Gun Owners and Estate Planning

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Last year a Deseret News/Hinckley Institute of Politics poll of registered Utah voters found that 53% have a gun in their home. Firearm ownership is common in Utah.  Because of the nature of firearms, there are several special considerations that apply to guns that do not apply to other types of personal property when transferring them to the next generation.

There are two primary issues that must be addressed in estate planning documents for owners of firearms.  The first issue surrounds who will have possession of the firearms.  The second issue concerns whether any of the firearms are regulated by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) under the National Firearms Act of 1938.  Providing information regarding both of these issues can prevent a gun-owner from committing an “accidental felony” in the transfer of gun ownership.

First, who will receive the firearms?  Federal law prohibits certain people from owning a firearm, including felons, fugitives from justice, drug addicts, and “mental defectives” to name just a few.  Moreover, some states have restrictions on certain types of weapons, so residents of those states should not be bequeathed a restricted weapon. Additionally, the people you name to act in a fiduciary capacity as your personal representatives and trustees should be knowledgeable about firearms and should not live in a state where your particular type of firearm is illegal.  If your fiduciaries are not knowledgeable about firearms, then they may underestimate the value of your weapons and/or fail to care for them and store them properly.

Next, certain firearms are restricted by the NFA.  The NFA governs the registration, possession, and transfer of machine guns, short-barrel rifles, short-barrel shotguns, silencers, destructive devices, etc.  The ATF keeps registration records for NFA weapons and it is a crime to own such a weapon if it is not registered.  NFA weapons require special planning considerations at death since constructive possession of them by anyone other than the registered owner or their legal representative (i.e., their personal representative or trustee) is a crime.

It is important for gun owners to consider their firearms in their estate plan to avoid the potential transfer of a firearm to a prohibited person and to properly transfer NFA weapons.  If you would like more information, please don’t hesitate to call me at 801-874-4546 to schedule a free consultation.  I am an estate planning attorney in Spanish Fork, Utah.  While my office is in Spanish Fork, I provide estate planning services in Utah County and beyond.


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