One piece of any estate plan that requires attention is the ownership of firearms. Due to the interplay of state and federal law governing firearms, we must carefully examine the different types of firearms, who can possess them, how to transfer them, and estate planning considerations.
Firearms laws can be placed into two general categories. First, federal firearms laws and second, Maryland State firearms laws.
At the federal level there are two further distinctions: conventional and National Firearms Act (NFA) Regulated firearms. Conventional firearms are: rifles of all varieties that are not machine guns with a barrel length greater than 16” and an overall length greater than 26”, shotguns with a barrel length greater than 18” and overall length greater than 26” and handguns that do not fall into the “any other weapon” category of the NFA. The NFA regulates NFA regulated firearms and permits purchases to be registered in the individual purchaser’s name, a trust, or LLC.
Firearms that fall under the NFA include the following:
1) Short Barreled shotguns (barrel less than 18 inches, and/or overall length less than 26 inches)
2) Short barreled rifle (barrel less than 16 inches and/or overall length less than 26 inches)
3) Destructive devices
a. Explosive ordnance
b. Large bore firearms (greater than 50 caliber)
4) Suppressors or silencers
5) Any other weapon defined as “any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, other than a handgun with a rifled barrel”
In Maryland the law creates 3 categories, unregulated, regulated, and banned. Unregulated firearms include single shot and bolt action rifles, shotguns, and some semiautomatic rifles. Regulated firearms in Maryland include handguns. Banned firearms are those outlined in Md. Ann Code Criminal Law Article §4-302, and Md. Ann Code Public Safety Article §5-101. The ban on these does not apply if the person who possesses a banned firearm, lawfully possessed, has a purchase order for, or completed an application to purchase the firearm before October 1, 2013.
Once we are able to determine what type of firearms a person possesses we can then look to planning opportunities. The answer will lie both in the type of firearm and the intended recipient.
For regulated firearms one of the first questions is: is the personal representative a prohibited person? Then, is the person inheriting a prohibited person? A prohibited person is someone who cannot possess a firearm under both Federal and Maryland law, typically due to a criminal background, or certain mental health and/or age requirements. If the answer to both of those questions is no, then you can proceed with the proper avenues to transfer the firearm. You must then look to the classification of the firearm. If the firearm is an NFA regulated firearm, you will need to complete the requisite forms with the ATF. If the firearm is a machine gun under the federal law, then you will also need to notify the Maryland State Police of machine gun possession. If the firearm is a Maryland regulated firearm you will need to submit and have approved form 77R with the Maryland State Police. If the firearm is a handgun, the recipient will need a Handgun Qualification License.
It is also possible to have a trust purchase and hold title to a firearm. This is alternative to traditional gun ownership. However, these trusts come with a host of legal and regulatory issues and recent regulation has made these types of “gun trusts” more difficult to administer. If you currently own any of these firearms, or anticipate needing to settle an estate with firearms, it is important to discuss any additional planning you may need, with your estate planning attorney.
For more information, visit www.sinclairprosserlaw.com.