Now that I own a small but decent collection of pistols and rifles, I’ve kind of lost some enthusiasm for adding more to my safe. Sure, I appreciate the latest and greatest from the gun manufacturers as much as the next guy, but over time, I have found that I tend to settle into shooting certain guns a lot while others seem to stay in the safe a lot more. Gadgets and gizmos certainly help to fill the void, but sooner or later, I knew I’d eventually get around to that semi-forbidden fruit – the fun stuff restricted by the National Firearms Act (NFA) . . .
Being lucky to live in a state that’s fairly open-minded when it comes to acquiring all kinds of shooty goodness, I have a number of choices at my disposal. Winning the Powerball jackpot would certainly open some more options into the realm of select fire weapons, but failing that, I’ll have to content myself with short barrel rifles and suppressors. Not that there’s anything wrong with that.
While my state may not have any specific problems with ownership of NFA items per se, there is still the pesky process of getting my Chief Law Enforcement Officer (CLEO) to sign off on the Form 1 or Form 4 and dealing with the fingerprinting and photo process. I’m no tin foil hat wearing conspiracy theorist, but I do believe in keeping all levels of government the hell out of my business if at all possible.
Letting the local constabulary know every time I purchase a restricted weapon is not on my list of favorite things to do. So as I did more reading on the whole process of purchasing NFA items, I came across the idea of using a revocable trust as the purchasing vehicle.
I’m no lawyer, but in a nutshell, a trust is viewed as a legal entity under U.S. Law. Like a person or a company, a trust can be used to acquire and dispose of property for the benefit of the trust’s beneficiaries. They’re managed by one or more trustees who control the actions of the trust within the terms of the trust document. There are many kinds of trusts and they are used for different purposes, but for obvious reasons, we’ll focus on the type of trust called a revocable trust that serves as the base for the specialized “NFA trust” or “gun trust.”
A gun trust is set up by an attorney and essentially creates a new legal entity. In my case, I am both the sole trustee, though my wife is named as a successor trustee. My minor children are the beneficiaries and will acquire all trust’s property upon my death. During my life, I have the ability to amend the trust to add or remove additional trustees. Since all trustees have the same right of access to trust property, anyone named as a trustee can use NFA items held by the Trust.
Why bother? First and foremost, a gun trust eliminates the need to provide a photo, fingerprints or get the CLEO signature on your form 1 or 4. The applicant for the tax stamp is the trust, so it looks homely and doesn’t have fingers to print. And since a trust can’t have a criminal record, the CLEO really has nothing to say about it.
It also clears up the confusion regarding who can legally use NFA items. Technically speaking, if a silencer is transferred to me, I am the only person who can legally use it. If my wife comes shooting with me and I loan her my gun with silencer affixed, I have just committed what the ATF considers a “constructive transfer” and could be prosecuted under the NFA. If a Trust owns the silencer and my wife is also a trustee, then she has full permission to use it or any other NFA item held by the trust, even if I am not present.
Finally, if my right to own firearms was revoked for some reason (God forbid), as long as there was another trustee in the trust, the ATF could not seize the NFA items as they’d be owned by the trust, not by me.
Setting up a gun trust will generally run you between $300 and $1000 depending on your jurisdiction and how much your attorney owes on his BMW. One of the earliest proponents of the NFA trust model was attorney David Goldman with the Apple Law Firm in Florida. Over the years, he’s formed a partnership with a number of other attorneys in different jurisdictions which allows the Apple Law Firm version of the NFA Trust to be tailored to the unique laws in each jurisdiction.
Now, though, there are plenty of other attorneys offering firearms trusts, many of whom will do the work for less than Apple. Knowing all of this, I still decided to go with the Apple Law Firm’s version. Their attorney in my state is well known for his expertise in firearms laws and the Apple version of the trust has been around for nearly five years, so its a fair bet that most of the bugs have been identified and worked out by now.
Getting the trust created was fairly simple. I called up the Apple Law Firm, gave them a credit card number and answered a few questions. A week later, the draft trust showed up via snail mail. I read it over, asked for some modifications and a day later received the final version. Then I printed it out and took it down to my bank to get my signatures witnessed and notarized.
Now I am off to fill out my Forms 1 and 4 for my silencers and SBRs. It will be interesting to see how long it takes to get approval using a trust as the purchaser. Theoretically, it should be quicker as there’s no need to run the photo and fingerprint background checks, but then again, I’ll be dealing with the ATF. Stay tuned.
Once the NFA goodies are properly placed in the trust, it’s possible to avoid further Federal permission slips or $200 tax payments. If the trust is properly configured, the items can remain trust assets regardless of changes in beneficiaries or trustees. Without the trust, the heirs of an NFA firearms owner might be unable to possess and own their legacy.
Actually, inherited NFA items (in addition to NFA items transferred from local/state/federal agencies to individuals) transfer tax-free on ATF Form 5.
Form 1 is application to manufacture (any non-SOT)
Form 2 is notification of manufacture (any SOT-holder), and IIRC doesn’t require payment above SOT fees.
Form 3 is transfer between dealers, and is tax-free (at least when starting and ending on form 3)
Form 4 is transfer to any non-FFL/SOT
Form 5 is transfer from agencies to individuals, or through inheritance.
Question:
A Title II firearm is sold to and owned by a trust. The trust has 7 members. Member number 5 has a criminal history and cannot lawfully possess the Title II firearm in question. Does this prohibit the trust from owning the firearm?
No but if the person who isn’t allowed to own firearms is in possession of one of the firearms owned by the trust. That firearm will be seized and the person will be charged with felony possession of a firearm. I would keep that person out of your trust, they only pose a risk to seizure/felonies.
A properly drafted GunTrust should take care of this issue. You might look at http://www.guntrustlawyer.com/
While it’s cool that we can do this, it makes me want to smash stuff & puke on it.
Something that is highly illegal fo law abiding citizens can be circumvented by paying lawyers for a piece of paper to hide our guns behind.
Our freedoms are so perverted.
NFA items are not illegal for any law abiding citizen, the trust just makes it easier for said citizen to jump through the hoops.
I can agree with smash stuff and puke on it. But that stuff should be the NFA and not the trust.
I see your point. My beef is that “law-abiding” entails being subjected to the NFA and the necessary evil of paying lawyers to exercise inherent freedoms.
Actually, he’s right.
While he may not have articulated the intricacies of the issue, the fact remains that it is a sad state of affairs that we are reduced to hiring lawyers, and engaging in legal trickery, in order to exercise our rights without falling afoul of malum prohibitum legislation.
To be more precise, there is a fairly wide range of things I can do with Title I firearms that I cannot do as well, or at all, with Title II firearms.
For example, if a friend wants to borrow my KSG (which is a Title I firearm) I can lend it to him for any non-criminal use (E.G. to hunt, to shoot in competitions, target practice, even home defense) without running afoul of any law. In short, there is no legal need for me to maintain absolute and total control over it at all times. If I wanted to sell it, I could legally (although perhaps not advisably) do so without even so much as a bill of sale.
However, were I to have a Remington 870 of the same overall length as the KSG, due to it’s differing proportions (figure 8-10″ barrel) it would be categorized as Title II, and therefore if I were to own such as an individual, I would need to maintain STRICT control over it; I wouldn’t be able to lend it, and I wouldn’t even be permitted to allow my spouse/children/parents/etc. to have knowledge of how to come into possession of it (I.E. nobody else can legally know how to open the safe I store it in). If I wanted to sell it, I’d have to find an interested buyer, work out payment terms, and then wait for the buyer’s approved form 3/4 to come through — in other words, I’d have to hold onto it for something like six months after I’ve sold it.
However, there are two other ways for a non-FFL/SOT to legally possess Title II firearms: Trusts and Corporations. On the whole, the latter is not advisable, and for a variety of reasons. Thus, it really comes down to the revocable trust (Irrevocable trusts can be used as well, but have drawbacks that make them less desirable in most circumstances).
When an individual owns a Title II firearm, that individual is the SOLE legal possessor; When a trust owns a Title II firearm, any official agent of the trust can engage in the activities of possession and use of the Title II firearm(s) thus owned.
Thus, what the commenter above you is saying is that it’s a travesty that we have to involve a lawyer and legal trickery in order for ownership certain of firearms, which fall afoul of certain arbitrary federal prohibitions, to be practical.
I bow to your eloquence, Sir. 😉
yes and no to what you just stated………………. you can use the items, but you do not OWN those items, they are there for you (and other members) under LOAN……the trust maintains ownership at all times, however you are responsible for legal ramifications while the firearms are in your possession. You essentially give up the right to own and bear arms, by placing the ownership under another entity
Yes, We have freedom of speech, but not everyone speaks clearly or coherently. People with speech impediment pay money to doctors to get better, right? So why is there a problem to pay to attorney? You want to do it yourself, sure do it yourself, just make sure you are smart enough.
What cz82mak said,
Can I get an A – men!
How horrible can it be compared to all the people killed in drunk driving accidents? Yet, all you need is a good lawyer.
I’m on a NFA Trust with my brother, sister in-law and his 2 year old son.
Actually in the process of trying to figure out which Surefire suppressor adapter will work best for my AR-10…
Anyways, here in the Indiana we can’t have SBS’s but I cannot for the life of me figure out why!
It was really easy to get onto a trust like this, just had to have a witness with proper ID and a free notarization.
And yes, my brother could “loan” me anything in this trust and since I am listed, I am legal to hold and shoot goodies.
SBR’s are legal in Indiana
Good advice for anyone interested in NFA items.
I like this, and it’s complicated enough to keep them from restricting it since they would be stepping on a lot of toes.
It’s possible to set up an LLC (Limited Liability Company) for the same purpose. Depending on the state, it might be much cheaper to create than a trust, and can continue forever.
LLC + Type 10 FFL + Class 2 SOT = Perfect storm.
Assuming that you are actively engaged in the business, then agreed, that is the right way to go. If you are looking to do the FFL + SOT simply to be able to hold late model NFA weapons, then you could be in trouble. The ATF actively reviews FFL renewals, particularly ones with SOT to make sure that you are in fact actively in the business. If not, they’ll pull it and you’ll have to get rid of your NFA items pretty fast.
Lost ’em in a tragic boating accident, which I miraculously survived. Pity.
In all seriousness, though, setting up a small shop would be fairly easy. Sell a dozen or two items per year to keep the BATFE(ASRBF) happy, but mainly keep it a hobby business.
The main advantage of the trust is that as a Revocable Trust, it can pass profits/losses to me the trustee and I don’t have to file a separate tax return. I’m not sure about an LLC, but my company is an S-Corp and while we pass 100% of the P&L to the owners and their tax return, the company still must file an informational return to the IRS and that costs time and money.
Also, since you are dealing with NFA items, you probably would still want a lawyer to look things over on an LLC to make sure that you are not doing anything that could be problematic for you, so you are still going to have to pay for some lawyer time. Add to this that in some localities (mine being one of them), we have to pay an annual corporation fee to the state.
Really, it boils down to what your goals are.
Generally speaking, corporations require more regulatory compliance, as well as having more restrictions on possession/use of corporation-owned Title II firearms. (For example, an employee at a range that rents Title II firearms can legally possess them while he is on the clock, but once he is off the clock such possession would no longer be legal).
Generally speaking, trusts require less routine regulatory paperwork, and have fewer restrictions restrictions on how Title II arms can be possessed by trustees/beneficiaries. The downside is that trusts are fairly soluble, which can leave you in illegal possession if you’re not careful.
On the whole, each has it’s pluses and minuses, and therefore one or the other may be more appropriate for you based on your individual circumstances and goals.
Many advantages to using a trust over a limited liability company. One of the major drawbacks of a limited liability company is the annual fee associated with it. In addition should you fail to do the necessary required in the state Your LLC could be administratively dissolved and you would be illegally in possession of the firearms in addition updates to the corporate documents must be made every time you want to add or remove an authorized user limited liability company is not necessary with the GunTrust.
I went the Trust route. I’m currently at 5 1/2 months for supressor and 3 months for SBR stamps. When I get the first stamp back with no issues I’m going to do 2 more. BTW the wait is agonizing!
Could you point me in the right direction on how to set up a trust?
I do not live in a free state and am unable to own suppressors or full-autos. I checked into the trusts and unfortunately since those items are illegal in the state, the trust will not help, as it will not overrule state law. Thanks for passing that info on to others!
California?
Yeah.. I’m in contact with a NFA lawyer right now who’s worked with a few people on Calguns.net. Hopefully I can get some more answers… What would be nice is some kind of federal or state permit allowing you to remove the bullet button… Now that would be nice…
You mean something like the U.S. Constitution?
+1 for the Constitution.
The dealer I bought my suppressor from helped me create my trust. It was a free service since I bought the item from him. He is a notary public so the trust forms and the form 4 were completed at the counter. It took about 5 months for the stamp to come back. Interesting enough my stamp came back about 2 weeks after I called for a status.
If the dealer is not an attorney and familiar with both the Federal and State laws concerning NFA items, you might want to have your Trust looked over by one. My NFA trust is a fairly simple one with a couple of beneficiaries and two trustees, but it runs 37 pages. You want to make sure that it is affording you the protection you expect.
One such example – I assume that you knew to pay for your suppressor using either cash or a check/credit card attached to a bank account in your trust’s name. If you used a personal check or credit card, you could technically be in violation of the NFA as the paperwork you filed states that the item is being transferred to the trust, but you, not the trust actually purchased it. If not, while it is not particularly likely that the NFA is going to show up at your door, if, down the road, someone in the Administration decided that it would be a good idea to eliminate a bunch of NFA items, they could audit transfers and declare your suppressor illegal. This would open the door for them to seize it and potentially prosecute.
Going forward, I would bear this in mind with future transfers (my purchases are being made either in Cash or Bank Check that identifies my trust as the purchaser). This includes my remittance to the ATF. For anything in your possession, you might be able to create a paper trail in your trust’s log book (in which you need to keep records of acquisitions and disposals) that you the person transferred the the cash into the trust on the same date that you made the purchase. This would give you some (albeit not great) level of documentation that would support your contention that it was the trust, not you, who purchased the suppressor.
The ATF doesn’t have access to those payment records, and I don’t know that your FFL is required to save them. The only thing the ATF should have is your check that you sent to them. I am not necessarily disagreeing with your premise, but I absolutely disagree that it’s illegal, nor have I ever heard of the ATF ever cracking down on this. You’d figure they would have said something if it was a problem. They don’t care who buys it, they care who owns it.
Also, remember that you own your revocable trust… you do have the option to transfer things directly to it at purchase.
Now, if you buy a suppressor as a private individual and then silently transfer it to your trust, that’s a serious problem…
I’m no lawyer, but here is a snippet from the document (prepared by lawyers) explaining the issue with making purchases using personal accounts:
“The technical violations occur when the dealer does not transfer the items to the trust but sells them to the individual, and the individual transfers the items to the trust. Neither of these transactions have been approved by the ATF and are therefore improper.”
I do agree that the ATF would have to work hard to locate information about improper transfers, but all it would take would be for them to request the credit card records of the shop in question on the date the purchase was made. They have the purchase date as it is noted on the Form 4 when the dealer fills out their portion. Then it is simply a matter of matching things up – if they can find a credit card record for you on the date that matches the form, then you may have a problem. While not all dealers keep detailed records, some do and any records would be subject to subpoena.
Again, this all assumes that someone at ATF really wants to nail you badly, but when it is so simple to eliminate this avenue of attack, why not do it?
What you just quoted is not talking about an individual paying for trust property. The key word is “transfer”. If the _transfer_ is done to a private individual (that is to say, he fills out the form 4 as a private individual, not a trust), and then that private individual stuffs it into his trust with no second transfer (and tax stamp), he is committing an illegal act. The funding of the purchase has nothing to do with it.
That is the scenario I addressed in the last paragraph of my previous response to you. And, I agree, it is a huge legal problem.
The reason you should be paying from trust funds is to maintain the legal fiction of the trust so that it will hold up better in court. It has nothing to do with the ATF per se, IMHO.
give an example as that could possably be done mistakenly it seems…..this is all new to me….this is the first time reading on this thread…..i willsoon get a nfa trust, i am in alabama and have no clue as to where to start….it just seems too easy ! and i want to make sure that i dont mistakenly make a serious mistake…!
If my wife comes shooting with me and I loan her my gun with silencer affixed, I have just committed what the ATF considers a “constructive transfer” and could be prosecuted under the NFA.
I’m pretty sure you’re wrong there, Jim. If I remember correctly per the ATF, it’s OK to let other people use the weapon as long as you’re supervising them. If she uses your silencer while you’re with her it’s all good, but if you walk back to the car to get more ammo, THEN it becomes a felony.
I’ve been thinking about getting an NFA trust. The main thing holding me back is that I don’t have the extra money right now to buy any NFA items, so there’s no point doing it yet.
This.
Were I to own a Title II firearm, I could legally allow another to physically hold/use it SO LONG AS I MAINTAINED “POSSESSION” of it. In effect, what this means is that, as long as I am present (and therefore officially in possession), I may legally allow another to have temporary use of my firearm without issue.
Having just read a redacted ATF letter to another blogger, the ATF clearly stated that there is no “transfer” when allowing another person to examine or utilize an NFA item as long as the legal possessor kept the item in his sight, and it was returned immediately after examination or use. This is an important concept to state correctly, as many gun trust lawyers fraudulently use it as a reason to sell their wares–“to keep your unknowing friends and family and yourself from prosecution!”
So is it restricted to NFA items or could ownership of other items also fall under the trust?
Seems like Car titles, heirlooms, and other things you want your children to have would be something to consider as well. Basically serves as a will of sorts, but could allow the transfer of said items in case of bankruptcy, felony, or lien and other parties want them or you are no longer able to possess.
For most people it doesn’t make much sense considering the costs to set them up. Most things aren’t as difficult to transfer as NFA items.
This is a great post. I’ve heard of NFA trusts before but never really understood them. I’ve also heard you can transfer your “regular” firearms into a trust, so should something happen to you legally or otherwise, they aren’t taken away from the trustees much like an NFA trust. Anyone know if this is true?
That is what I want to know as well…I have 3 generations of fine firearms that I want to ensure make it to the 4th, 5th, and so on.
same here….i want a trust to place such things in AND get my first suppressors, maybe an sbr or two….i have two very big safes with well over 30k in firearms that would break my heart if they gotten taken away and my children couldn’t collect them also…..some of which have been handed down 5 generations and wound up with me ! i am in desperate need of a ”revolkable gun trust” or ”NFA” trust…..i think i need to start looking for attouney’s who know about this….
http://www.199trust.com
199trust.com
The site is exactly what it’s names suggests. They write Revocable NFA Trust contracts for $199.
The legal advice I have been given was to not do that, and instead use a separate trust.
Thanks Jim! Great article. I have been wondering about trusts. I made my first handgun purchase last month and had it shipped to a FFL close to home. I got to talking with the guy and NFA items came up in the conversation. He commented that here, in Volusia County, Florida, the sheriff does NOT ever sign off on NFA applications. My FFL guy said he had a trust and has no issues getting the NFA items. His only problem is with how long the ATF is taking to approve silencer purchases. But, the trust definitely sounds like the way to go.
Paperwork, Schmayperwork…
A word of caution to all of my brothers and sisters who want to buy a suppressor…
Before paying anything to your local Class III dealer I strongly suggest you make a phone call. This call should be made to the manufacturer of your intended item so that you can be sure your dealer is in good standing with them. Trust me…I’m out a boatload of $ and still do not have a suppressor…
I went the trust route when I purchased my Thompson SMG. A lawyer out of Jacksonville Florida has them available. They have a secretary that can help you walk through the NFA hoops. It was perfect and easy to fill out and have notarized. Yoouu don’t need the Chief LEO signature and you can add more NFA items to it. You can have your wife and kids on it as trustees. I case you die they can handle the items and keep or sell them. It costs about $600 but its good forver and legal. As long as these item are legal in your state it works smooth. The $600 seems reasonable compared to the cost of NFA items. My experience was easy and smooth.
Just as a followup to my LLC post….. You don’t have to be in business to have an LLC, nor do you have to file corporation reports or fees. It’s not a corporation, rather an artificial person (much like a trust) with an owner or multiple owners. Depending on the state, an LLC may be created for as little as $50 and never have to file a report or pay an additional fee. LLCs can have multiple “members” (owners) – which can include your wife, children, friends, etc., and these members can change over time. If you die, then successor members will continue the LLC – forever if you wish. ATF rules for succession of ownership will apply.
In addition, your LLC can hold a C&R (or FFL), and you (personally) are not licensed. Check it out – lots of advantages.
You can find a lawyer to set up a gun specific trust at http://www.guntrustlawyer.com/
A friend did it and got some of us (his friends) put on it so that we can have access to the items, as well. I think it cost him around $600.
I’m late to the party on this one, but hey, I’ve been out of town using the stuff we talk about here, so I’m awarding myself a pass.
“If she uses your silencer while you’re with her it’s all good, but if you walk back to the car to get more ammo, THEN it becomes a felony.”
I can’t decide if this is the stupidest thing I’ve ever heard, or if it makes sense because someone might try to stretch “just going to the car for ammo” to “just going to the store for beer” to “just running home to walk the dog” and so on.
Ian: ChainsawWieldingManiac is correct. Everything I’ve ever read has said that it’s fine to use a trust to ease the transition of firearms between generations, but make it a separate trust. One for your NFA items, and a separate one for your non-NFA weapons, your gold bars, your silver coins, etc. You may want to transfer all that secondary stuff into the name of someone who is legally unable to possess the NFA stuff, like a minor child or someone who lives in an NFA prohibitive state, and having it all under one umbrella makes that difficult.
i see that point perfectly….this thread has been so very interesting to say the least…..and i’m going this afternoon to look up a good lawyer….which is usually hard to do, but i may know ONE. i’m gonna have a couple of revolkable trusts as soon as possible, i’m not getting any younger that’s for sure.
Hay Jim how long for the turn around time take u for your nfa items
Hi My name is Eric, I am one of the owners of 199trust.com. Seeing that this post is relevant to what we do I figured I would drop a line.
Where most charge $400+ for a Gun Trust, we only charge $199. We email your documents within 24hrs and stand by our product. As you can imagine we have done more than a few revocable NFA specific trusts and have had success with them. I encourage you to check out our website and consider using us for creating your trust documents before paying someone else too much for the same service.
Feel free to give us a buzz at (888) 442-4307 or shoot us an email at [email protected].
V/R,
Eric W
199Trust.com
I have a question about the gun trust
With the trust set up will I still need to pay the 200 dollar tax for each item?
200 for suppressor
200 for sbr, ect………
Yes. $200 tax stamp for each new item transferred into ownership (whether trust, individual, corp, etc.).
so if your gun safe contains only your NFA Trust owned NFA weapons, would it be advantageous to have the *safe itself* owned by the trust?
What would be the point?
that’s what i’m asking, would there be a point?
just to avoid any arguments about the ownership of it and it’s contents?
I’m not a lawyer, but I don’t see one. On the other hand, transferring it into the trust doesn’t cost anything, just a couple pieces of paper, so I don’t see a downside either.
can use “Quicken Will Maker”, a lot cheaper to create trust?
You can, and many people do. Others question how legally solid it may be. I don’t know if there have been enough instances to empirically determine if it’s a good idea or not.
One thing you hear a lot is words to the effect of, “I made mine in Quicken WillMaker for free, and I’ve bought a half dozen NFA items on it. The ATF has never had a problem.” What those people don’t realize is that by approving the tax stamp, the NFA branch is not passing judgement on the legality of the trust or its language. They’re not reading it to make sure every i is dotted and every t is crossed, legally.
If you get a trust written by an attorney who specializes in such things, it ensures the language is appropriate and specific for NFA items. A WillMaker trust is fine for passing your TV, car, and money to your beneficiaries, but it doesn’t take into account things that are NFA specific. How does the WillMaker trust deal with it if your only surviving beneficiary is a minor and cannot legally possess the NFA item? What if your beneficiary moves to a jurisdiction where they’re not allowed to own the NFA item?
Getting a trust drawn up by an attorney who knows what they’re doing does not cost a whole lot, and you get something that is specifically tailored to you and your specific circumstances, rather than just fill-in-the-blank, like some big MadLib. Considering all the hassles that could come from having a trust that’s either poorly written or worse, legally invalid, do you really want to potentially put your beneficiaries through all that for the sake of saving a couple hundred bucks?
Insurance? How does this effect NRA provided insuance for your firearms?
I am an attorney, have written a few trusts, but offer no opinion whether one can “get by” with a DIY software package to create a gun trust. Certainly, NFA items raise issues not normally addressed in typical trusts, and certainly not “hard coded” into WillMaker software. I do think, however, that it is best (not essential) to have a separate trust for your NFA items, and another for cars, household goods, etc. I probably will put ALL of my guns in my gun trust, even non-NFA items (examples, the threaded-barrel pistol the silencer fits, guns not legal in California or other states where my beneficiaries reside or may be residing at the time of my death– such as guns with threaded barrels, “high capacity” magazines, pistols lacking magazine disconnects or loaded chamber indicators). And one cannot assume that certain gun-unfriendly states in which one’s kids live/might move to won’t continue to ban ownership, even through inheritance, of non-NFA guns that have (or lack) various features/mechanisms.
BTW, a compelling reason for purchasing NFA items in a gun trust is to shave time off getting the stamp. Yesterday, a dealer (in Arizona) told me he is experiencing 8 to 12 month waiting period for individual purchases, vs. 6 months when a gun trust is used. That alone (for me) tips the scale in favor of a gun trust, even for somebody (e.g., no kids, no gun-enthusiast friends/relatives) who doesn’t care what happens to his goodies after he dies, and is fine with them getting destroyed, turned into the police, etc.
I think it is sad that some attorneys are charging $600 or more for completing their in-house gun trust form they have perfected over the years (and for which they have been paid by prior clients many times over), often having it done in many cases by a paralegal who puts an hour or two of his/her time into it (or less). They are entitled to “recoup their R&D expenses” but have long since done that. I am not convinced that “you get what you pay for” necessarily applies to an attorney specializing in this area who charges only $200. Probably is just as good as a $1000 gun trust. Too bad there isn’t a website with attorney-prepared “use at your own risk” gun trust forms for every state in which NFA items are legal.
A final note– just because the BATF issues a stamp to a trust doesn’t mean they concerned themselves with, or passed judgment on, the legal efficacy of your gun trust. They just look at a few items to satisfy themselves that it looks like a trust “entity” has been established (a trust is really not an entity, but a means of holding title; for whatever reason, the Feds treat it as an entity, as they would a corporation or LLC, for purposes of transferring NFA items).
Sorry for the lengthy post (or any typos).
Thanks for the reply. I have two small issues. First, on the “time shaving” aspect of getting a trust. Several years ago, before most people had heard of trusts, I think it was slightly faster, but even then only slightly. However, for at least the past two or three years, there has been no discernible difference between a trust and an individual in the time it took to get your stamp. People have anecdotes in both directions, but the plural of anecdote is not data. Nowadays, the chief reason people get a trust is to avoid the necessity of a CLEO signature in jurisdictions where they refuse to sign. Those people need a trust. In the past few years there’s also been a surge of people who want a trust, because they’re concerned about multiple-party possession, and simply because of an idea that “it’s just easier” because you don’t have to muck about with fingerprints and such.
My second comment is about cost. I don’t have my trust yet, but I’ve been shopping (and generally being lazy about it) for the past three or four months. $600 is way high, in fact it’s higher than anywhere I’ve seen in my research. The highest price I’ve been quoted was $425 from the Apple Law Firm that Jim mentioned in his post, and the majority of the rest settle squarely in the $2-250 range. I don’t consider the latter amount to be excessive for real legal help if it ensures that I don’t have to worry about it ever. This is especially important, in my opinion, if your future plans are for more than just the one NFA item, or if your family live in both gun-friendly and -unfriendly areas. A properly written NFA trust takes minor children, prohibited persons, and persons living in prohibited areas into account when handling your affairs after you’re gone. A Quicken (or most gun-shop) boilerplates do not.
I have no quibbles with anything you wrote.
Since my post last week, I have prepared my own gun trust. Having now done that, I have a new-found opinion about DIY trust-drafting. It will work, in all likelihood, for passing the BATF “sniff test” (“It smells like a trust to us”) and having your NFA weapon transferred directly into your trust. It may or may not save you time getting the stamp/approval. But, for estate-planning purposes, for passing on guns, etc. to children, or other relatives, I believe having your trust document prepared by an attorney who specializes in such matters is the way to go, for a reasonable fee. Issues I dealt with in mine include the following, which “off the shelf” templates or software rarely address adequately, or at all:
1. Should the trust continue for some stated period of time after the grantor’s death, in order to fully utilize the advantages of gun trusts? Typically, living trusts require the distribution of the trust property (and trust termination) shortly following the grantor’s death. Do the laws of the state which govern the trust allow a “living” trust to continue for several years after the grantor dies?
2. Does it make sense to include in the gun trust certain weapons that are not NFA regulated, such as the threaded barrel gun that is used with the suppressor, so that they are passed on together to the ultimate beneficiary, or should the non-NFA item be handled otherwise?
3. If non-NFA items are included, should they be included at the outset in Schedule A? Is it really the BATF’s business, if required to provide them a copy of your gun trust when procuring an NFA item, to have a detailed listing of non-NFA weapons that your trust owns?
4. How to deal with a successor trustee or beneficiary who likely is to move to a state where he/she cannot possess NFA items (or some non-NFA items that you decide to include in the gun trust)? Or what if the laws of that state change, without anyone moving to another state, such that he/she cannot possess such items?
5. Under the laws of the grantor’s state which govern the trust, what are the implications of having two or more co-trustees (so that they can all “share” in the unaccompanied use of the NFA item)? Will all major changes by grantor to the trust document require notifying all co-trustees, or in some cases obtain all or a majority of their consents?
6. If the term of the trust is written to continue for years following the grantor’s death, for the use/enjoyment of successor trustees prior to the ultimate distribution to the beneficiary or beneficiaries, should it terminate earlier in the event the perceived “loophole” of gun trusts is closed by BATF/others (as is currently rumored), such that there really is no point to the trust continuing?
7. If co-trustees are named, is there clear protection for one co-trustee against the wrongful conduct/violation of law by another co-trustee?
8. If (as rumored) federal law someday might require bonding or insurance associated with NFA or even some non-NFA weapon possession/ownership, who pays for that, particularly following the death of grantor, and the terms of the trust are pretty much fixed, no longer revocable (or easily amendable) at that point?
9. Do the laws of the state which govern the trust require me to identify by name each beneficiary, or can I let a future trustee select from a class (e.g., “any blood relative of Grantor then over the age of X, who in the opinion of Trustee has demonstrated responsible and safe gun ownership traits”)? Do the laws of such state prohibit a trustee from selecting himself or herself as the beneficiary?
10. May there be two or more beneficiaries with respect to the same NFA item under federal law? If there can, would it be prudent to so provide? What if they reside, at that time, in different states with different rules?
11. Would it make sense to have my gun trust witnessed and/or notarized for any reason, even if the laws of the state governing the trust do not require either? And if I elect to do so, should all future amendments, including adding more items to the trust property/Schedule A be similarly notarized and/or witnessed?
12. Should I distribute copies of my trust document to all named successor trustees? If I do so, what happens if I forget to send them copies of any revocation or future amendments?
These are only some of the issues I pondered, and no template or software program that I know of will help provide good answers to all or most of these questions. An attorney who one might elect to engage to draft a gun trust should be able to give guidance in addressing these, and other questions, that may arise. It might save attorneys’ fees to think through these and other issues before engaging a qualified attorney.
I started out with a view that one should not have to hire an attorney for a “simple” gun trust. Now having done my own, and being an attorney since the ’70’s, I see the wisdom of avoiding the DIY route. I saw a few gun trust forms that have been posted on-line. Some of them were really, really bad for any purpose beyond proving to the BATF that a trust had been formed (examples: gun trust that has a Homestead Exemption clause, even though no real estate is involved; failure to provide for waiver of bond; failure to have sufficient number of successor trustees; failure to address what happens if a beneficiary moves to California/elsewhere that isn’t NFA weapon friendly). Anyway, I don’t intend to be a regular contributor to this forum, nor am I soliciting business to draft anyone’s gun trust (I won’t do that); I felt it might be worthwhile to share my experience and thoughts, in drafting my own trust, with those on this forum. Thank you for providing a way for me to do so.
Thanks very much for that information. Several of the concerns you listed don’t apply to me currently, but a couple others do and had not occurred to me.
I have one question/comment:
Based on the article and following comments, everyone seems to accept it as fact that the trustees of the trust are allowed to use the suppressor. But, as both a gun advocate and a financial planner that spends an inordinate amount of time dealing with living trusts, I fail to see the legal authority. A living trust is a form of revocable grantor trust. The trust specifically states that the grantor (the person that contributes property/assets/valuables) to the trust is allowed to use those assets as if they were his/her own. Under that provision the grantor-trustee is unquestionably allowed to use the suppressor. However, trust law does not extend that same courtesy to non-grantor trustees (like your wife and successor trustees). Trustees, with the exception of the grantor, are not empowered to enjoy the trust assets, they are enTRUSTED (hence the title “trustee”) to manage and protect the assets for the BENEFCIARIES. Any action not in the best interests of the beneficiaries is a breach of fiduciary duty (a crime). This becomes even more true after the grantor (you) dies. I don’t see how a wife/trustee, shooting rounds through a suppressor that has a limited shelf-life, is acting in the best interest of the beneficiaries (her kids, in the article above). Seems like a breach to me. If the kids grow up to be spoiled brats, and they decide to teach mom a lesson, I can see where they’d have a case that plenty of attorneys would chase after.
Your post seems to confuse successor trustees and co-trustees. The issues with having your wife shoot your NFA item in front of you being a “constructive transfer” aside, as a successor trustee she is not a trustee until you are unwilling or unable to serve as trustee. Until then, she has no role in the administration of the trust.
Nate, you bring up a great point and give some great illustrations. This fiduciary duty issue was one of the most inportant items I dealt with when creating our gun trusts. As a gun guy that happens to be a lawyer I wanted to enjoy these firearms personally after leaving the prosecutor’s office so I took a look at what my options were and after reading through some of the trusts out there already, realized that There were significant issues that were going to place my family in jeopardy not only now but, even more importantly, when I’m gone so I sat down with some of our other estate planning and wealth management attorneys and drafted our NFA gun trust. To was able to deal with the fiduciary issue in Ohio , and now our other states (Alabama, Iowa, Kentucky, Florida, and Georgia) , through very careful drafting. People often see these instruments as just a way to own guns now when in fact they are estate planning documents on par with our last will. What happens when the grantor is gone is so often overlooked by so many attorneys. We, attorneys, need to counsel clients not just go out and sell a product.
Best,
Erik R. Blaine
http://legaldayton.com/?s=Gun+trust&x=-160&y=-190
Jim Barrett:
This is an excellent thread.
I’m wondering whether the trust set up in the first place has been affected by any new rules or letters from the BATF?
Did everything work out as planned or did someone end up raining on your parade?
Ok, I think I have the answer I want but I would like to clarify. Lets say I have a gun trust and would like to convert my new gun into an SBR now I abousley need to fill out a form 1 and pay the $200 tax stamp, would I have to fill out a form 4 transferring my weapon to the trust paying another 200 smackaroos?
Why would you build the SBR on a Form 1 under your name and transfer it? Can’t you just build the SBR on the Form 1 with the trust listed as the owner from the get-go? I’m pretty sure you can.
Given that Obama wants to strip the 2A rights of seniors who have another person handle daily chores for him or her, having a revocable living trust for all firearms, and all things related to them, including NFA items, where the trustees will include the senior citizen as the main trustee and additional trustees (whether related or not), being any and all individuals who will provide help that the insane Obama Administration would demean as rehabilitative, this would eliminate the ability of the Feds from seizing any firearms and accessories since they become the property of the trust and not the “incapacitated” (**cough-cough**) senior.
Since it is a living trust, should the main trustee actually become incapacitated, he or she can designate another to fulfill that role.
Great thread here! Another question I have since law makers are pushing very hard to eliminate this Trust option, because of the background check loop hole, they assume several individuals are using the trust as a way to purchase otherwise restricted from them firearms, for what ever reason they might have, criminal record, or incapacitated verdict. So regardless of why the trust was used to initially purchase the NFA items, what happens when that law is changed? Would that allow the BATF to seize the NFA items? Or (assuming there is not a restriction of Trustees rights) will you have to pay the $200 per item to reissue them into your name again? And who holds the product during the 3-8mo waiting period? Would that just be you assuming risk of legal issues while transfer takes place back to personal?
My main reason for a trust is to “share use” with close family, and transfer ownership quickly and inexpensively in the event I am to pass these items to my family when i pass away. I am in WA state, and looking for a good Trust lawyer to ask these questions. Thank you so much for everyone who has contributed so much here, some very great information!!
I bought and downloaded one of the generic NFA trusts off the web. I know to get it notarized and witnessed however, there are two blanks for witnesses and I was under the impression only one witness + the notary was necessary in Georgia. Can someone verify that for me?
There’s noticeably a bundle to find out about this. I assume you made sure nice points in options also.
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