When we talk about estate planning, we often discuss the idea of passing our tangible personal property (also known as our “stuff,” or in the minds of many clients, their “treasures!”) to others when we pass away. One thing that we do not often talk about, but is certainly relevant to address in a plan, is whether the client owns any firearms.
Some estate planners treat firearms as they would any other personal property, but the ownership of guns should be specifically addressed in the plan.
Gun Ownership Laws Must Apply to the Beneficiary
You cannot leave your firearm to someone who is not allowed to own a gun or ammunition under the Federal Gun Control Act. This includes individuals who have been found to be mentally incompetent or those who have committed felonies. The Commonwealth of Virginia also prohibits certain mentally incapacitated or legally incompetent individuals, those convicted of specific drug offenses (recent repeated misdemeanors and those under the age of 18.
Nominating a Fiduciary
The individual who has been nominated to serve as Trustee or Executor of an estate that includes a firearm must also meet the restrictions.
Firearms are Subject to Federal (And Sometimes State) Laws
Certain types of firearms are subject to federal and/or state laws. Under certain circumstances, firearms are required to be registered with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). A gun trust is generally the best estate- planning tool for ATF-registered firearms. Under the Brady Handgun Violence Protection Act, certain firearms, such as semi-automatic weapons, are banned all together. Under the Commonwealth of Virginia, unless a firearm is a machine gun, most firearms are not required to be registered.
If the beneficiary resides in a different state then that state’s firearm regulations will need to be reviewed before the firearm is delivered to that individual. Since the beneficiary may reside in a different state prior to the owner’s death, it may make more sense to wait until the decedent passes prior to looking at the state’s firearm laws. It is still important however, that the executor researches the gun laws of the beneficiary’s state prior to transferring the firearms. If the fiduciary passes a firearm to an individual that they know may not possess one, they themselves may be found guilty of a felony.
Reilly Law PLC Can Help
If you or a loved one own a firearm, it is important that you account for it in your estate plan. In some cases you might benefit from a special kind of legal document called a “Gun Trust.” We have colleagues in our WealthCounsel network in the area who have a great deal of experience with these types of Trusts and firearms issues in general and we can collaborate with those colleagues or make a referral as appropriate.
Regardless, it is important that you have an estate plan to ensure that your assets go to the intended individuals. Without an estate plan, the process can be long and expensive. If you do not have a plan, or if your plan needs to be updated, it is important to find an estate-planning attorney who understands the intricacies of this type of planning. At Reilly Law PLC, we work with our clients to create plans that accomplish their goals. To learn more or to schedule a free consultation, visit us online or call us at 703-579-1936 today!