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View Full Version : For those interested in trusts in order to own NFA weapons


Bartholomew Roberts
January 27, 2009, 10:00 PM
If you could consult a professionally licensed attorney and have them set up a trust only for NFA items for $300, would that interest you?

The fee would include a 30 minute consultation to make sure that the trust met your needs and a 30 minute discussion of trust issues and BATF rules and regulations. You would receive what is essentially a form trust for your state that was created with the specific purpose of being used for NFA firearms.

The main advantage over the Quicken Willmaker route would be that you would have 30 minutes with an attorney to discuss the trust and help determine if there were any problems that might affect your choice of a trust. The trust would also be specifically designed around ownership of NFA weapons instead of the more general purpose trusts found in Willmaker (although that difference is probably not very dramatic).

The $300 would cover a straightforward trust with only NFA weapons as property where there weren't any extenuating circumstances. If there were extenuating circumstances that popped up during the 30 minute consultation, you would learn of it then and have the option to walk without paying anything or have something more specific created for your needs (at a higher price though).

Wildalaska
January 27, 2009, 10:39 PM
That would be a huge waste of money IMHO. Trust documents for NFA items are so simple as to be farcical, and if a trust is needed to preserve or protect other assets, a $300 consult isnt going to do it, you will need an estate planner.

I have a 2 page simple NFA trust form myself

WildjustmyopinionAlaska TM

jmorris
January 28, 2009, 09:54 AM
I would have to agree, my trust is 12 pages and I have a “fill in the blank version “that goes out to our club members for a case of cold ones. Additional consulting is free if they are on ice. I’ve only had mine used in Texas as laws vary from state to state.

Bartholomew Roberts
January 28, 2009, 11:44 AM
Admittedly, the trust documents are fairly simple items that probably don't justify the $300 when you can buy Willmaker for $75. The value as I see it would be in the consulting. You'd have a better understanding of things not to do (like list yourself as settlor, trustee AND beneficiary) and the discussion might point out some legal issues that you otherwise wouldn't have considered.

Wildalaska
January 28, 2009, 12:03 PM
You'd have a better understanding of things not to do (like list yourself as settlor, trustee AND beneficiary)

And the problem with that is? For NFA items?

WilditmayhaveotherramificationsAlaska TM

aroundlsu
January 28, 2009, 12:13 PM
A lot of first time NFA buyers would probably go for it. I've seen guys in my community consider shelling out $500+ for some "NFA Attorney" until we talked them out of it.

If they are first time buyers you might also want to consult with them on the responsibilities of NFA weapons such as not leaving it unsecured, not taking it to forbidden states, not shooting anyone with it, and other things that could get them and the rest of the community in serious trouble.

Wiskey_33
January 28, 2009, 01:32 PM
x2 on WA's statement.

Bartholomew Roberts
January 28, 2009, 02:10 PM
And the problem with that is? For NFA items?

The problem with that is that it creates an invalid trust under Texas state law (and the law of most other states). Because you have created taken all of the "bundle of sticks" that the settlor has and essentially given it back to the settlor, the law of most states ignores the trust and pretends as though it never existed since the same individual still has all of the powers.

Had the settlor named a different trustee or beneficiary, some of the settlor's initial powers would be vested in another person and the trust would be valid.

Which brings us to another area where consultation might be helpful - if you have to vest at least some of your rights/powers in another person... Who is best suited to do that and what are the implications of listing them as beneficiary or trustee?

Wiskey_33
January 28, 2009, 02:20 PM
the law of most states ignores the trust and pretends as though it never existed since the same individual still has all of the powers.

How can the law void/ignore a legal document? Who's to say that the document wouldn't be "ignored" if the beneficiary/trustee was someone other than myself?

Wildalaska
January 28, 2009, 02:23 PM
The problem with that is that it creates an invalid trust under Texas state law (and the law of most other states). Because you have created taken all of the "bundle of sticks" that the settlor has and essentially given it back to the settlor, the law of most states ignores the trust and pretends as though it never existed since the same individual still has all of the powers.

Thats the difference between a revocable and irrevocable trust.

WildtoobusytolookitupAlaska ™

Bartholomew Roberts
January 28, 2009, 03:33 PM
How can the law void/ignore a legal document?

If the document doesn't comply with state law, then it isn't legal. A trust is a special entity recognized by the state with legal rights much the same as an individual would have. The state is under no obligation to recognize corporations or trusts that don't comply with their laws.

Who's to say that the document wouldn't be "ignored" if the beneficiary/trustee was someone other than myself?

I don't know Alaska state law, so I can't comment on that. In Texas, you would be able to enforce your trust in court as long as it complied with the law. In Texas, a trust can only be created in the following ways:

"Sec. 112.001. METHODS OF CREATING TRUST. A trust may be created by:

(1) a property owner's declaration that the owner holds the property as trustee for another person;

(2) a property owner's inter vivos transfer of the property to another person as trustee for the transferor or a third person;

(3) a property owner's testamentary transfer to another person as trustee for a third person;

(4) an appointment under a power of appointment to another person as trustee for the donee of the power or for a third person; or

(5) a promise to another person whose rights under the promise are to be held in trust for a third person."

As you may have noticed, the "to another person" language is in every aspect of the statute allowing for the creation of a trust.

Thats the difference between a revocable and irrevocable trust.

No, the difference between a revocable and irrevocable trust is that a revocable trust allows the settlor to name a new beneficiary at any time. An irrevocable trust is irrevocable and the beneficiary cannot be changed. As I said, I can't speak for every other state in the Union; but the "settlor/trustee/beneficiary" cannot all be the same person rule typically applies whether the trust is revocable or irrevocable.

The irrevocable trust has certain tax advantages; but is generally a really bad idea (IMO) for NFA items if you plan to actually use them instead of just collect them.

Wildalaska
January 28, 2009, 03:36 PM
a property owner's declaration that the owner holds the property as trustee for another person;

So in texas you can be settlor and trustee, yes.

Mine is simple. Im the settlor and trusteee. SWMBO is the co trustee and benificiary.

WildcheckyourstatelawsAlaska ™

Wiskey_33
January 28, 2009, 03:37 PM
So, back to the original point of this thread, why would one waste a single minute of their time, not to mention $300, if the state could just void a trust when they see fit?

How would a trust be written so that it couldn't be "ignored" by the state?

If a trust were to be written as "PeeWee Herman Revocable Living Trust", why would "Homer Simpson" be a trustee of Pee Wee's NFA items?

Bartholomew Roberts
January 28, 2009, 04:06 PM
So, back to the original point of this thread, why would one waste a single minute of their time, not to mention $300, if the state could just void a trust when they see fit?

First, the state cannot just void a trust when they see fit. In order to be a legal trust, the trust must comply with the laws of that state. Usng a form trust, it is easy (especially if you do not know the laws), to create a trust that is not valid in your state.

How would a trust be written so that it couldn't be "ignored" by the state?

You write it to comply with your state's laws.

If a trust were to be written as "PeeWee Herman Revocable Living Trust", why would "Homer Simpson" be a trustee of Pee Wee's NFA items?

Typically, Pee Wee Herman would be the trustee and Homer Simpson would be the revocable beneficiary who would take Pee Wee's NFA items after his death. This allows Pee Wee to control and manage those items during his lifetime, although he does owe a duty to Homer to manage those items well. Of course, if Pee-Wee really trusted Homer, maybe he would appoint him Trustee. There are pluses and minuses to every scenario.

As for whether it is worth $300, did you learn much from this thread? We just covered the very basic, basic issues of trusts that you could learn off the Internet so far. If you could get a better education on both trusts and NFA laws and have the documents drawn up all nice and pretty by a professional with malpractice insurance, some people might regard that as a worthwhile investment.

I'm just kind of curious how many would regard it as a worthwhile investment - though part of that means talking with people about trusts for free so they can get an idea of the things they might not have considered.

Mine is simple. Im the settlor and trusteee. SWMBO is the co trustee and benificiary.

A simple enough solution that would work 90% of the time or better. To give an example of how a consultation might be beneficial though, have you considered what might happen in a divorce? Have you looked at your state's laws on removing a co-trustee and what that might entail legally? To me, this is the type of "Hey, have you thought about this?" where your lawyer earns (or doesn't in some cases) his money and shows why he can't be completely replaced by a computerized form library.

jmorris
January 29, 2009, 10:37 AM
if you have to vest at least some of your rights/powers in another person

I think that would be a bad idea. I have three incapacity members and none of them are successors of the trust.

Don’t you remember, you never leave all your eggs in one basket.

Bartholomew Roberts
February 4, 2009, 04:15 PM
I think that would be a bad idea. I have three incapacity members and none of them are successors of the trust.

My point, though perhaps not clearly stated, was that the very nature of a trust requires you to take some of your rights and powers and vest them in other people. In this case, you have vested some of your rights in the incapacity members and the beneficiary of the trust. In a revocable trust, this is generally not a big issue; but since you are creating rights and duties and spreading them among more than one person, it pays to pay attention to the details and determine what works for you.

As for this proposal, it doesn't look like there is enough interest to make it worth my while. That is the great thing about being a lawyer though. If people won't pay for your advice to stay out of trouble, they'll pay even more later to have you get them out of the trouble they found.

Bartholomew Roberts
May 6, 2009, 01:01 PM
An excellent article by David Goldman (a member here) dealing with some of the problems in using form trusts from Quicken or Legal Zoom:

http://blog.princelaw.com/2009/3/3/can-i-use-quicken-will-and-trust-maker-for-my-gun-nfa-trust

KChen986
May 9, 2009, 11:52 AM
All,

I'm taking estates & trusts next semester, so I'll probably revise my post. But so far, property law, of which trusts are a part of, stems from arcane rules of English Common law. As a result, property law tends to be highly technical, such that, if you make a trust which does not comport to some technical specifications, the court will do it's best to interpret the trust consistent with those technicalities. At times, it may come out the way you intended; other times it may not. Hence the need for a attorney. Hopefully, one never will need an attorney, but should problems ever arise (i.e. someone disputes the trust) then you had better hope your trust follows state laws.

Ryndisher
May 9, 2009, 08:50 PM
whoops wrong topic