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Old June 14, 2018, 01:47 PM   #1
CedarGrove357
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Dead men can take no guns

Have a bit of an issue. I have a firearm in my store for work. The customer passed away Saturday. He isn't coming back for his firearm. I am in southern Illinois.

Current brainstorms: Could I give it back to the spouse after processing a background check as if she were retrieving the firearm for her husband? Would this have to go through the LEO or probate, or can the spouse relinquish ownership to me?

I've been looking around and can't find anything specifically detailing this particular scenario.

Thanks for the insight.
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Old June 14, 2018, 02:41 PM   #2
Aguila Blanca
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Not a lawyer, but I think the answer is (as usual) "It depends."

Once a person dies, his belongings are subject to probate. One consideration might be whether or not your state is a joint property state. That might make a difference. Another consideration is whether or not he had a will and, if so, what the will says. Firearms that are bequeathed my may transferred by the executor directly to the heir. But "bequeathed" means the will has to specifically say "I leave my Winchester Model 1873 rifle to my nephew, John Doe." If the will doesn't specifically name recipients of the firearms (or if there is no will), then the firearms become part of the overall estate and all laws pertaining to transfers apply. My off-the-cuff, non-lawyer thought is that you should probably be able to release the firearm to the executor of the estate (who may or may not be the surviving spouse). It is the estate that effectively becomes the legal entity that takes over for the deceased. It is the estate that is responsible for paying any debts that the deceased left behind.

This is a legal question. Either you or the surviving spouse (maybe both) need to consult an attorney.

A final caveat: there's also the possibility that the person had established a trust, in order to avoid probate. If so, any firearms he owned may or may not have been transferred to the trust. More reason to consult an attorney in your state.
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Old June 14, 2018, 03:21 PM   #3
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Thanks for the reply. I'm not out anything since nothing has been done to the firearm. At this point the issue is to whom I release the firearm and whether they have to submit to a background check.

Until they contact me, the firearm is staying locked up. I have no dog in any fight except keeping the BATFE happy.
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Old June 14, 2018, 04:08 PM   #4
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It's just property. Unless the wife is a prohibited person, she owns the gun. She just needs to make sure she has a FOID when taking it back home.
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Old June 14, 2018, 06:59 PM   #5
Aguila Blanca
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Quote:
Originally Posted by Onward Allusion
It's just property. Unless the wife is a prohibited person, she owns the gun.
That is very much a fact not in evidence. If the deceased had a trust, the gun may belong to the trust. If the deceased left a will and specifically bequeathed the gun to someone (anyone) other than the wife, the gun belongs to the named heir.

Cedargrove is, IMHO, well advised to just hold onto the gun until ownership is cleared up and a probate court judge decides where it goes.
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Old June 14, 2018, 07:47 PM   #6
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Complicating matters further is that Illinois is a FOID state. So, things that would be permissible in an otherwise 2A friendly state might not apply in IL.
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Old June 14, 2018, 10:21 PM   #7
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Quote:
Originally Posted by Aguila Blanca
Cedargrove is, IMHO, well advised to just hold onto the gun until ownership is cleared up and a probate court judge decides where it goes.
This, pretty much.

I'm not a lawyer, but if I were in this position, I'd want to inform the wife (in writing -- paper trails are good) that I had the gun. I'd probably also ask her if the deceased left a will, and if so, who is the executor; if it's someone else, I'd also want to inform that person. Having done those things, I'd think there wouldn't be much to do except wait for instructions from the responsible party.
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Old June 15, 2018, 12:53 AM   #8
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TO be certain, contact (and pay) a lawyer in your area.

What I would expect is that its legally just property, until it's time to be returned, then you have to follow the firearm transfer rules for your state.

The Executor of the estate is the person you need to inform that the gun is in your possession. It may be the wife, or it may be someone else. It may be a court, I have no idea of the actual situation.

It's their job to see the estate gets settled, property goes to the right people, bills get paid, etc.

When ownership is established, then its just a matter of complying with Fed and state laws to "return" it to the (new) owner.

It could take some time, but should be fairly straightforward. If it isn't, see a real lawyer.
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Old June 15, 2018, 09:43 AM   #9
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Might be simpler just to refund the money to the wife or estate and sell the gun to someone else. Why spend more on lawyers than the gun cost?
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Old June 15, 2018, 10:49 AM   #10
Aguila Blanca
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Quote:
Might be simpler just to refund the money to the wife or estate and sell the gun to someone else. Why spend more on lawyers than the gun cost?
What money?

And how can he "refund" money if it hasn't been established who now owns the firearm? It could be:
  • The wife
  • Any children the couple may have
  • The deceased's general estate
  • A specific, named heir to receive that firearm (or all firearms)
  • A firearms trust
  • A trust established to avoid probate
It's a legal question that cannot be answered by knee-jerk responses based on totally incomplete information.
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Old June 15, 2018, 11:55 AM   #11
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Might be simpler just to refund the money to the wife or estate and sell the gun to someone else.
While it might be "simpler", the problem is that the OP doesn't own the gun. It's in his shop "for work". You can't legally sell what you don't OWN. And there is a legal process to assume ownership of abandoned property, so you can sell, or otherwise dispose of it. This gun isn't (yet) abandoned property, despite the fact that the owner died.

This is not a case of a gun ordered (and paid for) and not picked up because the customer died. In that case, the shop could refund the money to the wife, or the estate, and then sell the gun to someone else, because if it was never transferred to the customer, the shop still owns it. They don't own the customer's money, that will go back to the estate, but they do own the gun that money was intended to buy, and can sell it if they wish.

This is a different matter, the deceased owned the gun, not the shop, so his estate now owns the gun. Selling it without permission from the legal owner would be theft.

Quote:
Why spend more on lawyers than the gun cost?
To make sure your (the shop's) butt is legally covered. To make sure you don't break any laws accidently, which would negatively impact your FFL status. Spending money on a lawyer (even if its more than the gun is worth) to make sure you don't do something that will get your FFL pulled is not money poorly spent, it's an investment against having to spend more money, or possibly even losing income in the future.
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Old June 15, 2018, 12:24 PM   #12
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Quote:
Originally Posted by 44AMP
TO be certain, contact (and pay) a lawyer in your area.
Correct. It also isn't a terrible idea to have a relationship with an attorney who can handle simple questions pertaining to your business.

If the gun was the property of the deceased, only his appointed representative, an administrator or executor, will be entitled to the gun. This person is appointed by the a court and will have a copy of the order for you to keep. You don't need to worry about whether this man had a will. That's the representative's problem.
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Old June 15, 2018, 01:22 PM   #13
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Contact the probate court in the county of the deceased's county of residence and report that you have what appears to be the property of the deceased in your place of business. Then, let the probate process sort out the details of how to go about taking possession of the firearm and to whom it belongs, etc.
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Old June 15, 2018, 03:46 PM   #14
CedarGrove357
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Thank you all for the insight. Imho the first thing to do is notify the spouse of my possession. Then let her establish and prove ownership or relinquish ownership in writing before i go further. Certainly the burden of proof in writing will be the estates and no matter who comes to take possession, it would be no skin off any legit persons nose to submit to a background chech as is required by law should anyone other than the actual owner come to pick up a gunsmith repair.

Sensible?
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Old June 15, 2018, 04:27 PM   #15
Aguila Blanca
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Sorry to be "that guy," but what sounds sensible may or may not be sensible. Under federal law, a firearm that is specifically bequeathed in a will may be delivered by the executor directly to the named beneficiary, without going through an FFL (even if it's an interstate transfer). Since anybody can be named as an executor of a will, the executor probably doesn't have any capacity to run a background check, and it does not appear that a background check is required. The executor (I think) becomes like anyone selling a firearm face-t-face -- as long as the executor doesn't have reason to believe the recipient is a prohibited person, he/she can carry out the transfer.

Here's the actual law: https://www.law.cornell.edu/uscode/text/18/922

Quote:
18 U.S. Code § 922 - Unlawful acts

(a) It shall be unlawful—

...
(5) for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides; except that this paragraph shall not apply to (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;
Subsection (d) of the same section of the US Code says

Quote:
(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
What follows is the well-known laundry list of all the things that make someone a prohibited person. The point is, the BATFE cites this section in its guidance on the bequest of firearms. From that I conclude (remember, I'm not a lawyer) that the same rules apply to the executor as apply to anyone doing a face-to-face transfer: as long as he/she doesn't know or have reasonable cause to believe that the person is prohibited, he/she is okay.

If there is a will, there is (probably) an executor. Normally one would think that for practical purposes the executor is the estate. What if the executor happens to be a prohibited person? If so, I would assume that you could not release the firearm to him/her, since he/she can't pass a background check.

On the other hand, the estate (as represented by the executor) effectively becomes the successor to the deceased person. If the owner hadn't died, would you run a background check on him when he showed up to pick up his own gun that he left with you? If not, then why would you run a background check on the executor?

I know you're looking for a simple answer, but the Internet is a terrible place to look for legal advice, and there may not be a simple answer. I respectfully submit that the sensible thing to do is to contact an attorney. YOUR attorney, someone you pay for an hour of his time to keep you out of hot water.
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Old June 15, 2018, 08:54 PM   #16
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Hire a lawyer knowledgeable in both probate and firearms law. I'm not an IL lawyer, I'm not a probate lawyer, but I do understand the broad outlines. As I understand it, and I freely admit to being wide open to correction by anyone that knows better, at the moment of death, whatever estate plans established by the decedent kick in. That means that the firearm may be owned by the estate, the spouse, a pour-over trust, or some other legal fiction. Unless and until you know what kind of paperwork the decedent had in place, you don't know who owns the gun. I can't give legal advice, but I will say that I would document, document, document. I'd send the widow a letter with appropriate condolences and let her know of the existence of the firearm. If and when she contacts you, I'd ask about the family lawyer and estate plans, etc.
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Old June 16, 2018, 09:55 AM   #17
Onward Allusion
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Quote:
Unless and until you know what kind of paperwork the decedent had in place, you don't know who owns the gun. I can't give legal advice, but I will say that I would document, document, document. I'd send the widow a letter with appropriate condolences and let her know of the existence of the firearm. If and when she contacts you, I'd ask about the family lawyer and estate plans, etc.
Best answer here.

To the OP - save your money and don't hire that lawyer... Let them do it . . .
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Old June 16, 2018, 12:51 PM   #18
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Quote:
Originally Posted by Spats McGee
Hire a lawyer knowledgeable in both probate and firearms law. I'm not an IL lawyer, I'm not a probate lawyer, but I do understand the broad outlines. As I understand it, and I freely admit to being wide open to correction by anyone that knows better, at the moment of death, whatever estate plans established by the decedent kick in. That means that the firearm may be owned by the estate, the spouse, a pour-over trust, or some other legal fiction. Unless and until you know what kind of paperwork the decedent had in place, you don't know who owns the gun. I can't give legal advice, but I will say that I would document, document, document. I'd send the widow a letter with appropriate condolences and let her know of the existence of the firearm. If and when she contacts you, I'd ask about the family lawyer and estate plans, etc.
Just clarification re the bolded.

The decedent's arrangements will become irrevocable at death, meaning he can't change them, and all the entities listed above may be beneficial owners of his property, but the legal owner will be the estate, or if he had a pour over trust, the successor trustee.

If grandson shows up and says "Grand dad said that was to go to me", he might be telling the truth, but if it went to him because Grand dad had a will giving it to him, the estate owns it. Grandson will get it when the court appointed executor takes control of the item and distributes it to grandson.

Most of you would be shocked at the deception and animosity that can surface within a family at a parent's death, even when nothing of real value is at stake. As a third party, waiting for a court order may keep you from being drawn into the squabble.

Last edited by zukiphile; June 17, 2018 at 08:19 AM.
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Old June 17, 2018, 09:31 PM   #19
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Sorry, I misunderstood and thought this was a firearm sale and the customer died during the 24 hour waiting period.

My bad!
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Old June 18, 2018, 11:36 PM   #20
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This depends entirely upon your state's laws. In Indiana, there is an order of succession if the dead person didn't leave a will, with the surviving spouse being at the top. Also, you don't have to go through probate if the estate is smaller than a certain dollar amount. I believe that amount is 50K here in Indiana. Your best bet would be to contact an attorney and find out what the laws of your state spell out.
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Old Yesterday, 08:18 AM   #21
zukiphile
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Quote:
Originally Posted by SonofScobaDover
This depends entirely upon your state's laws. In Indiana, there is an order of succession if the dead person didn't leave a will, with the surviving spouse being at the top. Also, you don't have to go through probate if the estate is smaller than a certain dollar amount. I believe that amount is 50K here in Indiana. Your best bet would be to contact an attorney and find out what the laws of your state spell out.
Introducing oneself to an attorney before a problem arises is a great idea for anyone with a business. Few people are at their best when they are trying to grapple with a business problem, and doing it while interviewing with counsel isn't going to make it more pleasant.

Statutes of descent and distribution are common to states with a common law heritage, which I believe may be every state except Louisiana. Those statutes do not relieve anyone of probate court jurisdiction; they merely designate the order in which the court is to distribute the estate.

Statutes that relieve small estates from administration are also common. Somewhat counter to reasonable intuition, an order relieving an estate from administration is obtained from the same court that has probate jurisdiction.

In any event, someone in CedarGrove's position can rely on an order appointing a representative of the estate or relieving the estate from administration and directing to whom distribution is to be made.
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