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Estate Planning and Firearms: Legal Considerations

Posted by Arthur R. Frost | Sep 27, 2018 | 0 Comments

Estate planning is important. Careful estate planning considers all eventualities. Technically, firearms are considered household goods much like the family china, furniture, and other effects. However, there are special considerations you must take into account when passing firearms on after someone's death. As such, they should never just be lumped in with the rest of the household goods in a will or revocable living trust.

Federal and State Laws Apply to Firearms

There are both state and federal laws that dictate who may be lawfully entitled to own a firearm. You should not leave a firearm to someone who may not legally be able to possess it. Additionally, these laws may apply to ammunition.

Some weapons must be registered with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). These include, but are not limited to:

  • Machine guns
  • Short barreled rifles and
  • Certain other weapons

The transfer of weapons from one owner to another also needs to be documented with the federal government, and in some cases, the state. Understanding these limitations and restrictions can help you, as a gun owner, craft a legacy consistent both with your personal desires and the federal laws.

While federal laws apply to all residents of the United States equally, state laws vary. What may be legal in New York may not be legal in New Jersey, Arizona, or Alaska. Because each state has different laws, consideration must be given to the laws in the state of the recipient, as well as the laws in the state of the estate planner.

You should keep in mind federal and state laws both when deciding who might inherit your weapons or ammunition, as well as when you are determining who might make a suitable personal representative. A personal representative may not qualify to administer the estate if they don't meet certain requirements.

Creating a Will with Options

There are three challenges that face gun owners when making a will or other estate plan.

  • The history of an individual beneficiary or personal representative may not be known.
  • The future of an individual beneficiary or personal representative cannot be known.
  • Changes in the law are unpredictable.

First, depending on the jurisdiction, something as simple as a misdemeanor can be grounds to prohibit someone from owning or possessing a firearm. Just because you are unaware of a potential beneficiary's or personal representative's criminal history does not mean they don't have a criminal history that might preclude them from possessing firearms.

Second, even if you did perform a background check on someone to ensure their qualifications to own or possess firearms, that background check is only good up to the date it is performed. Who can predict what might happen in the future that could preclude someone from gun ownership or possession in the future?

Finally, the laws regarding who can own or possess firearms can change.

Because of these uncertainties, it is a good idea to hire an attorney who can assist in writing a will or trust that covers all eventualities.

Contact Frost & Kavanaugh

At Frost & Kavanaugh, we have the experience necessary to assist with writing a will or trust that suits the needs of you and your family. We pay attention to detail, so you can rest assured we have considered every eventuality. Contact us today for a consultation.

About the Author

Arthur R. Frost

Art graduated from Thomas More College in Merrimack, NH in 1991 with a B.A. in Philosophy, and graduated from Gonzaga University School of Law in Spokane, WA in 1995. He was admitted to practice in all New York State Courts and the United States District Court for the Northern District of New York in 1996. He w...

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