interests” in one or more firearms for use by the beneficiaries. Think about this specialized kind of trust like giving your friends the code to your gun safe. Those friends could conceivably borrow a gun from that safe at any time and use it for any purpose, even after you have passed, as long as they have that code. This is in contrast to loaning a friend your rifle for a hunting trip you two are going on this weekend; their usage of the gun only lasts for that weekend and it is returned to you after you get back home.

All types of firearms can be held by a Gun Trust, but the most important weapons to consider placing into one are those covered by Title II of the National Firearms Act of 1934 (specifically the Gun Control Act of 1968). These include:

• short-barrel rifles,
• short-barrel shotguns,
• silencers and suppressors,
• machine guns,
• destructive devices (including explosives and large caliber weapons), and
• “any other weapon” which can be concealed and is capable of discharging a shot via an explosion.

(Note: This list does not include antique firearms (manufactured before 1898 or not using a rimfire or central fire ignition, or otherwise using a matchlock, flintlock, percussion cap, or similar ignition type) but will include any curios, relics, or unserviceable firearms which would otherwise qualify above.)

These particular firearms listed require special considerations when an “ownership interest” is transferred such that only eligible parties have that “ownership interest” in the firearm. This primarily comes into play in succession planning where the decedent qualified for the required permit, but a beneficiary of their estate might not, for instance, due to criminal record, substance abuse, poor mental health, or several other reasons. By establishing a Gun Trust and going through the necessary registration and transfer steps during your life, you can ensure all beneficiaries are qualified to receive the firearm once you have passed.

Another unfortunate situation where Gun Trusts could come into play is in planning for incapacity as we age. An incapacitated individual cannot own a firearm, but many times a family will not consider a gun owner’s declining mental health until it is too late to facilitate a legal transfer.  This could result in the firearm being seized by the Federal Bureau of Alcohol, Tobacco, and Firearms. There are few options which exist to transfer title to a firearm once the owner has been declared incapacitated, so in many cases seizure is the result. A Gun Trust can circumvent this issue by having the ownership interest held by the Trust while the incapacitated individual could be listed as a beneficiary should the incapacity be removed.

While these are the most common “trigger” scenarios for Gun Trusts, there are many others which we look into when our clients have firearms in their estate, not the least of which can be removing the firearms from a person’s estate for privacy purposes. Probate records are public, and many people wish to keep their weapons private, so transferring these to a Gun Trust during life can avoid the existence of these weapons coming to the public view. When you are having to fight a battle with the law on two fronts (Federal and State), it can be beneficial to consider all options for your munitions.

Since the “ownership” of the firearm changes, taxes will have to be paid, if applicable, for the transfer of any firearm, and new registrations will need to be filed. Additionally, screenings will need to be performed for any potential beneficiaries of the Gun Trust. While the administrative hurdles can be frustrating, the peace of mind knowing only eligible individuals can legally receive a firearm can often outweigh these costs.

For more information regarding this or any other estate planning matter or to speak to your attorney, please contact us at 404-255-7400 or info@hoffmanestatelaw.com.