The NFA requires registration of ("restricts") the following classes of firearms ("the sexy six"): short-barrel rifle; short-barrel shotgun; machine gun; a silencer; a destructive device; and any other weapon. A National Firearms Act, or NFA-compliant trust, allows a Grantor to transfer firearms upon his or her death without requiring beneficiaries to reregister their firearms following the Grantor's death. Below are examples of key issues to be weary of when compiling information for a NFA-compliant trust.
- BENEFITS: A properly drafted NFA-compliant trust will accomplish the following:
- Legality - will help avoid accidental felonies (i.e. sharing, loaning or conveying firearms to a prohibited person) by stating in advance whom may access the trust corpus.
- Privacy - Probate is avoided. Also, Individuals may register a NFA firearm under their trust name, avoiding the requirement for beneficiaries of the trust to re-register a firearm in their own name; therefore enabling them to easily enjoy the trust property. Registration requirements include the identification of the firearm, the date of registration and the identification and address of the person entitled to possession of the firearm.
- Control - The Trustee of a gun trust is the only person legally allowed to possess an NFA firearm. However, the Trustee is not the only person who may benefit from the gun trust. A Trustee may provide access and use to the following persons, provided they are not prohibited persons as defined by law: the grantor, family members, roommates, visitors, guests, or share at a gun range.
- PROHIBITED PERSON: The grantor, trustee and beneficiary of a NFA-compliant trust CANNOT be a prohibited person!
- 18 U.S.C. §922(d) deems it unlawful for a person to possess, or any other person otherwise to dispose of any firearm or ammunition to a person knowing or having reasonable cause to believe that that person is: under indictment for, or convicted of, a felony; a fugitive from Justice; unlawful user of, or addicted to any controlled substance (even if the State allows such use, i.e. marijuana); adjudicated as mentally defective or has been committed to any mental institution; an Illegal Alien; an Alien who is in the US under a non-immigrant visa; discharged from the Armed Forces under dishonorable conditions; an Expatriate who, having been a citizen of the US, has renounced his/her citizenship; subject to a restraining order; convicted of a misdemeanor crime of domestic violence (as per the Violence Against Women Act); or under 21 years old for NFA firearms and 18 years old for non-NFA firearms.
- CONFLICTING LAW: This may be the most important tip of all - Not all cities and states are the same when it comes to firearms ownership! It is extremely important to check your state and local law to determine what firearms your client may legally possess in his or her home state.
Jessica M. Powers is an attorney with the New Hampshire law firm Forman, Clark & Associates, P.A., practicing in all aspects of estate and asset protection planning and business planning. Jessica has helped co-author published articles and textbooks used in the legal community on matters relating to estate planning, long term care planning and business law. She routinely gives seminars on these topics.
Institute for Paralegal Education • 1218 McCann Drive • Altoona, WI 54720 • © 2016, Institute for Paralegal Education, a division of NBI, Inc. All Rights Reserved.