One question we often receive from our estate planning clients is: what happens to my firearms when I die? Any transfer of firearms involves both federal and state laws. Transfers after death can become especially complex depending on the they type of gun owned, the relationship with the recipient, and the state where the recipient resides (which could involve other state laws if outside Colorado). Many clients wish to leave their firearms to the family or close friends but to do so they must consider whether those transfers are possible or even legal.
State and Federal Laws Involved
With respect to state law, in 2013 Colorado passed new gun control laws. These laws (i) require background checks on the transfer of most firearms, subject to certain exceptions, and (ii) .prohibit the sale, transfer or possession of large-capacity ammunition magazines (more then 15 rounds), subject to some exceptions.
The two principal federal firearms laws currently in force are the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA), as amended.
The sale and possession of guns such as (but not limited to) fully automatic weapons, short-barreled rifles, short-barreled shotguns, and silencers are subject to the National Firearms Act of 1934 (NFA). In general, these weapons must have serial numbers and be registered with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.
The GCA regulates the manufacture, transfer, and possession of firearms, extending to categories of weapons that fall outside the scope of the NFA. In general terms, the GCA sets forth who can—and cannot—sell, purchase, and possess firearms, how those sales and purchases may lawfully take place, what firearms may lawfully be possessed, and where firearm possession may be restricted.
Common Issues
In our practice, we have seen clients run into these issues when administering an estate with firearms:
1. The Firearms are restricted by federal or state law. Under federal law this often will include unregistered NFA weapons. These weapons cannot be registered after the fact and cannot be transferred. Under Colorado law this will often include high-capacity magazines that do not meet the exclusions for ownership and transfer.
2. The Firearms are given to a “prohibited person” under the estate plan. Only persons over eighteen years old can own rifles and shotguns, and only persons over twenty-one can own handguns. Further, federal law and state laws can and often do prohibit any person who has been charged with a felony, the misdemeanor of domestic abuse, or even a person that uses recreational or medical marijuana, from owning a firearm.
3. Transfers to Other States with Different Laws. If you bequeath firearms to a family member in another state. he or she must comply with the laws of both their own state (or city) and yours pertaining to registration and transportation of firearms. This can cause some concern if firearms are transported across state lines if the recipient is unfamiliar with or not in compliance with the laws of both states.
Tips for Making Transfers of Firearms
A. If you believe the weapon in the estate is prohibited and not transferable you can contact the ATF and arrange for them to be abandoned.
B. The cleanest way to make a transfer of the inherited firearm is to go through an entity with a Federal Firearm License (FFL) such as a licensed gun dealer. The FFL can assist the personal representative in completing required paperwork and can even hold onto the firearms while completing the background check. These steps will help make sure everyone complies with relevant federal and state laws.
C. Many of our clients have decided to create a "gun trust," which is specifically designed to hold ownership of firearms. Usually, these trusts are used for firearms that are subject to strict federal and state regulations. 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. You should use an attorney to prepare a gun trust and not try to prepare the document yourself.
D. If no family members wish to own the guns in the estate, the personal representative can sell them to a licensed dealer or surrender them to the local police department if the value is negligible. This will prevent the guns from ever being stolen or falling into the wrong hands inadvertently.
If you have questions about probate or are in need of direct assistance, schedule a consultation with Michael Barry of Ball & Barry Law.
