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Guns and Estate Planning

guns and estate planning | Layman & Nichols, PCOver one-third of Virginians are gun owners ranging from aficionados, hunters, and collectors. There are also many families who have had guns passed down from generation to generation as family heirlooms. With tightened laws and stringent penalties for noncompliance related to ownership and transfer of ownership, estate planning for gun ownership should be done thoroughly and carefully to ensure valuable firearms are legally bequeathed.


National Firearms Act (NFA) of 1934

The machine gun is the most commonly owned NFA weapon. Machine guns are classified as “any weapon which shoots, is designed to shoot, or can readily be restored to shoot, automatically more than one shot, without manually reloading, by a single function or trigger”- United States vs. Carter. Through the federal Gun Control Act of 1968 and the Firearms Owners’ Protection Act (both which amended the NFA), transfer of machine gun ownership is only legal in two ways:

  • Transfer and possession of machine guns by government agencies
  • Transfer of machine guns that were lawfully possessed in compliance with the NFA at the time of the prohibition in 1986

The strictly enforced criminal penalties and a no-tolerance policy for unlawful (actual or constructive) possession of NFA firearms including fines up to $250,000, up to ten years in prison, and forfeiture of the weapon as well as any “vessel, vehicle, or aircraft” used to conceal or convey the weapon, make it incumbent on any estate containing one of these weapons to follow the procedures, as well as any particular state regulation, explicitly. State and local governments may have additional restrictions.


Non-NFA Weapons

These weapons include basic rifles, shotguns, and handguns. The Code of Virginia regulates the transfer and ownership of non-NFA weapons as well as penalties for noncompliance.


Curios and Relics (Antique Firearms)

Some of these are subject to the NFA while others are not. The Code of Virginia states that a suitable recipient of a firearm must be in compliance with the Federal Gun Control Act which restricts certain individuals from receiving a firearm. A restricted individual is someone who has a criminal background, a history of mental illness, or any person under the age of 18. Since a designated recipient eligible at the time of estate planning may not be eligible at the decedent’s death, clients should strongly consider naming alternative recipients.


Gun Trust

A gun trust may be a helpful tool in navigating the complicated laws and regulations of firearm ownership and transfer of ownership.

The benefits of a gun trust are:

  • Provides guidelines for all parties regarding the proper transfer of ownership of firearms to avoid breaking federal and state restrictions or laws
  • Provides guidelines for the suitable receiver of firearms within state and federal regulations
  • Provides protection of assets from possible confiscation by the Bureau of Alcohol, Tobacco, Firearms, and Explosives

Conclusion

Hiring a professional in estate planning will reduce the stress and complications involved with the proper transfer of a firearm. The estate plan necessary for the transfer of ownership of guns or firearms should be carefully drafted with both the executor and the receiver in compliance with current federal and state gun laws. If you have any questions concerning estate planning and firearms, please feel free to contact us at Layman & Nichols, P.C.

 

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