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.