If you want to leave your gun in your estate plan in Florida, then using a gun trust is your best option. Although not required by Florida law, a gun trust will allow the use and access of a Title II firearm for your loved ones. It will also make life much easier for you and your loved ones to meet the various state and federal laws.
We welcome you to contact our Florida estate planning lawyers for a free assessment today.
How Can I Leave My Gun in My Estate Plan?
The short answer is, yes – but you’ll have to plan carefully and ideally use a Gun Trust (which is explained further below).
Trying to leave your gun in your estate plan in Florida is complicated. Unlike jewelry or vehicles, you can’t just leave a gun to another person without proper registration and/or permits. More so, the executor of an estate can’t legally transport the firearms to the heir; so they usually will need to contact the police to collect and store the weapons.
Some firearms may also have to be abandoned by the surviving family entirely if the previous owner never properly registered them. This is all due to gun laws.
Read Related: A Guide to Different Types of Trusts in Estate Planning
How Gun Laws Affect Inheritance
There are two types of firearms that are affected by federal and state laws:
NFA (National Firearms Act) or Title II Firearms
- NFA classified Firearms include fully automatic machine guns or short-barreled shotguns.
- They are subject to requirements and regulations that must be followed by law.
- Only the owner of an NFA firearm can possess it.
- It is a felony to give a Title II firearm to a friend or family member (even for transport purposes).
- Illegal transport and transfer of NFA-classified firearms can also lead to federal and/or state offenses.
- “If there are unregistered NFA firearms in the estate, these firearms are contraband and cannot be registered by the estate.”
Non-NFA or Title I Firearms
- Non-NFA Firearms are the most common type of guns in the U.S.
- These guns are mostly restricted by who can possess them.
- Since The Gun Control Act of 1968, it has been unlawful for certain people to ship, transport, receive or possess firearms or ammunition. These include:
- Domestic Violence Criminals
- Those on probation (even misdemeanor probations)
- Users of controlled substances
Use a Gun Trust to Leave Your Gun in Your Estate Plan
As you can see, gun laws make estate planning for a firearm complicated. The answer is a Gun Trust. Gun Trusts ensure your compliance with federal and Florida gun laws when leaving it to your heirs.
- Gun Trusts are legal entities that will hold ownership of the firearm, rather than an individual.
- They are also referred to as ‘NFA Trusts’ or ‘Firearm Trusts’.
- They designate the individual who is legally able to possess and use it.
- Gun Trusts are a type of revocable trust.
- They include provisions that meet Federal Firearm laws and regulations.
- All qualifying trustees can share and use the possession of the firearm.
- The trust can add or remove trustees privately.
- The names of the trustees and beneficiaries can be changed during your lifetime.
- All trustees must not be prohibited persons.
- They must submit paperwork to the government to confirm this and cannot transfer firearm possession out of the trust without complying with state and Federal regulations.
Read Related: Guide for Executors and Trustees in Florida
Gun Trust vs LLC or Corporation
You may have also heard of using an LLC or corporation to leave your gun in your estate plan in Florida. The theory here is that you gain a limited liability, as you do for business lawsuits.
However, corporate shields and limited liability benefits are not for criminal NFA violations.
You would also risk losing your guns as all LLC or corporate assets can be automatically distributed to underlying owners in an administrative dissolution case – which would constitute an NFA violation.
It is almost always advised to use a Gun Trust instead.
The Benefits of a Gun Trust
Gun Trusts also provide many advantages over individual ownership of a firearm:
Multiple Users
- Under normal ownership, multiple owners cannot co-own or share a Title II firearm.
- However, with a Gun Trust, multiple trustees can share the same weapon (if they qualify to do so). Trustees and the grantor (you) can add and remove trustees at any moment.
Legal Sharing
- Under normal firearm ownership, the mere possession of a firearm by friend or family can be a felony.
- Using a Gun Trust can allow for legal sharing of some weapons.
Privacy
- When items are left to be inherited in a will, that information becomes public during the probate process.
- With a Florida Gun Trust, the information remains private as Trusts are private documents.
- Therefore, information about the gun’s existence and who has access to it remains private.
Ongoing Control, After Your Death
- Under normal firearm ownership, you have little to no control over who will have access to the weapon after your death.
- The probate process can even see the firearm get confiscated by the government or a criminal violation of the NFA.
- With a Trust Firearm, you guarantee that it will not enter probate and that you can put in place an ongoing vision for the firearm’s use.
- For example, you can specifically state who you want to oversee the management of the weapon (the trustee), the requirements for its use and who benefits from this (beneficiaries). This could be anything from permitting certain individuals to use it, to stating that you want it sold and the proceeds to be shared with your kids.
Incapacity Provisions
- Gun Trusts also benefit you should you become incapacitated (such as if you are extremely sick, in a coma, or mentally incapacitated).
- The gun trust would allow a successor or co-trustee to legally hold, use and manage the firearms.
Negatives of a Gun Trust
Costs
- Creating a Gun Trust is legally complicated, so you’ll want to hire an experienced Florida trust planning attorney.
- This comes with additional costs, but consider the risks of breaking the law or leaving a mess for your family – it’s worth it.
Complexity
- A poorly drafted Gun Trust can leave a lot of legal problems, including criminal liability and potential family fights.
- It’s very time-consuming to understand, so it’s best to work with a professional.
Limited to Gun Use Only
- Gun Trusts are designed only for firearm use.
- You can’t use them for other assets; you’ll need to set up additional trusts for that.
Law and Regulation Changes
- Firearm laws are susceptible to change, and the Trustee(s) must remain informed about law changes and update the trust and its management to ensure ongoing compliance.
Legal Liability
- Trustees may be found liable for breaking the law if they neglect their responsibilities or aren’t careful.
How to Set Up a Gun Trust in Florida
- To transfer a firearm into a Gun Trust, you must first file an ATF Form and pay a Tax Stamp Fee.
- It is wise to create the gun trust agreement first.
- Then, the first trustee can open a trust bank account.
- If you want to purchase a new firearm, for the trust, then you should contribute enough money to the trust.
- The trustee can then purchase the firearm on behalf of the trust.
- The initial trustees must be ‘responsible people’, with their names listed on the ATF Form 4 Application.
- Each Trustee in the agreement must also complete their own ATF Form 23, individually.
- Each trustee must also submit fingerprint cards and a passport photo.
- Gun Trust documents come with an attached ‘Schedule’, that list the firearms the trust owns.
- If a new Title II firearm is purchased, a new Schedule must be drafted to include the added item.
- New items acquired can be titled in the trust’s name, and transferred to the trust via assignment.
- As a trustmaker, you must provide a copy of the gun trust (including schedules) to the ATF and Class 3 dealers.
- As you can see this is complicated, so it’s always best to consult a Florida estate planning lawyer.
Who Has Access to Firearms Owned in a Gun Trust?
Trustees are the only people legally allowed to access trust firearms. As a trust creator, you can add and remove trustees throughout your lifetime. And the successor trustee can do the same, after your death. Of course, all trustees must be qualified to be a trustee and be in possession of a firearm.
Can I Put Non-Title II Firearms in a Gun Trust?
- A gun trust can own any type of firearm.
- However, it’s wise to have a separate trust for Title II firearms to keep your Title I firearms free from any technical NFA violation caused by a Title II weapon – as that could potentially forfeiture of your Title I firearm.
Can I Loan a Trust-Owned Firearm to Someone?
- You can let a friend use a Title II Firearm, owned in a trust, under your direction and while in your presence – you must be next to them at all times.
- You must have your tax stamp on you while others are using the firearm.
- Handguns owned by a trust can be freely shared with other people.
Disclaimer: The information in this blog is for introductory purposes only. Always work with an experienced Florida estate planning lawyer to ensure you meet all of the strict Federal and State laws and rules.
Contact a Pinellas County Trust Planning Lawyers
If you’re looking to leave your gun in your estate plan in Florida, then our Pinellas County estate planning lawyers can help. We regularly help Floridian families include high-value assets, including firearms, into their estates via trusts.
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Battaglia, Ross, Dicus & McQuaid, P.A. is U.S. News and World Reports Tier 1 law firm in Florida, specializing in Estate Planning & Probate since 1958. With award-winning experienced attorneys, they can help you start and complete the probate process or tackle any probate litigation issues.
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