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Old September 21, 2020, 07:25 PM   #1
gaseousclay
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Hypothetical question re: guns if you died

Hypothetically speaking, does anyone know the laws surrounding gifting firearms to friends/family in the event you died? My ex-wife is anti-2a, so that’s out of the question and my child is only 7 which is also out of the question.

I’m talking specifically about semiautomatic firearms like an AR or handgun. I have a friend that is an AR and handgun owner, so he’s the only person I know I’d consider gifting my guns to. I’m assuming you’d have to bring the firearms into an FFL and transfer the guns that way? Only reason I’m asking is that my brother had a stroke today so it made me question my own mortality. I don’t have a will so I’ve been thinking about what happens to my stuff after I kick the bucket. I probably should get a will to be safe, but wanted to know if any of you have experience with this sort of thing. Obviously I’d want things to be done legally.
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Old September 21, 2020, 07:48 PM   #2
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You need to get the will done for a lot more than just your guns; what type and how you set things up are best discussed with your financial guy and family attorney.

Guns mentioned in your will can be transferred to the designee without a FFL involvement; that said, some state laws may require different things.
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Old September 21, 2020, 09:05 PM   #3
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Federal law allows firearms inherited through bequest (stipulated in a will) or by intestate succession (the owner dies without a will) without having to go through an FFL -- even for interstate inheritance. However, as FITASC has noted, state laws may interfere. For example, if an heir lives in a state that doesn't allow the purchase of AR-15s or other so-called "assault weapons," then the executor can't transfer such firearms to the heir -- period.

Please brush up on your terminology. If your firearms are transferred after your death, it is not a "gift," it is an "inheritance." If you transfer some (or all) of your firearms to friends while you are alive, that's a gift. If you draw up a will and stipulate that certain firearms go to certain friends -- that's a bequest.

If you die without a will, then your entire estate (including any firearms you own) will be distributed in accordance with your state's laws on "intestate succession." This probably means that everything will go to your child.

Considering the circumstances you have described, you really need to have a lawyer either draw up a will, or create a trust for you. Which would be better for you is something you should discuss with an estate planner.
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Last edited by Aguila Blanca; September 21, 2020 at 11:35 PM. Reason: typo
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Old September 21, 2020, 09:22 PM   #4
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Another thing, make sure your wife does not sell them for the price you “said you paid” wink, wink.

Sorry to hear about your brother gaseousclay. I hope he makes a full recovery.
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Old September 22, 2020, 03:40 AM   #5
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Each state laws differ on inheritance or transfer of guns. If you are in a 2A friendly state, a close friend who will keep and store those for your child when he/she comes of age is probably the best way to keep them from being liquidated or destroyed after you die.
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Old September 22, 2020, 06:40 AM   #6
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Quote:
Federal law allows firearms inherited through bequest (stipulated in a will) or by intestate succession (the owner dies without a will) without having to go through an FFL -- even for interstate inheritance. However, as FITASC has noted, state laws may interfere. For example, if an heir lives in a state that doesn't allow the purchase of AR-15s or other so-called "assault weapons," then the executor can't transfer such firearms to the heir -- period.

Please brush up on your terminology. If your firearms are transferred after your death, it is not a "gift," it is an "inheritance." If you transfer some (or all) of your firearms to friends while you are alive, that's a gift. If you draw up a will and stipulate that certain firearms go to certain friends -- that's a bequest.

If you die without a will, then your entire estate (including any firearms you own) will be distributed in accordance with your state's laws on "intestate succession." This probably means that everything will go to your child.

Considering the circumstances you have described, you really need to have a lawyer either draw up a will, or create a trust for you. Which would be better for you is something you should discuss with an estate planner.
Thanks for the info and for the clarification on terminology. I honestly wasn't sure how to categorize these things as I haven't really thought of it before. But yes, i'll look into the state laws here and consult with a lawyer down the road.
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Old September 22, 2020, 08:02 AM   #7
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And without a will, the odds are your estate will need to go through probate. When my mom died, everything that was not TOD (financials) or stipulated in the will had to go through that process; in SC, that was a minimum of 8 months and a lot of paperwork
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Old September 22, 2020, 11:13 AM   #8
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The best codicil to add to your will or trust is that NOTHING goes to anyone you haven't seen or talked to in the past 6 months.
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Old September 22, 2020, 12:45 PM   #9
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Originally Posted by FITASC
And without a will, the odds are your estate will need to go through probate.
With a will the estate still has to go through probate. One of the factors in support of establishing a trust is that it can help avoid probate.

In the case of the OP, if he dies without a will I would expect that his entire estate would go to his child. If the child is a minor, living with the mother (the OP's ex-wife), that would effectively leave the ex-wife in control of everything until the child reaches the age of majority. Creating a trust would allow the OP to designate a person or entity of his choice to control the assets of his estate until the child reaches whatever age he (the OP) stipulates -- and that doesn't have to be 18 or 21, it could be 25, 30, or whatever.

But -- a word of caution. Several years ago I fell into the trap of being persuaded by an adult education class that it would be better to set up a trust than to have a will. The class, of course, was taught by an attorney whose specialty happened to be setting up such trusts. So I went to him. What transpired was that he spent an hour with me. After that, he basically had his secretary plug my name into a standard trust document template he had created. They e-mailed me the document -- something like 80 or 85 pages of legal gobbledygook -- on a Friday, and wanted me to come in on Monday to sign it. I responded that I needed a lot more time to even begin to digest it, and that I expected I would have questions.

The answer was that another meeting to answer questions was going to cost more. That wasn't included in the lump sum fee of $3,500 he charged for typing my name into the template.

Further, the document only created the empty shell of a trust. The trust created by that document didn't have anything in it -- it would then be left to me to transfer my assets into the trust. The lawyer would, of course, be happy to advise and assist -- at an additional cost of $350 per hour for his help.

At that point, I ended the process. I still had to pay him the $3,500, but I was going through major health issues, my wife had just died and I was going through issues with our [adopted] daughter, and I just wasn't in a place where I could deal with all the extra work the trust would have created. In the end, I drew up a will, had it notarized, and gave copies to my executor and alternate executor and that was that. Yes, the will is going to have to go through probate. I'll be dead, so it won't matter to me.

My guns will be distributed as stipulated in the will.
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Old September 24, 2020, 06:58 AM   #10
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Quote:
Originally Posted by gaseousclay
Hypothetically speaking, does anyone know the laws surrounding gifting firearms to friends/family in the event you died?
What will the law in the pertinent states be when you die? Right - I don't know either.

The person who will know or have the ability to find out will be the executor of your estate or your designated successor trustee. If you are really worried about your property after you pass, you need to think about what you want to happen and find an attorney who practices in that area and who will:

1. listen to what you want,
2. draft the documents that achieve that, and
3. explain to you how the documents he drafted do that.

He should also provide to you documents about your healthcare decisions in the event you aren't in a position to make them yourself.

Your arrangements will merit some revision as you age. You need the documents you ultimately sign to be somewhere they can be found if you are hit by a bus.
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Old September 24, 2020, 09:11 AM   #11
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And remember to record the will with your state officials; doing one from one of these kits and not filing it is no different than writing a note in a book.
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Old September 24, 2020, 11:07 AM   #12
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And remember to record the will with your state officials; doing one from one of these kits and not filing it is no different than writing a note in a book.
???

I've never heard of recording a will with a state official. What state official would that be? In my state, a will has to be signed in the presence of a notary public AND witnessed by three witnesses, all of whose signatures are also notarized. After that, it just sits around until the person dies, at which time the executor submits the will to the probate court having jurisdiction. After a review, the judge of probate certifies the executor, and the executor then proceeds to settle up the estate in accordance with the terms of the will.
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Old September 24, 2020, 11:20 AM   #13
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Quote:
I've never heard of recording a will with a state official. What state official would that be? In my state, a will has to be signed in the presence of a notary public AND witnessed by three witnesses, all of whose signatures are also notarized. After that, it just sits around until the person dies, at which time the executor submits the will to the probate court having jurisdiction. After a review, the judge of probate certies the executor, and the executor then proceeds to settle up the estate in accordance with the terms of the will.
Its been several years, but I executed my mother's estate and that was how it went. The state didn't see the will until the judge saw it.
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Old September 24, 2020, 02:53 PM   #14
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In some places, one can file his will with a government office. In my state, I can file my will with the probate court itself. This saves family running around looking in likely hiding and storage spots both before and after death. Lots of hyjinx can ensue when, prior to death, a family member finds a will that he thinks treats him unfairly.

In my area, it is also common for people to leave their wills with their attorneys. When father passes, you call his lawyer to see if that's where the will is.

Neither is a requirement. Those documents can be kept in a safe, safe deposit box, or sock drawer, and submitted to the court with the executor's application, assuming it can be found.
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Old September 24, 2020, 04:41 PM   #15
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Quote:
I've never heard of recording a will with a state official. What state official would that be? In my state, a will has to be signed in the presence of a notary public AND witnessed by three witnesses, all of whose signatures are also notarized. After that, it just sits around until the person dies, at which time the executor submits the will to the probate court having jurisdiction. After a review, the judge of probate certifies the executor, and the executor then proceeds to settle up the estate in accordance with the terms of the will.
My mom's will was recorded with the County in SC where she lived and given an official recording number. Setting up a living will needs to be recorded, this allowed almost everything to bypass probate.
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Old September 24, 2020, 08:15 PM   #16
Grant 14
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For firearms to pass thru a will or trust and not go thru an FFL, would that require that they be mentioned in a trust or listed by serial number or whatever? My trust just gives everything to my son and I had always assumed firearms were not a problem to inherit. I dont have any AR type weapons or anything else that scares normal people, but I do live in California where we have more laws than most states. We dont have to record trusts (only notarize) so no court is involved, only the county recorder when changing deeds. I am glad I ran across this thread. Grant.
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Old September 24, 2020, 09:24 PM   #17
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Originally Posted by FITASC
My mom's will was recorded with the County in SC where she lived and given an official recording number. Setting up a living will needs to be recorded, this allowed almost everything to bypass probate.
A living will has nothing to do with bypassing probate, or with distributing your assets after you're gone. A living will is about making health care decisions while you are alive but unable to make decisions for yourself. Maybe living wills have to be recorded somewhere in your state. In my state, they don't. I have mine on file at the VA hospital, with copies to my cardiologist, my non-VA primary care physician, and the friend who is named as the person who can make decisions for me if I am unable to do so.

https://www.daveramsey.com/blog/what-is-a-living-will

Wills go through probate. To bypass probate you need a trust. Trusts are beneficial for some people, and not for others. The decision between a will and a trust should be made in consultation with an attorney and an estate planner. (See post #9 for caveats regarding this.)
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Old September 25, 2020, 07:50 AM   #18
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I don't worry about the Government's rules. My firearms will go to whomever I Will them to.
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Old September 29, 2020, 07:57 PM   #19
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Take some pictures of guns/holsters etc, get printed. On the back write S/N and other pertinent data along w/ suggested value..

Give set to someone trusted and encourage them to sell for you. Make sure wife/child (in a few yrs) understand the position.

Check w/ your state rifle/pistol or other gun assn for laws at that time regarding sales/gifts of said guns. Might ask lawyer about mentioning in will(s).

List one of the guns as a gift for friend doing transfers...
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Old September 30, 2020, 02:24 PM   #20
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Know your local laws / Consult a lawyer

The only generic and semi-useful advice that can be given here is: (1) know your local laws; and (2) consult a lawyer.

Federal law allows for the interstate transfer of firearms by a specific bequest. That said, there are a couple of pitfalls that I can see. Wills and bequests are mostly State-level matters, so the bequest would have to comply with local State law. If I leave someone a firearm as a bequest in a will, and the firearm has to go interstate to that person, I don't want anyone jammed up because my will wasn't right. If it's not, and it amounts to an invalid bequest, then there is some chance (however small) that the feds could charge the recipient with an illegal interstate transfer of a firearm.

The second problem is that the firearm has to comply with the recipient's State laws. If I had a brother in NY, and wanted to put him in my will to receive my AR (which I'm betting would run afoul of the SAFE Act) upon my death, that's too bad. He can't have it. The transfer might be permissible under federal law, but his possession of it would not be (at least, not without a metric ton of paperwork, or mods to make it NY-compliant).

There may also be State law matters that attend to all of this. In some states, one might be required to file a will with probate court, no matter what. In AR, we don't have to probate them unless and until there's a dispute (or so I was told. I don't do this kind of work, but I know someone who does). This will vary from state to state, and it's important to get the details right if one wants to keep one's heirs on the right side of the law.

Gaseousclay, I'm sorry to hear about your brother. Hope he's doing as well as can be expected.
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Old September 30, 2020, 06:33 PM   #21
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In this respect I'm fortunate. My only daughter is pro gun and I've made her executor of my estate. I've left a will but she gets the final say on who gets what.

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Old October 1, 2020, 02:38 AM   #22
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Quote:
Originally Posted by langenc
Take some pictures of guns/holsters etc, get printed. On the back write S/N and other pertinent data along w/ suggested value..

Give set to someone trusted and encourage them to sell for you. Make sure wife/child (in a few yrs) understand the position.....
It's important to understand that informal "work-arounds" in general aren't useful. If you really want your guns, and any other personal or real property, to go to certain, specific people, or to be handled after your death in a particular fashion, you need to have a properly prepared, valid will, or an appropriate trust set up. Sidebar instructions will not trump a will or trust, or, for that matter, state intestacy law, if some relative decides to object.

Some things that folks often don't consider:
  1. To be valid, a will needs to satisfy certain legal requirements. The exact requirements depend on state law.

  2. Someone needs to be designated in a will or trust as the executor or trustee. That person becomes the personal representative of the decedent to wind up the decedent's affairs. Depending on state law that person might need to be confirmed by the probate court.

  3. Winding up the decedent's estate can involve, among other things:

    1. Accounting for the assets and liabilities of the estate.

    2. Paying any taxes due and/or outstanding debts.

    3. Managing any investments or property left. Collecting any debts due to the estate.

    4. Distributing the remaining assets in accordance with the will or trust.

  4. If there's insufficient cash in the estate to pay all outstanding debts, assets will need to be sold to raise cash.

  5. If it's important to the testator that certain items of personal property be preserved if possible in order to pass to designated beneficiaries, a will or trust can include instructions regarding how liquidation decisions are to be made.

  6. If there's no will or trust, property will go to whomever is entitled to it under the applicable intestacy laws -- without regard to any sidebar, informal instructions the decedent might have left.

  7. Some of the ugliest, nasties fights we see in court involve surviving friends or relatives fighting over the distribution of some dead guy's stuff. Properly prepared wills or trusts can help avoid at least the worst of that.
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Old October 1, 2020, 02:56 PM   #23
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Quote:
Originally Posted by langenc
Take some pictures of guns/holsters etc, get printed. On the back write S/N and other pertinent data along w/ suggested value..

Give set to someone trusted and encourage them to sell for you. Make sure wife/child (in a few yrs) understand the position.
I previously posted a response to the above, saying it's illegal. One of the other moderators removed my post (thankfully), because it was only partially correct. As usual, the problem is that we live in a constitutional republic. We have fifty states, and each state has its own laws. So, to avoid generalizing, I will go on record as saying that what langenc suggests would be illegal in my state -- unless the friend happens to be named as the executor in my will.

In another thread, someone mentioned that a will must be filed with some [unnamed] state agency in order to be legal and binding. That is not the case here but, once someone passes away, before anything can be done with his or her assets, the will (if there is one) must be submitted to and approved by the probate court having jurisdiction, AND the executor must be approved by the probate court having jurisdiction (whether there is a will or if the person dies intestate).

I have two friends who have acted as executors of their respective father's estates (one is still being closed out), in two other states, and in both cases they also had to be approved by the probate court before they could take any action with respect to the decedant's assets.

So, once again -- there is no one-size-fits-all answer, and there is no substitute for looking up the laws of the state/jurisdiction in which you live.

Quote:
Originally Posted by lanenc
Check w/ your state rifle/pistol or other gun assn for laws at that time regarding sales/gifts of said guns. Might ask lawyer about mentioning in will(s).
Once the person dies, "gifts" is out of the question. An executor of an estate has a fiduciary duty under the law to close out the estate responsibly, and I'm pretty certain that means preserving the value of the estate for the benefit of the heirs. Giving away anything that has monetary value would not be preserving the value of the estate. If you have specific firearms that you want to go to certain people, either give the guns to them while you're still alive, or make out a will and list those guns and the recipients as specific bequests.
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