Welcome to CPA at Law, helping individuals and small businesses plan for the future and keep what they have.

This is the personal blog of Sterling Olander, Certified Public Accountant and Attorney at Law. For over five years, I have worked as a tax professional helping clients with tax mitigation strategies, tax controversies, business transactions, wealth preservation structures, tax-exempt organiations, and estate plans.

I write about any legal, tax, or technological information that I find interesting or useful in serving my clients. All ideas expressed herein are my own and don't constitute legal or tax advice.

Trusts as Beneficiaries of Retirement Plans

In order to qualify as a "retirement plan" under the Internal Revenue Code, 401(k)s, individual retirement accounts, and other retirement arrangements must be distributed to the employee that owns the plan or that employee's designated beneficiaries pursuant to I.R.C. § 409(a)(9) and the accompanying regulations. For purposes of these rules, only individuals are permitted to be designated beneficiaries of a retirement plan. One reason for this is so that required minimum distributions can be calculated.

However, if certain requirements are met, a trust may be named as the beneficiary of an employee's retirement plan, and the individual beneficiaries of the trust will be treated as having been designated as the plan beneficiaries. For an excellent breakdown of how the required minimum distribution rules work where a trust is a beneficiary, see the chart prepared by Keebler and Associates located here. Naming a trust as a beneficiary of a retirement plan can be a useful estate planning technique, but after the employee passes away, the custodian of the retirement plan will need assurance that the requirements described in Treas. Reg. § 1.401(a)(9)-4 are satisfied.

These so-called "see-through" rules for a trust will be satisfied after the employee's death if the beneficiaries of the trust with respect to the retirement plan, if not specified by name, are identifiable from the trust instrument and certain documentation is provided to the custodian. The documentation requirements include (1) a list of all of the current beneficiaries of the trust, (2) a list of all the contingent and remainder beneficiaries of the trust as well as a description of the conditions on their entitlement, (3) a certification that this beneficiary list is correct.

Finally, the trust must be valid under state law and be irrevocable, and the trustee must agree to provide a copy of the trust instrument to the custodian upon demand. The trust agreement should be drafted with these rules in mind by restricting distributions of any retirement plan assets to individual trust beneficiaries and requiring that such assets be distributed in accordance with I.R.C. § 409(a)(9) and the regulations. Compliance with these rules will allow a trust to be a designated beneficiary of a retirement plan.

Updated: Fixing Problems with Online IRS EIN Applications

This post is an update to a prior post, with updated information about fixing rejected online EIN applications submitted on the IRS's website. Consider the following potential causes:

Every EIN application requires a responsible party name and matching tax ID number. Often, this will be an individual and their social security number, but sometimes the responsible party is another business with another EIN number. The IRS will not process online EIN applications if the responsible party is an entity with an EIN previously obtained through the internet. In other words, unless the responsible party is an individual with a social security number or an entity with an EIN that was not obtained through the internet, the online EIN application will always return an error.

If the first two numbers of the entity's EIN Number begin with 20, 26, 27, 45, 46, or 47, that EIN number was obtained through the online EIN application. Accordingly, that entity can never be a responsible party for another online EIN application; you will have to apply over the phone or list another responsible party on the online application, such as the individual who owns the entity. If the responsible party's EIN begins with 30, 32, 35, 36, 37, 38, 61, 80, 84, 90, or 91, that EIN number was not obtained through the online EIN application, and that entity should be able to be a responsible party on another online EIN application.

The IRS will only issue an EIN to one responsible party per day. This limitation applies to all requests for EINs, whether through the online EIN application or by phone, fax, or mail. If an EIN has been issued to any entity by any application method on a particular day, the responsible party on that EIN application must wait until the next day before being the responsible party on another EIN application.

A rejected EIN application indicating Reference Number 101 has a name conflict. The IRS requires a unique entity name before it will issue an EIN, similar to how the secretary of state requires a unique entity name within that state before Articles or Certificates of Formation may be successfully filed. However, because the IRS is a federal agency issuing EINs for entities in all 50 states, it potentially checks for duplicate entity names across multiple states. There are numerous references to a state on the online EIN application, such as the physical location state, mailing address state, and the state where the Articles are or will be filed.

If all of these state references are the same, the IRS will only check for previously-issued EINs with that entity name in that one state. If multiple states are reported, for example, if the Articles were filed in a different state than the business's physical address, the IRS will check both states for name availability before issuing an EIN, even though filing the Articles only requires a unique entity name in the one state where the Articles are being filed. Applying for an EIN over the phone may be required in these name conflict situations; often, the IRS agent will ask to see a copy of the Articles before issuing an EIN.

Reference numbers 102, 103, 105, or 108 indicate that the name and tax ID number of the responsible party do not match IRS records. Reference number 104 means a third-party designee's contact information cannot be the same as the address or the phone number of the entity that is applying for an EIN. Reference numbers 109, 110, 112, or 113 mean that the online application is temporarily unable to assign EINs; try again later. Reference number 114 indicates that only one EIN will be assigned per day per responsible party.

Reference Numbers 109 and 110 indicate technical problems and an EIN may still be obtainable using the exact same information that resulted in the error. The error might result from too many people trying to obtain an EIN at the same time. Try again later, or try closing and reopening the browser, using a different browser, using a different computer, clearing cookies, restarting the computer, or adjusting your security settings. Or, feel free to contact me; I would be happy to try and help.

Utah's New Uniform Power of Attorney Act

Utah's new Uniform Power of Attorney Act went into effect on May 10, 2016. A power of attorney is a document with which an individual, known as the principal, grants authority to an agent to act in his or her place and is an important component of an estate plan.

One the most notable features of the new act compared to Utah's old act is that the new act provides an optional statutory power of attorney form, located here. Even though a power of attorney is valid even if it does not conform to the statutory form, the statutory form will likely become the standard form in Utah and for that reason, may attorneys will likely adopt some version of the statutory form.

Existing powers of attorney are still valid under the new act, assuming they were valid under the old act, and they may actually be more effective now than under the old act. This is because under the new act, a third party must generally either accept an acknowledged power of attorney or request a certification or an opinion of counsel regarding the power of attorney. As long as the certification or opinion is provided, the third party is generally liable for refusing to accept the power of attorney. A statutory form certification is part of the new act. In other words, there is less opportunity for a third party to reject a power of attorney under the new act as there was under the old act, an issue I discussed in a prior post.

On the other hand, existing powers of attorney may no longer be sufficient to grant the agent the same powers that the agent would have had under the old act. This is because under the new act, an agent can take certain actions on behalf of the principal only if the power of attorney expressly grants the agent that authority. For example, the power to make gifts on behalf of an incapacitated principal is occasionally useful as an estate tax reduction strategy, but any existing power of attorney that doesn't specifically grant this power will not be effective in giving that authority to the agent.

The new act provides a good opportunity for Utahans to pull our their estate planning documents and consider whether their existing power of attorney is appropriate for their needs. A well-drafted power of attorney will provide peace of mind and pay for itself many times over if it negates the need for a conservatorship or prevents waste of an incapacitated principal's assets.

IRS Imposter Phone Scam

I've been contacted multiple times in the past few months by individuals who have received calls from someone purporting to be with the IRS and demanding immediate payment of an outstanding tax liability. Such phone calls are scams, and have been occurring for years. Based on my recent experience and information published by U.S. government agencies, I'm offering the following ways to recognize these phone scams:
  • The caller says they are from the IRS or Treasury Department and demands payment of a tax bill over the phone immediately. 
  • The caller demands payment via a prepaid debit card, a money order, or a wire transfer.
    • The IRS will never call and ask for credit card numbers or bank information over the phone. The IRS does not need this information; any taxpayer can initiate a payment to the IRS for any federal tax at any time using the EFTPS System.
  • The caller threatens those who don't pay with criminal charges, a grand jury indictment, immediate arrest, deportation, or loss of a passport or driver’s license.
    • The IRS will never take or threaten to take any of these actions if payment is not made during the course of a phone call. Certainly, criminal penalties are possible in certain circumstances, but not before due process. As IRS Commissioner John Koskinen put it, "If you are surprised to be hearing from us, then you're not hearing from us."
The IRS will always send notices and bills in the mail and follow their standard collection and appeals process, which I described in a previous post. If you do receive a call from an individual claiming to be with the IRS and demanding money immediately, hang up the phone. The Treasury Inspector General for Tax Administration has an online form that can be filled out to report the scam.

Bequests to Charity and Tax Apportionment

Many individuals wish to leave a specific amount of money or particular property to their heirs and the rest of their estate to charity. While this seems straightforward, administering this plan can become complicated when the estate is subject to the estate tax.

The reason is explained in Treas. Reg. § 20.2055-3(a)(1): "If a residuary estate... is bequeathed to charity, and by the local law the Federal estate tax is payable out of the residuary estate, the deduction may not exceed that portion of the residuary estate bequeathed to charity as reduced by the Federal estate tax... [T]he resultant decrease in the amount passing to charity will further reduce the allowable deduction."

Stated differently, the estate tax deduction is based on the amount actually available for charitable uses, which amount is reduced by estate taxes. This "results in a circular, or interrelated, computation because the reduction in the charitable deduction in turn increases the taxes payable that again reduces the charitable deduction and so forth. The calculation must be run until the additional taxes zero out."

This problem can be avoided through careful drafting by either "structuring the charitable bequest as a pre-residuary rather than a residuary bequest" or not allowing for the apportionment of the estate tax on any property set aside for charity. Under the Uniform Estate Tax Apportionment Act, which has been adopted by a handful of states, "charitable beneficiaries generally are insulated from bearing any of the estate tax;" however, this is generally overridden by a tax apportionment clause in a will or trust. Every client must understand their options for apportioning estate taxes (not to mention other inheritance taxes) and the impact the apportionment will have on their distribution scheme.

Methods of Estate Distribution

Estates that are left to a decedent's descendants, whether by will, trust, or statute, use one of three primary methods of distribution: (1) Per stirpes or right of representation, (2) the pre-1990 Uniform Probate Code method, which is known by various names, and (3) the current Uniform Probate Code method or per capita at each generation.

The three methods result in different distributions only where multiple descendants with issue predecease a decedent. In order to illustrate these differences, I've prepared the following charts to illustrate all possible scenarios involving an individual with three children, A, B, and C. Child A has 3 children, U, V, and W; child B has 1 child, X, and child C has 2 children, Y and Z. This is the example given in the comments to the Uniform Probate Code, and I'll assume the decedent passed away with an estate worth $720. The first table illustrates respective inheritances if all children survive, with each method reaching the same result:

   Per Stirpes  Pre-1990 UPC  Current UPC 
 A  240  240  240 
 u/v/w  0  0  0 
 B  240  240  240 
 x  0  0  0 
 C  240  240  240 
 y/z  0  0  0 

The next table illustrates respective inheritances if one child predeceases the decedent. Children who have predeceased the decedent are in [brackets].  Note that the figures in the boxes for grandchildren is the amount of inheritance per grandchild. Again, each method reaches the same result.

   Per Stirpes  Pre-1990 UPC  Current UPC 
 [A]  0  0  0 
 u/v/w  80  80  80 
 B  240  240  240 
 x  0  0  0 
 C  240  240  240 
 y/z  0  0  0 
        
 A  240  240  240 
 u/v/w  0  0  0 
 [B]  0  0  0 
 x  240  240  240 
 C  240  240  240 
 y/z  0  0  0 
        
 A  240  240  240 
 u/v/w  0  0  0 
 B  240  240  240 
 x  0  0  0 
 [C]  0  0  0 
 y/z  120  120  120 

The next table illustrates respective distributions where all children predecease the decedent. The pre-1990 UPC and current UPC methods reach the same result: All grandchildren are treated equally. The per stirpes method divides what a grandchild's parent would have received among the grandchild's siblings, thereby reaching a different result.

   Per Stirpes  Pre-1990 UPC  Current UPC 
 [A]  0  0  0 
 u/v/w  80  120  120 
 [B]  0  0  0 
 x  240  120  120 
 [C]  0  0  0 
 y/z  120  120  120 

Finally, I have illustrated the different scenarios where multiple children, but not all, predecease the decedent. The per stirpes and pre-1990 UPC methods reach the same result. Again, figures in the boxes for grandchildren are the distribution amount per grandchild:

   Per Stirpes  Pre-1990 UPC  Current UPC 
 [A]  0  0  0 
 u/v/w  80  80  120 
 [B]  0  0  0 
 x  240  240  120 
 C  240  240  240 
 y/z  0  0  0 
        
 [A]  0  0  0 
 u/v/w  80  80  96 
 B  240  240  240 
 x  0  0  0 
 [C]  0  0  0 
 y/z  120  120  96 
        
 A  240  240  240 
 u/v/w  0  0  0 
 [B]  0  0  0 
 x  240  240  160 
 [C]  0  0  0 
 y/z  120  120  160 

50 States' Charitable Solicitation Registration Search

In a previous post, I discussed the various laws requiring nonprofit organizations wishing to solicit donations from the public to register with the state. Nearly all states that require charitable solicitation registration make registered organizations' information available to the public. In this post, I've collected links to each states' webpage for searching for charities that have qualified to solicit contributions within the state.

In utilizing these state databases, it is important to keep in mind that the standard for registering is different in every state. Texas, for example, does not require charities or non-profit organizations to register unless they solicit for law enforcement, public safety, or veterans causes. Other states, such as Louisiana, only require registration of paid fundraisers or charities that contract with paid fundraisers from outside of the organization.

This post will be updated as necessary; please comment below if you come across broken links or updated resources:

 Alabama  Illinois  Montana^  Rhode Island
 Alaska  Indiana^  Nebraska^  South Carolina
 Arizona^  Iowa^  Nevada  South Dakota^
 Arkansas  Kansas  New Hampshire  Tennessee
 California  Kentucky  New Jersey  Texas
 Colorado  Louisiana*  New Mexico  Utah
 Connecticut  Maine  New York  Vermont^
 Delaware^  Maryland  North Carolina  Virginia
 District of Columbia   Massachusetts   North Dakota  Washington
 Florida  Michigan  Ohio  West Virginia
 Georgia  Minnesota  Oklahoma  Wisconsin
 Hawaii  Mississippi  Oregon  Wyoming^
 Idaho^  Missouri  Pennsylvania   

*Registration required, no online search available
^No registration required

Uniform Voidable Transactions Act

The Uniform Voidable Transactions Act (UVTA), known as the Uniform Fraudulent Transfer Act (UFTA) until 2014, is a uniform law providing remedies to creditors for certain debtor transactions that are deemed unfair. The UFTA was adopted by 46 jurisdictions, while the UVTA has currently been adopted in nine states. However, the UVTA is not substantially different from the UFTA, meaning that the vast majority of states have very similar statutes on the subject.

The full text of the final version of the UVTA is located here. Following is a conceptual questionnaire to assist in determining whether a transaction is voidable under the UVTA:

1. Was a transfer made (or obligation incurred) by a debtor?
       a. Yes - Go to Question 2.
       b. No - STOP; no voidable transaction.
2. Was the transfer made with actual intent to hinder, delay, or defraud any creditor? See eleven factor test in UVTA section 4(b).
       a. Yes - STOP; transaction is voidable.
       b. No - Go to Question 3.
3. Was the transfer made (i) after a creditor claim arose (ii) to an insider (iii) for an antecedent debt (iv) when the debtor was insolvent and (v) where the insider had reasonable cause to believe that the debtor was insolvent?
       a. Yes - STOP; transaction is voidable.
       b. No - Go to Question 4.
4. Was the transfer made without receiving a reasonably equivalent value in exchange?
       a. Yes - Go to Question 5.
       b. No - STOP; no voidable transaction.
5. Was the transfer made (i) after a creditor claim and (ii) at a time the debtor was insolvent or the debtor became insolvent as a result of the transfer?
       a. Yes - STOP; transaction is voidable.
       b. No - Go to question 6.
6. Was the debtor engaged in or about to engage in a transaction for which its remaining assets were unreasonably small in relation to the transaction or (ii) intending to incur, or believing or reasonably should have been believing that it would incur debts beyond the its ability to pay as they became due?
       a. Yes - STOP; transaction is voidable.
       b. No - STOP; no voidable transaction.

Charitable Solicitation Registration

Nearly every state requires charitable organizations that solicit money to register before fundraising. Often, there are exceptions to registration, such as a church soliciting from its membership or organizations that are regulated under other laws such as political action committees. Otherwise, however, the definition of "soliciting" is very broad and could arguably include simply maintaining a website requesting donations, depending on the state.

Additional registration requirements often apply to professional fundraisers, fundraising counsel, and commercial co-ventures. For an excellent summary of these laws in all U.S. jurisdictions, see State Charitable Solicitation Registration Requirements by Asiatico & Associates, PLLC.

Fortunately, a charitable organization that intends to engage in a nationwide fundraising campaign can register in most jurisdictions using a single form, thanks to the Unified Registration Statement, or URS. The URS is available as an alternative to filing the state-specific form in each participating jurisdiction; thus, a nonprofit may use either the state form or the URS in most registration states.

According to the URS website, 37 jurisdictions currently accept the URS (although Arizona's registration law was recently repealed), with 14 of those requiring a state-specific supplemental form. Colorado, Florida, and Oklahoma, and most recently Nevada, require charitable solicitation registration but do not accept the URS. Nevada is not currently listed on the URS website and others as a state that requires charitable solicitation because the requirement is so recent, becoming effective January 1, 2014. Be sure to check state law before soliciting for your charity!

Streamlined Filing Compliance Procedures

U.S. taxpayers are required to report foreign assets. For those who have not, the IRS has offered various options for addressing these failures. One such option is the Offshore Voluntary Disclosure Program (OVDP), which is now in its fourth iteration. The distinguishing characteristics of this program are relatively steep penalties that include a 20% understatement penalty and a 27.5% offshore penalty but the benefit of being able to “generally eliminate the risk of criminal prosecution for all issues relating to tax noncompliance and failing to file FBARs."

The other alternative is Streamlined Filing Compliance Procedures (SFCP), which are available to taxpayers who can certify that their "failure to report foreign financial assets and pay all tax due in respect of those assets did not result from willful conduct." On June 18, 2014, the IRS announced major changes in its offshore voluntary compliance programs, a key change being that for the first time, SFCP are available to certain U.S. taxpayers residing in the United States. Thus, SFCP now have two subsets, Streamlined Foreign Offshore Procedures (SFOP) and Streamlined Domestic Offshore Procedures (SDOP), which are available to foreign taxpayers and domestic taxpayers, respectively.

The decision between whether to use the OVDP or SFCP depends in part on the taxpayer’s level of concern regarding whether their failure to properly report could be viewed as willful. If SFCP are selected and the IRS discovers evidence of willfulness, it may open an investigation that could lead to civil fraud penalties, FBAR penalties, information return penalties, or even referral for criminal investigation. Once the OVDP or SFCP option has been pursued, the option not pursued becomes unavailable.

In order to participate in SFCP, taxpayers must file any delinquent FBARs for most recent 6 years according to special IRS instructions and file an amended U.S. tax return for most recent 3 years. Foreign individuals using SFOP can file an original return, but domestic individuals must have already filed. The returns must be filed at a specially-designated IRS address and include a statement certifying SFCP eligibility, that the FBARs have been filed, and that the failure to file was non-willful. Finally, the taxpayer must pay all taxes, penalties, and interest and individuals using SDOP must include the 5% the Miscellaneous Offshore Penalty. As this has been a high-level overview, consult with a competent tax adviser before undertaking any of these programs.

Benefits Governed by ERISA

The Employee Retirement Income Security Act of 1974 (ERISA) was passed to protect employee benefit plans and require disclosures pertaining to such plans. With certain exceptions, ERISA governs any employee benefit plan that is established or maintained by an employer or employee organization. An "employee benefit plan" refers to a plan, fund, or program that provides ERISA-type benefits.

In summary, five elements must be present in order for an ERISA plan to exist: (1) a plan, fund, or program (2) that is established or maintained (3) by an employer or employee organization (4) for the purpose of providing ERISA-type benefits (5) to participants or their beneficiaries. See Moorman v. UnumProvident Corp., 464 F.3d 1260 (11th Cir. 2006).

Not all employee benefits rise to the level of a "plan, fund, or program." For example, a informal employer practice, which isn't communicated to employees, of providing benefits to long-time employees after retiring may not constitute a plan, fund, or program. The test is whether "a reasonable person could ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits."

A number of factors are used in determining whether a bona-fide plan or program has been "established or maintained" by an organization. These include "(1) the employer's representations in internally distributed documents; (2) the employer's oral representations; (3) the employer's establishment of a fund to pay benefits; (4) actual payment of benefits; (5) the employer's deliberate failure to correct known perceptions of a plan's existence; (6) the reasonable understanding of employees; and (7) the employer's intent."

Some organizations can establish and maintain a plan to provide ERISA-type benefits without actually creating an ERISA employee benefit plan if the organization is not an employer or employee organization. Where there are no actual employees receiving benefits, such as a partnership providing benefits solely to its non-employee partners, there is no ERISA plan. An employee organization is one in which the employees/members participate and which exists for the purpose, in whole or in part, of dealing with the employees' employer.

"ERISA-type benefits" include (1) retirement income to employees or deferred income beyond employment and/or (2) certain other benefits, most notably insurance. Such employee benefit plans are referred to respectively under ERISA as (1) pension benefit plans and (2) welfare benefit plans, with the former having significantly more requirements under the law. Finally, as referenced earlier, no ERISA plan exists without a defined class of beneficiaries that include at least some employees.

Employers should be aware of these rules in order to avoid inadvertently creating an ERISA plan. It is worth noting, however, that because ERISA preempts state law, it is often preferable for an employer to have an ERISA plan depending on the situation. Such questions can be answered by a competent benefits attorney.

Updating Business Names with the IRS

Every business has a name, and sometimes, that name needs to be changed. If the business operates through a legal entity, such as a corporation or LLC, then an amendment to the formation document must be filed with the state in which the entity has been formed in order to legally change the business name.

Doing this, however, does not change the business name on IRS records, meaning the name associated with the unique employer identification number for the business. The easiest way to update the IRS's records with the new business name is simply to use the new name when filing the business's annual tax return and check the box at the top of the front page of the form indicating that the business name has changed. There is no need to reference the old business name on the tax return.

But what if the business needs to change its name prior to the next tax return filing season, or what if the business is a disregarded entity that doesn't file a tax return? The IRS's instructions say to write them a letter; however, the instructions do not indicate what the letter should say, and they leave out an important step.

The most important items to include in a business name-change letter to the IRS are as follows: The EIN number for the business, the old business name, as well as the business address, all of which must match the current IRS records. The letter should explain that the business name has changed, state the new business name, and request that confirmation be sent once the IRS has updated its records.

The letter must be signed by the business owner or corporate officer that appears in IRS records as an authorized individual. According to some IRS agents I've spoken with, even an agent of the business that has a valid Form 2848 on file may not have sufficient authority to sign the name-change letter.

Finally, the business name-change letter should include a copy of the stamp-filed document with the state that effectuated the name change. This is not mentioned as a requirement on the IRS's website, but failure to include this document can result in the IRS declining to make the name change. Sole proprietorships or general partnerships obviously cannot include such a document, but all other business entities should do so. Name change letters currently take about six weeks to be processed; don't wait that long only to have the IRS request additional information.

Estate Planning with Gun Trusts

Gun trusts are in the news this week due to President Obama's executive actions addressing gun violence and new regulations published by the ATF. Despite the fact that purchasing a firearm through a gun trust will be more onerous under the new regulations, the gun trust will remain an important planning tool for persons that own certain firearms.

By way of background, the key federal laws regulating firearms are the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA). Title II of the GCA incorporates provisions of the NFA and regulates certain "dangerous weapons," such as machine guns, that are often referred to as "Title II firearms" or "NFA firearms." NFA firearms are subject to strict registration, transfer, and tax requirements. See Lee-ford Tritt, Dispatches from the Trenches of America's Great Gun Trust Wars, 108 Nw. U. L. Rev. 743 (2014).

Prior to the new regulations, individual applicants could not legally acquire an NFA firearm without completing a transfer form, having it signed by the chief law enforcement officer (CLEO) of the locality where the applicant is located, and providing their photograph and fingerprints with the transfer form. An individual could avoid these requirements by acquiring the firearm through a gun trust (or other entity) as long as the trust had legal existence and the trustee signed the transfer form.

The new ATF regulations eliminate the requirement that the transfer forms be signed by a CLEO but requires all "responsible persons" with respect to a gun trust to submit photographs and fingerprints. In other words, it is now easier for an individual to acquire a NFA firearm but more onerous for a gun trust or other entity.

Nevertheless, a key advantage of titling NFA firearms in a gun trust remains, which is that "more than one person may legally possess" the gun. Otherwise, a household member of an individual NFA firearm owner who knows about the gun and has the ability to access it could be in constructive possession and thereby be committing a federal crime. The laws governing NFA firearms provide for severe criminal penalties that could arise unexpectedly; talk with an attorney familiar with gun laws and gun trusts whenever an NFA firearm is acquired.

50 States' Small Estate Affidavit Forms

All states have a simplified procedure of some kind for transferring the property of a decedent with few assets. For a great summary of these laws, see Joseph N. Blumberg's article, A Survey of Small Estate Procedures Across the Country.

The majority of states allow title to certain property to be transferred by sworn affidavit, without the need for any court intervention or supervision. My objective here is to provide a link to a small estate affidavit form from an authoritative source for each of these states. Where I wasn't able to locate such a form, I included a link to that state's statute or a helpful website. For states that require court intervention or supervision, I tried to do the same thing, but clearly many of these states don't have such a form, and in none of these states would any form be sufficient by itself.

For all states, I hoped at a minimum to include a link to some useful resource for transferring assets from small estates. This post will be updated as better sources become available; please comment below if you come across broken links or better forms or resources than what I currently have:

 Alabama  Illinois  Montana  Rhode Island*
 Alaska  Indiana^  Nebraska  South Carolina
 Arizona^  Iowa  Nevada  South Dakota
 Arkansas*  Kansas  New Hampshire*  Tennessee*^
 California  Kentucky*  New Jersey*  Texas*^
 Colorado  Louisiana#  New Mexico^  Utah
 Connecticut*  Maine  New York*  Vermont*
 Delaware  Maryland*  North Carolina^#  Virginia^
 District of Columbia*  Massachusetts#  North Dakota  Washington
 Florida*  Michigan  Ohio*  West Virginia*
 Georgia^#  Minnesota  Oklahoma^#  Wisconsin
 Hawaii  Mississippi  Oregon^#  Wyoming#
 Idaho^  Missouri*^  Pennsylvania#   

* Affidavit insufficient by itself; a court process of some kind is required.
^ A county-specific form is linked.
# Affidavit may be insufficient; see state statute. State is deemed an "Affidavit Anomaly" by Joseph N. Blumberg due to uniqueness.