The right to bear arms is deeply ingrained in American history and culture. Firearms are more than just tools. They are cherished heirlooms, symbols of liberty and self-reliance, and a connection to our nation’s unique history. But responsible gun ownership doesn’t stop at safe handling and proficiency. It extends to how gun owners do their estate planning.
When it comes to passing down firearms to the next generation, there are unique considerations that gun owners must address to ensure safe and lawful transfer. This includes laws at the state and federal level, as well as unique concerns about privacy and values.
Let’s look at some of the important considerations for gun owners in their estate plans and how you can successfully plan to pass on your appreciation for the right to bear arms.
Legal Considerations in Gun Owners’ Estate Plans
Both state and federal law regulate firearms. But both state and federal constitutions also limit what governments may legislate regarding ownership of firearms.
Under the Supreme Court’s decisions in District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen, the Second Amendment is an individual right. Laws burdening it must be consistent with our nation’s historical tradition of firearm regulation.
Some notable federal laws are the National Firearms Act, the Gun Control Act, and the Brady Handgun Violence Protection Act.
Tennessee state law is fairly lenient on gun ownership. Article I § 26 of the state constitution provides:
That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.
While there are unique constitutional protections for the right to bear arms, there are also myriad laws that gun owners must abide by.
State and federal law have provisions regarding who is a “prohibited possessor.” This is particularly important when it comes to passing down your firearms. For example, anyone convicted of a felony offense cannot possess a firearm under state and federal law. Nor can an unlawful user of narcotics possess a firearm.
It’s possible that one of your beneficiaries may become a prohibited possessor. In that case, as a gun owner your estate plan ought to contain a provision for what your executor or successor trustee should do.
One way to handle this is to have a substitute bequest for such beneficiary that is about the same fair market value. The firearm(s) could then go to other beneficiaries. If you have a trust, you could also direct the trustee to hold the firearms on the beneficiary’s behalf until such legal prohibition is removed (if applicable).
The important thing is to make sure that your firearms do not go to a prohibited possessor. Otherwise, that person is subject to criminal prosecution. Law enforcement will likely confiscate the firearms, as well.
Certain states also have strict licensure requirements for simply possessing firearms, such as New York and Hawaii. Some firearms and components you own here in Tennessee may not be legal in another state, like standard capacity magazines.
If your beneficiaries live in another state, it is critical to be aware of what procedures that person may have to go through to lawfully take possession of a firearm.
Gun Owners May Want Increased Privacy in their Estate Plans
Many gun owners are concerned about the public at-large knowing what they own. After all, if criminals know a person has a lot of firearms, that could put a target on that person’s house. Though such criminal would likely want to attempt their heist while no one is home.
One of the downsides of just having a Will in place is that the document is public record. Anyone is able to go to probate court and inspect the filings on a probate estate. If you have listed out to whom your firearms should go in your Will, that information is now public record. Anyone could use that to their advantage.
A good way to avoid this problem is for gun owners’ estate plans to include a trust. If you do not own NFA firearms, such as a machine gun, short-barreled rifle, or suppressor, then you may not need to set up a gun trust. A revocable living trust can hold these firearms, along with many other types of property.
When the Settlor (creator) of a trust passes away, the successor trustee privately administers the trust. The terms are not made public, and no one but the trustee and beneficiaries know who received what. This can be a major advantage for privacy-conscious gun owners.
Consider How Your Beneficiaries View Gun Ownership
While gun ownership is a distinctly American tradition, not all Americans want to partake. Indeed, many Americans today feel like the history and tradition of gun ownership is a problem. These detractors would rather see firearms much more heavily regulated or even outlawed entirely.
If one of your beneficiaries feels this way, you probably would not want to give your firearms to that person. After all, if your guns are a cherished item, someone who does not appreciate gun ownership may just sell them. They may even surrender them to a law enforcement agency.
Or, maybe even worse, he or she may try to destroy such firearm and possibly create an NFA item inadvertently. This happened to a Congressional candidate a few years ago, though she wasn’t actually prosecuted.
These are probably not options you’d like to think about when it comes to your prized possessions.
Your estate planning documents can direct to whom your firearms and related accessories should go when you pass away. Especially if you have firearms passed down from prior generations, losing these family heirlooms to a non-appreciative beneficiary would be tragic.
Final Thoughts on Estate Planning for Gun Owners
Estate planning for gun owners involves more variables than we’d like. But we have to plan accordingly to prevent unlawful transfers. Well-drafted documents help to preserve both the cherished tradition of gun ownership and lawful transfer of these treasured possessions to the next generation.
By understanding and adhering to applicable firearm laws, you can have a smooth transition of your firearms while appreciating the rich history of gun ownership in the United States. And depending on your unique wishes, you can choose the type of documents to effectively accomplish your goals.
In doing so, you will pass on not only the firearms themselves, but also the values and responsibility that they represent.
To get your estate planning documents in order and pass on your firearms to appreciative and responsible beneficiaries, reach out to Connell Law today to schedule your free consultation.
