An Introduction to Inheriting Firearms

Leaving firearms to your loved ones, inheriting them, or managing them as an administrator of an estate all present unique legal issues.  Many of the legal issues and complications that plague the devising or inheritance of firearms stem from the multiplicity of laws involved the process.  Texas has laws governing both firearms themselves and how wills, trusts, and the probate process are handled in general, as well as laws governing intestate succession (inheritance without a will).  In addition to navigating Texas state laws, federal firearms laws can also impact the inheritance process, and laws of other states must be acknowledged if either the estate or a beneficiary of the estate is located outside the state of Texas.  

Generally, federal gun laws apply at at all times, regardless of where the guns are located and where the estate or the guns are located.  Applicable state gun laws are determined by where the guns are located at the time. Working knowledge of all applicable laws is particularly important as they apply to firearms because most gun laws are “strict liability” laws, meaning that violation is punishable as a crime, regardless of whether the actor intended to violate the law or even knew that his or her conduct was prohibited.  

In probate proceedings (situations where property will be passed to heirs either through intestacy laws or pursuant to a will), it is important for both gun owners and estate administrators to pay particular attention to who will be receiving them.  Both Texas law and federal law prohibit certain persons from possessing firearms in any capacity (“prohibited persons”).

Defining a “Prohibited Person” for Purposes of Inheriting Firearms

Under federal law (18 U.S.C. § 922(g)), persons prohibited from possessing either firearms or ammunition are:

1) persons convicted of a crime punishable by confinement for more than one year (felons);

2) fugitives from justice;

3) unlawful users of or persons addicted to any controlled substance;

4) persons who have been adjudicated as mentally defective (declared mentally incompetent by a court) or who have been committed to a mental institution (unless their rights were restored;

5) illegal aliens or persons with nonimmigrant visas;

6) persons with dishonorable discharges from the U.S. Armed Forces;

7) persons who have renounced their U.S. citizenship;

8) persons subject to certain court orders (protective orders and injunctions); and

9) persons who have been convicted of misdemeanor crimes of domestic violence.  

Furthermore, pursuant to 18 U.S.C. § 922(n), it is a crime for a person under indictment (not yet convicted) for a crime punishable by confinement for more than one year (felony) to ship, transport, or receive a firearm.  This means that someone indicted for a felony can still possess any firearms they already have, but cannot receive any more (purchase, gift, inheritance, etc.) or be involved in transferring them in any way.  

Texas law also prohibits many of the same classes of persons from possession firearms.  Pursuant to Texas Penal Code § 46.04, any person convicted of a felony or a crime of domestic violence punishable as a Class A misdemeanor or subject to a protective order is prohibited from possessing a firearm.  Although Texas law permits persons convicted of a felony or domestic violence charge to own firearms in their home after five years following the person’s final release from confinement or supervision, these persons are still prohibited from possessing firearms pursuant to federal law.  Furthermore, in many cases, even completion of a deferred adjudication sentence under Texas law will be treated as a conviction for the purposes of firearm possession.

For Purposes of Inheriting Firearms, a Personal Representative Cannot be a Prohibited Person

Because the personal representative of an estate (whether done pursuant to a will or through intestacy) is charged with the duty of preserving and protecting the estate, as well as distributing the estate to the designated heirs or beneficiaries, it is unlikely that a prohibited person under Texas or federal law will be able to serve as personal representative.  To fulfill his or her duties as personal representative, a person must possess any firearms owned by the decedent for at least a short period of time. If the estate’s personal representative is a prohibited person, he or she will not be able to take possession of the firearms for safekeeping during the pendency of the probate process or to distribute them as required without violating federal and/or state law.  

There is no exception in either Texas state law or federal law for the representative of an estate to possess firearms in the discharge of his or her fiduciary duties if he or she is a prohibited person. This is particularly important in the drafting of a will. If someone named as the executor of an estate containing firearms is or becomes a prohibited person, and there is no alternative executor named, the court will be forced to appoint another executor of the estate.  Without guidance in the will for alternate executors, the person appointed might not be the person the testator (the person drafting the will) would have chosen.

Beneficiary Complications for Purposes of Inheriting Firearms

A beneficiary or heir who is a prohibited person presents additional complications.  Pursuant to Texas state and federal law, a prohibited person cannot possess firearms or ammunition.  This means that the representative of an estate cannot lawfully transfer any firearms to any beneficiary who is a prohibited person.  This means that any firearms left to a prohibited person will have to be either distributed to another beneficiary or sold so the proceeds can be distributed to the prohibited person.  Either way, if a will has been drafted, the executor is forced to take action contrary to the testator’s intent.

Furthermore, if the estate’s representative is unaware that a particular beneficiary or heir is a prohibited person, the executor could violate Texas and/or federal law by merely attempting to carry out his or her duties as executor of the estate.  Again, there is no exception to Texas state or federal prohibitions against transferring firearms to prohibited persons for persons carrying out their duties as representatives of an estate. The best way to avoid these problems is to either include provisions in a will appointing an alternate executor or beneficiary if either is or becomes a prohibited person during the probate process.  

In addition to the prohibited persons discussed above, federal law (18 U.S.C. § 922(x)) prohibits minors (persons under the age of eighteen) from possession firearms.  However, unlike the prohibited persons discussed above, minors can still inherit firearms because the law distinguishes between possession of firearms and ownership of firearms.  The typical procedure for a minor to inherit guns is for the minor to own them, but for his or her parents or guardians to maintain possession and control of them until the minor reached eighteen years of age.  

What about Heirs Inheriting Firearms Who Live in Other States?

Heirs located in other states also pose potential problems to the unwary estate representative.  Federal law generally prohibits direct transfer of guns between persons in different states except through a licensed dealer (18 U.S.C. §  922(a)(5)). However, there is an exception that permits personal representatives of an estate to distribute firearms to heirs across state lines without violating federal law.  Even though estate representatives are permitted to transfer guns to beneficiaries across state lines, both estate representatives and beneficiaries alike need to be cognizant of applicable state laws.  

Some of the most common areas where the laws of other states differ from Texas law are:

1) registration – some states require the registration of some or all firearms;

2) permits – some states require a permit or some other form of identification before a gun owner may possess a firearm, some states require permits for concealed carry, open carry, or both;

3) locations – each state has its own list of locations where firearms are prohibited;

4) types of firearms – many states have restrictions on the type of firearms that a person may possess (such as the so-called “assault weapon ban” on certain semiautomatic firearms), as well as restrictions on caliber and magazine capacity;

5) NFA firearms – many states have restrictions or outright prohibitions on firearms regulated by the National Firearms Act (NFA guns);

6) prohibited persons – in addition to the federal law, each state has its own list of prohibited persons;

7) transportation – some states have restrictions on how firearms and ammunition can be transported; and

8) storage – some states have restrictions on how firearms and ammunition must be stored.  

It is vital that anyone writing a will or acting as an estate’s representative ensure that an intended beneficiary in another state can legally own the guns he or she is supposed to inherit under applicable state law.

Inheriting Firearms Subject to the National Firearms Act

Firearms that are regulated by the National Firearms Act (NFA guns) also present a special set of concerns in the probate and estate planning context.  The National Firearms Act (NFA) regulates machine guns, silencers and suppressors, short-barreled rifles and shotguns, and destructive devices. This means that both those writing a will and representatives of an estate must take special care to comply with the law when dealing with firearms subject to the NFA.  Although the NFA makes it illegal for anyone other than the registered owner to possess an NFA firearm (18 U.S.C. § 5861), there is an exception for personal representatives of an estate during the pendency of a probate proceeding (27 CFR 479.90a). Similarly, although the ATF considers possession of ATF firearms by anyone other than the registered owner a crime, even when acquired pursuant to the death of the original owner, the AFT does allow for a “reasonable time” for NFA firearms to be properly transferred to an heir.  However, the ATF does not define what constitutes a “reasonable time.”

To properly transfer NFA firearms, the NFA requires that the appropriate application be submitted (Form 5 to transfer to an individual), the correct amount of tax be paid, and that the application be approved before the firearm may be transferred.  In most cases, the transfer of an NFA firearm through inheritance or intestate succession is tax-free because the ATF treats such as transfer as a change in ownership by operation of law rather than a voluntary transfer.  However, a transfer in probate is still subject to tax if the NFA firearm is transferred to someone other than a beneficiary, such as if the NFA firearm is sold so proceeds from the sale can be distributed to the beneficiary rather than the firearm itself.  

It is particularly important for owners of NFA firearms to make arrangements for the transfer of their firearms upon their death (either through a will or an NFA trust) because the ATF will not approve applications for individuals to jointly own NFA firearms.  When someone dies without a will and has more than one heir, the estate must be divided between the heirs according to Texas intestacy law.  Consequently, it is likely that more than one person could end up being legally entitled to what is called an “undivided interest” in an estate’s NFA firearms.  This means that more than one person will have a shared right to the NFA firearms. However, as discussed above, the ATF will not approve applications for individuals to jointly own NFA firearms.  Therefore, if a person’s heirs cannot agree on how to divide any NFA firearms in an estate, they will likely have to be sold and the proceeds distributed to the heirs.

If it is unclear whether an NFA firearm is properly registered or not in the administration of an estate, the AFT recommends that the estate’s representative contact the ATF in writing to request verification that the firearm is properly registered to the decedent.  If it is not, the unregistered NFA firearm is considered contraband, and the AFT recommends that the estate’s representative contact the ATF to arrange for its disposal.

Because of the unique issues involved with handling NFA firearms, all NFA firearm owners should keep a detailed, updated list of all firearms subject to NFA regulation (along with the ATF forms and tax stamps, if possible) and ensure that this list is provided to any representative of his or her estate.  Likewise, a representative of any estate involving firearms should take extra care to make sure that all firearms are appropriately identified as being subject to NFA regulation or not. It might be necessary to consult with an expert, as it is not always apparent that a particular firearm is subject to the ATF and the original owner may not have kept helpful records.  

One of the best solutions to avoid these problems is the creation of an NFA trust.  An NFA trust is created primarily for the purpose of holding firearms regulated by the NFA.  If a person’s guns are held in trust, they will generally not be part of the estate, and will therefore be distributed according to the terms of the trust rather than passing through probate.  One benefit of an NFA trust is that it allows the firearms to be possessed and used by multiple persons by making them trustees. However, at some point the trust will have to terminate and the trust property will need to be distributed to the beneficiaries.  

The NFA (as part of the Tax Code – Title 26 of the U.S. Code) defines a “person” to include trusts, corporations, and other business entities.  This is why an NFA trust can legally acquire and own NFA firearms. NFA trusts are generally drafted as revocable living trusts, meaning that the settlor (the person creating the trust) retains the power to modify or dissolve the trust, and the trust is created during the settlor’s lifetime (rather than after the settlor’s death pursuant to instructions in a will).  An NFA trust, following the same basic principles as ordinary living trusts, places control of the firearms in the trust in the hands of the trustees (the people who control the property in the trust) for the benefit of the beneficiaries of the trust (the people who are ultimately entitled to receive the benefits of the property). Like all trusts, an NFA trust separates the right to control trust assets from the right to receive the benefits of those assets.  

In addition to the typical requirements of a revocable living trust, each “responsible person” of the trust (generally anyone who has the right to make significant decisions regarding the NFA firearms or who has the right to possess the firearms – namely the trustees and beneficiaries) must undergo a background check for each ATF application considered.  Because of the particularities involved in dealing with NFA firearms, it is vitally important that an NFA trust be drafted correctly. If the trust is invalid under the laws of the state where it was created, any person possessing the NFA firearms held by the trust has no legal authority to possess them, and is therefore in violation of federal law.

The most common problem leading to an invalid trust is to appoint one person as the sole trustee and sole beneficiary (called merger).  Recall the purpose of a trust is to separate control of trust assets from the benefits of those assets, appointing only one person as both the beneficiary and trustee of a trust defeats that purpose.  The easiest way to avoid merger problems is to ensure that a trust has at least one beneficiary who is not a trustee.  Furthermore, and NFA trust should always be in writing and should always be signed by all trustees to ensure that they have read it and agree to comply with its terms.  

In addition to general state firearms laws, persons wanting to plan to distribute their guns in their estate, persons in charge of administering an estate, and heirs or beneficiaries of an estate must have a working knowledge of how those laws interact with federal law, probate law, and even the gun laws of other states.  Anyone in these situations should consult with an attorney to ensure that they understand their options and how to comply with all applicable laws.