According to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), from 1986 through 2018, tens of millions of firearms were both manufactured in and imported into the United States.[1] Where are those guns today? They are most likely filling gun safes, closets, nightstands, and desk drawers in homes all across this country. Regardless of whether you think that is a good thing, the fact remains that firearm ownership is very common in America. When you are handling a deceased loved one’s final affairs, you must consider the chance that your loved one owned one or more firearms at the time of death.
Consider the following scenario: Your widower father just passed away, and, after making arrangements with the funeral home, you let yourself into his home to pull together some photos and other memorabilia to display at the funeral. As you are going through his closet, you discover a dozen guns on the top shelf. Some of them are obviously hunting rifles, revolvers, and standard shotguns. But some of them appear to be military-style firearms with pistol grips and mounting rails, and one of them even has a three-way selector switch near the trigger. What should you do at this point? Although there are many things to consider in a situation like this, here are a few things to keep in mind as you deal with firearms owned by a deceased loved one.
Determine Who Has Legal Authority to Handle the Firearms
In a scenario such as the one described above, you should first determine whether your deceased father had a will or trust in which he named someone to be in charge of his final affairs. If he did, you must find those documents as soon as possible and determine who is the named executor or personal representative under his will or the trustee of his trust. If that individual is not you, contact that person and let them know about the existence of the firearms, and encourage the executor or trustee to take appropriate steps to safeguard them.
If you are the person nominated in the estate documents, determine whether the firearms were ever transferred to the trust by the trustmaker or are owned only in the name of your loved one. In many trust-based estate plans, the trustmaker signs an assignment of personal property, a document that transfers ownership of personal property, including firearms, to the trust. If you find an assignment among the trust documents and it appears from the language that the trustmaker intended the firearms to be owned by the trust, you will typically have the legal authority to take possession of the firearms for safekeeping and later transfers.
Securing the Firearms
If the firearms are not already secured in a strong gun safe that cannot be carted away in a burglary, make arrangements to properly secure them as soon as possible, particularly when they are in an unoccupied residence. Burglaries happen every day, and an obviously unoccupied house or apartment can draw the attention of would-be burglars. If unsecured guns are in the house, their theft could ultimately lead to commission of a violent crime. In that event, crime victims could sue for civil damages or even criminal liability against the person who was responsible for, but failed to, properly secure the firearms.
If you think that keeping guns in a safe in an unoccupied residence is still too risky (and it may well be), consider placing the guns in the custody of an individual or entity that holds a Federal Firearms License (FFL) until you can determine whether and how to distribute the firearms to heirs or beneficiaries. Someone with an FFL can legally take possession of a wide variety of firearms, including guns that are not typical hunting rifles, pistols, and shotguns, such as machine guns and short barrel rifles and shotguns, and accessories such as silencers, the possession and transfer of which are subject to even more-restrictive laws. The FFL licensee will have the proper authority to possess the guns and perform necessary background checks before any transfer. The licensee will probably also have proper storage and insurance that will protect the executor or trustee from any liability should something happen to the firearms during the course of the estate or trust administration. You can look up local FFL licensees through websites such as FFLGunDealers.net and Gunbroker.com to learn more about how they can help you stay out of legal trouble when selling or otherwise transferring firearms.
Prohibited Persons Cannot Legally Possess Firearms
Beyond safely storing and transferring the firearms it is important to remember that even though you or another family member is nominated in your loved one’s estate planning documents to handle the deceased’s final affairs, it may still be illegal for you to take possession of those firearms—even to transfer them to someone with an FFL. Federal law restricts certain individuals from possessing a firearm in any situation, even if that person is acting as a fiduciary of an estate or trust that owns firearms. Under federal law, prohibited persons include anyone who
- has been convicted by any court of a crime punishable by imprisonment for a term exceeding one year;
- is a fugitive from justice;
- is an unlawful user of or addicted to any controlled substance (including marijuana, even if it is legal in your state);
- has been adjudicated as being mentally defective or committed to any mental institution;
- is an illegal alien;
- has been dishonorably discharged from the Armed Forces;
- has renounced US citizenship;
- is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or a child of an intimate partner; or
- has been convicted of a misdemeanor crime of domestic violence.
In some cases, state laws can be even more restrictive than the federal law described above. Consult an attorney who is an expert in not only federal laws but also your state’s laws regarding possession and transfer of firearms. If your deceased loved one named someone to be in charge of the firearms, or to ultimately inherit them, the named person must be able to qualify to possess a firearm under both federal and state laws. If an executor or trustee takes possession of or transfers firearms to someone who is not legally permitted to possess them, stiff penalties may apply, including up to ten years’ imprisonment.[2]
Once you have determined who can lawfully possess your loved one’s firearms, look to any existing estate documents to determine to whom they should be distributed. Arrangements can then be made to deliver those specific firearms to the individuals named to receive them.
Obtain Proper Valuation of Firearms
If your loved one died without a will or trust or without otherwise specifying in estate documents who should receive the firearms, the firearms should be appraised by a valuation professional. Firearms can vary widely in value depending on a variety of factors, including their condition, their rarity, and the nature of the modifications that have been made to them.Therefore, looking up what appears to be a similar gun on a website may provide a significantly inaccurate estimate of the gun’s value. Do not attempt to value firearms on your own.
Enlist an appraiser with significant experience in appraising firearms to help you with this task. Appraisers can often be found at reputable pawn shops, gun stores, auction houses, and online. Be careful when choosing an appraiser. Not all appraisers are qualified to value firearms, and some less reputable appraisers may even attempt to minimize the value of firearms in an effort to profit from your inexperience in handling such specialized items of property. Ask around at local gun shops and even check with local law enforcement to identify reputable gunsmiths or appraisers who can assist you with this task.
Transfers of Firearms
Once you have properly appraised the firearms and it is time to either transfer them to an heir or sell them, the most conservative course of action is to arrange the transfer by working with a business or an individual who holds an FFL license. Depending on the state where the guns are located, the FFL licensee will be qualified to perform any required background checks, registration requirements, or bills of sale for the individuals who are purchasing the firearms or receiving them through the terms of the will, trust, or inheritance laws of the state.
If you choose not to use an intermediary with an FFL license, you should, at a minimum, get a signed, notarized statement from the individual to whom you are transferring the firearm that the recipient is not a prohibited person under either state or federal law and can legally possess a firearm. There may also be additional requirements in your state for transferring firearms. There are different classifications of firearms, some with even stricter legal requirements for ownership. Thus, it is crucial that you consult a qualified attorney in your state before making any transfer of a firearm.
Crossing State Lines
If your deceased loved one lived in another state and you are responsible for handling the deceased’s final affairs, exercise great caution when transporting any firearms across state lines. Because state firearms laws vary widely, it is even more important to obtain sound legal counsel before transferring guns to someone who lives in another state. In such a case, it is best to work with an FFL licensee who lives in the state where the firearms are currently located and who can take possession of the firearms and handle any future transfers of those items. Be aware that, when you place firearms in the care of an FFL licensee, the protocols that apply to a transfer to any third party also apply to returning the guns to you, including any mandatory waiting periods.[3]
Surrendering Firearms to Law Enforcement
Today, many people have philosophically determined that they have no use for firearms, and they desire to decrease the number of existing firearms. If none of the estate’s heirs want to inherit the firearms and no family member wants them to be sold for cash to be distributed to the heirs, consider surrendering the firearms to the local police department. By doing so, you can avoid the requirements and potential liabilities associated with transferring firearms to private buyers. This option may make even more sense if the firearms’ values are too low to justify the effort required to safely and legally sell or otherwise transfer them. If surrendering the weapons to law enforcement makes sense to you, contact your local police department to explain the situation and ask them how to go about it.
Conclusion
Many families have enjoyed hunting, recreational or competitive shooting, and collecting guns for generations. As a result, firearms can have significant meaning and sentimental value. But, as you can see from the discussion above, transferring firearms to the next generation or selling them to third parties requires great caution. The laws surrounding firearms are many and complex. If you find yourself responsible for handling the distribution or safekeeping of a deceased loved one’s firearms, your best course of action is to get the help of an experienced gun law attorney or a gun dealer with an FFL.
[1] U.S. Dep’t. of Just. Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms Commerce in the United States: Annual Statistical Update 2020, 1–5 (2020), https://www.atf.gov/file/149886/download.
[2] 18 U.S.C. §§ 922(d), 924(a)(2).
[3] Giffords Law Center to Prevent Gun Violence, Gun Sales Waiting Periods, https://giffords.org/lawcenter/gun-laws/policy-areas/gun-sales/waiting-periods/ (last visited Jan. 27, 2021).