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Old March 26, 2013, 02:52 PM   #1
CurlyQ.Howard
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Giving or Gifting Firearms

If a father (still very much alive) were to declare, "I'm giving my firearms to you, son.", without providing written proof of ownership transfer to the son, wouldn't the father really still possess the firearms - even if the father lived in a different residence from where the firearms were stored? Thanks for your help on this one.
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Old March 26, 2013, 03:12 PM   #2
AK71
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I'm certainly no lawyer but oral contracts can be binding in some cases. Paperwork is often only necessary for tax/financial reasons. I'm not sure what your goal is, but a gift of firearms in excess of $14000 in a given year (was less prior to 2013) would technically be a taxable event - unless there was a spouse co-gifting.
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Old March 26, 2013, 03:13 PM   #3
Spats McGee
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The short story: It depends. Who actually has the guns?

The longer story: You asked:
Quote:
Originally Posted by CurlyQ.Howard
. . . . wouldn't the father really still possess the firearms[?] . . . .
Possession is different from ownership. I own a car. I can hand you the keys to my car so that you can drive down to the Piggly Wiggly to get some bread. During the period when you go to PW, I still own the car, but you possess the car.

On the other hand, if you are actually asking who owns the guns, then ownership can be accomplished in most states by the father simply handing them over and saying "I'm giving my firearms to you, son."

Now, if the father lives in a different state of residence, then you've got a problem on your hands, as that transfer must involve an FFL.
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Old March 26, 2013, 03:15 PM   #4
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Ownership and possession are different concepts under the law. Your post is somewhat unclear regarding which is which.

Are the (presumably hypothetical) firearms physically located at the son's residence, the father's residence, or at the residence of an unnamed third party?

Will the transfer of possession occur while the father is alive, or once he passes away?

Do the father and son reside in the same state?

Does the state- or either state, if they're different- require registration of firearms? (Please note that the Form 4473 that you fill out at the gun store is NOT legally considered to be a form of registration.)

[EDIT] I see that Spats beat me to it re: ownership vs. possession.
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Old March 26, 2013, 03:20 PM   #5
ScottRiqui
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Just to add to the potential questions - is the son old enough to legally own (not just possess) the firearms?
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Old March 26, 2013, 03:31 PM   #6
carguychris
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One more potential question...

Does this question pertain to a verbal bequest- e.g. while he is alive, the father says that he intends for the firearms to be given to his son, but this bequest is never written down?

If so- the ownership question is best answered by a lawyer familiar with the laws of the specific state(s). This can be a very complex and difficult question to answer in some cases.
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Old March 26, 2013, 03:33 PM   #7
buck460XVR
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If a father would declare...."I am giving you these guns" and afterward the guns were in the son's possession, why would the father even think he still possessed the firearms? Does he want them back? Is the son prohibited from possession and the guns seized? I have firearms that were given to me my grandparents and my father before they passed and were in my possession. After they died, there was no question as to legal ownership, even tho there was no written record of their transfer. Guns that were at thier residences when they passed, even tho they told me that someday the guns would be mine, if they were not given to me in the will, I had to either buy them at the estate auction or have them included in my share of the estate.
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Old March 26, 2013, 03:44 PM   #8
CurlyQ.Howard
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I'll clear it up: Before a judge declared that marital property was to be divided between husband and wife (and the guns are located in the family home), father told adult son that he would one day inherit the firearms. Now that marital property is to be evenly divided, the father suddenly has said the guns are the son's. What's to keep the father from claiming the guns are still his once the divorce is final?
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Old March 26, 2013, 03:45 PM   #9
Spats McGee
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Well, that changes things. "One day you'll inherit" is an entirely different kettle of fish from "I'm giving you."
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Old March 26, 2013, 04:44 PM   #10
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Quote:
Originally Posted by Curly Q. Howard
I'll clear it up: Before a judge declared that marital property was to be divided between husband and wife (and the guns are located in the family home), father told adult son that he would one day inherit the firearms. Now that marital property is to be evenly divided, the father suddenly has said the guns are the son's. What's to keep the father from claiming the guns are still his once the divorce is final?
Doesn't really clear anything up, but it does help us zero in on an answer.

As Spats already commented, "One day you'll inherit" is very different from "I'm giving you." At this stage, the guns are still the father's.

Now the father goes into court and says, "I gave the guns to my son." Firstly, it would appear (based on just the facts you've provided) that the father is perjuring himself. But ... if that isn't challenged or isn't shown to be a falsehood in front of the divorce judge, then it would appear the father has formally declared for legal record that he "has" (meaning previously, in the past) given his guns to his son. So now the guns belong to the son, according to the father's own sworn statement. (I'm assuming such a statement would have to be sworn.)

Then you ask what's to prevent the father from reclaiming the guns after the divorce is final. My guess would be that if he were to do so, the ex-wife would have him back in court to answer for perjury and/or making false statements. He stated to the court, as evidence in a legal proceeding, that he previously gave away the guns. IMHO he would be a fool to subsequently try to claim they are still his.

But ... foolish people find themselves in divorce court. I should know ...
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Old March 26, 2013, 04:46 PM   #11
CurlyQ.Howard
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Thanks for your responses. I'll be passing this along.
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Old March 26, 2013, 05:01 PM   #12
lcpiper
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Spats, can you shed some more light on this, is it based on the act of having them shipped by mail, or transfer across State lines?

I think specificly my question is, unless there are State laws saying otherwise, why couldn't he just drive over and pick them up, and drive them to their new home?

Quote:
Now, if the father lives in a different state of residence, then you've got a problem on your hands, as that transfer must involve an FFL.
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Old March 26, 2013, 05:19 PM   #13
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Lcpiper, the short answer is "because it's against the law," if it's a transfer between people who reside in different states.

From the ATF regulations on private transfers:
An unlicensed individual is prohibited from directly transferring a firearm to a person residing in another State. Regardless of the purpose of the transfer (e.g. gift, trade, loan, sale, ownership, etc.), this restriction applies to all types of firearms.

An unlicensed individual may complete a transfer to an out-of-State person through the following procedure:
  • The unlicensed individual transfers the firearm to a Federal Firearms Licensee (FFL) located in the State of the person receiving the firearm.
  • The FFL will transfer the firearm to the unlicensed out-of-State person.
  • The FFL will be responsible for lawfully transferring the firearm.
If both parties live in the same state, there are no federal laws against a direct transfer.

However, in either case, there may be state laws restricting how such transfers can be done.
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Last edited by Vanya; March 26, 2013 at 05:26 PM.
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Old March 26, 2013, 05:50 PM   #14
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lcpiper, Vanya pegged it. The basis for the ATF regs linked in the preceding post can be found at 18 USC 922.
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