“Estate Planning Today” Series: Part 1. Should I include these things as part of my Estate Plan?

Our lives and technology are changing faster than ever and our estate plans need to keep up with these changes. This series will look at things that may not have been addressed or asked about in the estate planning process 5-10 years ago, but are important to many families today.

These things include firearms, digital assets, planning for pets, and life planning. There are trusts and other strategies available for these things, but what are the advantages and disadvantages of including them as part of your estate plan?

Certain items, such as firearms, cannot simply be left to others in the same way that you would leave other property. They are subject to strict regulations that you may not have accounted for in your Will or Trust. Part I will focus on “Estate Planning for Firearms Owners”, and whether or not firearms owners should include their guns as part of their estate plans and how to do so.

Part 1: Estate Planning for Firearms Owners

Passing firearms in an estate is much different from passing on other personal property. The National Firearms Act (NFA) very strictly regulates the possession and transfer of firearms. In addition, states and even local jurisdictions have an array of firearms transfer rules that must be followed.

Under the NFA, there are some commonly-known restrictions. For example, people convicted of felonies, domestic violence, or drug trafficking and those who are mentally ill are not allowed to own firearms.  Less commonly known is that dishonorably discharged veterans and persons who have renounced their U.S. citizenship are also not allowed to own firearms. If an executor follows instructions in a Will that directs the distribution of firearms to people in the categories above, the executor is violating the NFA and may be subject to criminal and civil penalties.  Even more nerve-wracking is that merely having a firearms appraised can cause its seizure. Because of this, bequeathing firearms in a Will is not a prudent way to plan.

A better choice for transferring firearms is to use a Revocable Living Trust (RLT) designed specifically for the transfer, ownership, and possession of guns. Many estate planning attorneys call these “NFA” trusts or “Gun Trusts.”  Using a “Gun Trust” can avoid or minimize many of the challenges of passing on firearms. It is essential that you meet with an Attorney experienced in these matters, such as Evan H. Farr, CELA, to set up a “Gun Trust” or any of the trusts described in this series.

The following are things to keep in mind when it comes to setting up a “Gun Trust”:

• It’s very important to put thought into the name of the trust, as it should not be changed once the firearms are transferred into the trust.  If the name is changed, then the firearms have to be registered again in the name of the new trust, and can cause another transfer tax.

• Once the trust owns the firearms, any of the beneficiaries of the trust are allowed to use the firearm, including minors.  The Trustee is given the responsibility for insuring that the person using firearms has the capacity to use it.

• There are serious penalties for individuals possessing NFA Firearms without proper authorization and approval from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). If an individual is the registered owner of the gun, then that individual is the only person permitted to use or possess the weapon. It is a common misunderstanding that it is permissible to let others use or possess a gun as long as the owner is present. Such use or possession is an unapproved transfer in violation of the law. Unfortunately, the flexibility inherent in most standard revocable trusts could result in such a violation.

Firearms trusts are different than regular Revocable Living Trusts, as the revocation of the trust has to be approved by ATF, which must also approve the distribution of the firearms to beneficiaries. The fact that the trust is revocable means that the creator of the trust could revoke the trust, which would automatically result in unauthorized possession of a weapon registered to the trust. Or maybe the creator signed a Financial Power of Attorney (which usually accompanies a revocable trust in most estate plans) giving an agent broad powers, including the ability to revoke the revocable trust, also resulting in unauthorized possession.

There are many other potentially serious unintended consequences to transferring firearms to a revocable trust, including the additional liability the successor trustee takes on when attempting to follow the required legal procedures for seeking ATF approval for distributing the gun to the trust beneficiaries. Again, it is important to obtain competent legal representation in order to avoid these unforeseen hazards.

Firearms are unique assets that require an estate plan to be uniquely tailored to deal with them. If you already have an estate plan and long-term care plan, call the Fairfax Elder Law Firm of Evan H. Farr to review and update your plan accordingly. Ask about The Farr Law Firm’s Lifetime Protection Program, which ensures that your documents are properly reviewed and updated as needed, so that they will have maximum effect at law. If you don’t have an estate plan or long-term care plan, now is the time to get started. Call us today at 703-691-1888 to set up an appointment for a consultation.

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.

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