Hi, Internet land. Welcome to another episode of Protect Your Ass(ets). I’m attorney Jean Fair with the law office of Fair and Fair PLLC in the great state of Texas. Today, I’m kicking off a short series of videos dealing with the particular challenges involved in handling firearms in an estate planning and probate context. In this video, I’ll be covering things firearms owners should consider when writing a will gifting or otherwise transferring their firearms to friends or loved ones. I will have other videos covering this same topic from the perspective of the executor of an estate, as well as an heir inheriting firearms, and I will also have videos dealing with even more particular issues involving title to firearms and transferring firearms to minors.
The first thing for a firearm owner to consider is who will be receiving the firearms. Both Texas and federal law prevent certain types of people from possessing firearms; not owning — possessing under both Texas and federal law. THose prohibited from owning firearms are anyone who has been convicted of a felony, fugitives from justice, anyone unlawfully using or addicted to a controlled substance, anyone who has been declared by a court to be mentally incompetent or has been admitted to a mental institution unless their rights have been restored, illegal aliens or anyone with a non-immigrant visa, and anyone dishonorably discharged from the US Armed Forces, anyone who has renounced their US citizenship, anyone subject to a protective order or other certain injunctions, and anyone who has been convicted of a misdemeanor involving domestic violence.
It’s vitally important for firearms owners to know whether someone they want to transfer their firearms to is a prohibited person for several reasons. First, if you as a firearm owner know that someone you want to give your firearms to is a prohibited person and you tried to do that anyway, you could be subject to criminal charges for trying to do so. Next, let’s say you’re trying to leave a firearm to someone under your will, but that person is a prohibited person. One of two things will likely happen: either that particular gift will lapse and become part of what’s known as the residuary estate and someone other than your intended beneficiary of that particular firearm will end up getting that firearm, and second, that firearm may have to be sold so that the proceeds from that sale can be given to your intended beneficiary.
The best way to avoid these problems is to include provisions in your will designating alternate beneficiaries in the event that your first choice for who you want to receive the firearms ends up being a prohibited person. In either scenario, the executor or trustee will likely have actual possession of the firearms at some point to fulfill their duties in those roles. They won’t be able to do that obviously if they are a prohibited person.
Firearms owners also need to be aware of where their firearms will ultimately end up. It’s not uncommon for someone leaving property under a will to leave it to someone who lives in another state. Now, with firearms, not only are there federal laws that apply in all of our 50 states, but each state has their own specific laws further regulating firearms. This means that even if your intended beneficiary is not a prohibited person, but lives in another state, he or she may still not be able to lawfully possess certain firearms. This is because each state makes its own rules regarding whether guns need to be registered, whether you have to have a permit to carrying them, where and which locations are restricted from carrying firearms, the types of firearms that can be owned, magazine and caliber restrictions, as well as how firearms should be transported and stored.
For example, if you leave a handgun that has a 12-round magazine to someone who lives in a state that has restrictions on magazine capacity and only allows magazines that carry up to 10 rounds, that particular firearm will be illegal to possess in that state. Again, the best way to deal with this situation is to include provisions in your will designating alternate beneficiaries if a particular person cannot lawfully own or possess a particular firearm in their state.
That concludes this episode of Protect Your Ass(ets). If you liked this video, please subscribe to our channel and be sure to give it a thumbs up. That’s how I know what you want to see more of and what you never want to see again. Thank you for watching.
Helping Texas Gun Owners
Since we opened our office, one of our primary goals was to better serve fellow gun owners and Second Amendment-supporters throughout the state of Texas. We’re proud to say we’ve formed LLCs for Federal Firearms License (FFL) dealers, drafted estate planning documents for folks with small and significant gun collections (including NFA items), drafted NFA “Gun Trusts,” helped gun ranges with real estate issues and assess liability, and probated estates with small and large gun collections.
We’ve talked around the state regarding current gun laws, the intersection of the 4th Amendment and gun laws, civil liability of gun owners, and how to decipher provisions of the Texas Penal Code regarding gun laws. We’ve also helped interpret new legislation (2017 was interesting), assisted churches with forming Church Security Teams, and tried to answer anything we can legally pertaining to firearms.
Basically, we’re here to be of service to the firearms community in Texas. If you need any assistance with business formations, estate planning, NFA Trusts, real estate law, or probating an estate, our knowledgeable gun-owning attorneys would be happy to speak with you, regardless of where you are in the state. We have several services that we offer state-wide and would be happy to speak with you about any other firearms-related matters we could assist with.
Feel free to call us at (281) 973-7255 — we keep our phones open from 9:00 AM to 9:00 PM – Monday through Saturday.
You can reach us by email at [email protected] or the contact form on this page.
We’ve also recently added Facebook Messenger support too.