Intervivos Gun Trusts

by Garrett T. Smith

Gun trusts are becoming increasingly popular as more restrictive gun control laws are being implemented, the last of which was by executive order in July 2016. Certain firearms are restricted under Title II of the National Firearms Act (NFA). The most common Title II weapons include suppressors, short barreled rifles and shotguns, and automatic weapons. A gun trust protects the privacy of the gun owner and can shield the gun owner’s family and friends from criminal liability. A gun trust gives you more protection in the acquisition, usage, and transfer of Title II weapons.

One of the biggest mistakes owners of restricted weapons make is exposing family and friends to criminal liability. Title II weapons must be registered on the National Firearms Registry. When a Title II weapon is registered to an individual, only that individual may use that weapon. For example, if you took your family or friends out shooting to “try out” your new suppressor, they would technically be felons under the law if they picked up your weapon. The criminal liability for a felony violation is up to $500,000 in fines and 10 years in prison. The ATF is the federal government agency responsible for enforcing the NFA and has recently brought on hundreds of additional agents to crack down on unlawful transfers.

An unlawful transfer occurs when a registered owner transfers possession and/or control of a Title II weapon to another person. The ATF and IRS have recently teamed up to maximize penalties for unlawful transfers. Federal law requires a purchaser of a Title II weapon to pay a $200 tax every time a restricted weapon is transferred. In cases where the ATF has imposed penalties for unlawful transfers, the IRS has prosecuted for tax evasion. The most common unlawful transfer is between spouses. A gun trust allows both spouses to exercise control and possession over Title II weapons as co-trustees. It also allows other named individual beneficiaries to use the weapons without criminal liability as long as they remain in the presence of a trustee.

Another common mistake is made upon the death of the registered owner. Gun trusts provide protection for executors who are unfamiliar with federal and state firearm laws. An executor who is trying to pass your guns to your heirs can accidentally commit a felony by transferring to a prohibited person. A gun trust has specific instructions to ensure that the successor trustee is aware of the laws and transfers legally.

Gun trusts can also help your non-restricted firearms pass to your heirs privately and limit liability toward the rest of your family trust assets.

This is a complicated area of law and I can help you navigate the complexities while ensuring that you retain as much privacy as possible and limit criminal liability for your loved ones.

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