California Gun Trusts, Part 2

Part one of gun trusts left you wondering what is a gun trust, how can it help you, and will it be worth it after all is said and done?

Before discussing the benefits of a gun trust, consider these California gun transfer requirements.

  • A firearm may only be loaned to immediate family (parent, child, sibling, grandparent, or grandchild) for 30 days or less.
  • Any loan of a gun to immediate family for longer than 30 days, and any loan of a gun for any period to a person outside your close family, must be registered through a firearms dealer.
  • Any person who receives a gun (e.g., as a gift or by inheritance) from a member of his or her immediate family must submit paperwork to the State of California within 30 days.
  • Any person who receives a handgun (e.g., a pistol) of any kind must first obtain a handgun safety certificate from the State of California.
  • Any violation of these regulations is a crime, punishable by imprisonment of up to four years (though most innocent first-time offenses are misdemeanors).

A gun trust is not a trap for those not versed in legal jargon. It is a legal entity that is created pursuant to state and federal laws. The trust is set up after submitting the proper applications to the ATF for manufacturing (Form 1), transferring (Form 4, 5), and transporting firearms (Form 20). Form 23 will also be required for “responsible persons” to fill out. Who qualifies as responsible persons will be explained later in this article.

Some people simply place their guns into their regular estate plans (wills, trusts, etc.). While this may be possible, new California gun laws make transfers of firearms through traditional trusts and estates risky and unadvisable.  Gun trusts are created specifically for firearms and the situations that may arise with passing one on to your children and heirs.

A gun trust will also help owners navigate all the rules and regulations surrounding firearms in America and especially in California. Among others, a gun trust provides the following benefits:

  1. Transfers firearms from one owner to the next
  2. Prevents accidental felonies
  3. Allows temporary use by multiple trustees
  4. Maintains more privacy
  5. Avoids involuntary sale or surrender of firearms prohibited by recently-passed laws
  6. Avoids probate death
  7. Protects ownership
  8. Avoids court issues (minors, new regulations, etc.)
  9. Avoids long delays or eventual confiscation
  10. Manages risk to all other assets

Where a child inherits a firearm in California after the death of a parent, and no gun trust exists, the child would need to follow each step of both state and federal laws to transfer the gun from the estate to the heirs.  A violation could lead to imprisonment. A gun trust resolves these risks in advance, allowing the transfer of the firearm from one generation to another. A gun trust allows the initial firearm owner to plan in advance how to allow access to the firearms, and how to transfer them upon death to heirs, all without burdening the receiving family members with the unknown risks of receipt of a gun.

Without a gun trust, an owner of a firearm will have to pay a tax to transfer all NFA weapons. Along with the tax, the transfer also used to require the signature of a Chief Law Enforcement Officer (CLEO), which were next to impossible to obtain in some circumstances. However, in 2014 the Obama administration passed Rule 41F eliminating the necessity of the CLEO’s signature. In early drafts of the bill, the original idea was to extend the CLEO certification to even those transfers conducted by a trust. If the bill would have passed at that stage, local law enforcement would have had veto power over all NFA applications.

However, as Rule 41F went into effect, instead of increasing the need for the CLEO certification, it has eliminated the certification all together. A notification is still required to be sent to the CLEO though. Rule 41F has created a new definition of who a trust’s responsible person can be. The new definition is as follows; any member of a trust “who has the power and authority to direct the management and policies of the trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of an NFA item for, or on behalf of the trust or entity.”[1] This added security measure to a gun trust ensures that a prohibited person does not acquire the firearm.

The new rule also included the need to have all trustees send in background checks and fingerprints, complicating the overall process more. Another important fact to note is that gun trusts are different from wills in that they are only through the National Firearm Association (NFA). The trusts must be made in accordance to state and federal laws dealing with the NFA.

With the increase in complexity, it is now even more valuable to have a knowledgeable attorney to aid you in starting and maintaining your trust. When choosing a lawyer to help you set up a trust, it is important to pick someone who shares your passions about protecting your assets, will do everything possible to properly start and maintain your trust, and who is willing to explain the complex matters to you so that your trust is your trust and not a mystery to you.

We can assist in setting up gun trusts for you and your family. Our firm can provide insight to the intricate and messy details that gun trusts sometimes entail, that individuals will not find in online sources while attempting to set up their own.

Keep in mind that a gun trust is valuable to you even if your trustees do not share your passion for firearms, or you move somewhere that has different laws, or you own a firearm that has the potential to be banned in the future. By securing your firearms within a trust you protect those assets from future issues, you protect your trustees (authorized users), you protect your heirs, and you protect yourself.  If you are ready to begin the process of setting up a gun trust or have any questions give us a call or send us an email.

[1] 27 C.F.R. § 479.11

California Gun Trusts, Part 1

California Gun Trusts

Part 1 – History of Gun Regulation

Run. Hide. Fight. That is the advice given to people who are involved in a massacre shooting. Run if you can, hide if necessary, and fight if you must. No one should ever be in the situation where “run, hide, fight” is reality, but the fact that these situations do exist brings out a polarizing raft of opinions about self-defense, gun violence, and constitutional law. Recent broadly publicized and horrific massacre shootings have thrust this issue before many state legislatures, causing gun regulations increase immensely over the last several years, especially in California.

For more than 100 years, the United States Supreme Court has stated the Second Amendment of the United States Constitution specifically allows individuals to possess firearms.  While a spectrum of opinions and perspectives about gun ownership in America exists, news and common experience focuses on a sharp division between activists for gun rights and activities for gun safety.  This sharp debate makes gun regulations some of the most scrutinized in America.

Simple firearms date as far back nearly 700 years.  About four hundred years later, the United States sprung into life, and a short 15 years later, congress enacted the Second Amendment. American states began regulating firearms shortly after the civil war.  It was not until the 1930s that the United States government began enacting firearms laws that applied to the entire country.

  1. The National Firearms Act of 1934 (NFA), also known as Title II of U.S. Federal Firearms Law, was written to impose taxes on the transfer of both machine guns and short-barrel firearms, including sawed-off shotguns. When drafting this law, U.S. Attorney General Homer Cummings and his staff wanted to avoid violating the Second Amendment. Instead of outlawing guns, the NFA imposed only taxes and taxes for noncompliance. [1]
  2. Gun Control Act of 1968 (GCA), also known as Title I of U.S. Federal Firearms Law, imposed licensing and regulation on the firearms industry.  The GCA established new firearm crimes, and prohibited the sale of firearms and ammunition to felons and other prohibited persons. The GCA was signed by President Lyndon B. Johnson on October 22, 1968 in reaction to the assassination of President John F. Kennedy, Martin Luther King Jr., and U.S. Senator Robert F. Kennedy. [2]

Both the NFA and the GCA are currently enforced by the Bureau of Alcohol, Firearms, and Explosives (ATF). The ATF is a law enforcement agency in the United States’ department of Justice that deals with violent criminals, criminal organizations, the illegal use and trafficking of firearms, the illegal use and storage of explosives, acts or arson and bombings, acts of terrorism, and the illegal diversion of alcohol and tobacco products.[3] The ATF continues to have a strong interest in firearm issues in the United States, recently prosecuting eight individuals for firearms crimes.

Throughout the years since the first firearms, states have changed regulations to best suit their own evolving situations and interests. California has some of the more stringent regulations and laws related to the ownership of guns, enacting several new regulations within the last year.

Most recently, California Proposition 63 was approved, which created the following new regulations:

Jan. 1, 2017-

  1. Prohibit false reports of lost or stolen firearm.
  2. Prohibit, with exceptions, loan of guns to anyone outside immediate family.
  3. Revise definition of “assault weapon” to prohibit the use of a detachable magazine.
  4. Require all people who owned an assault weapon under prior definition, which had a detachable magazine, to register the firearm before January 1, 2018.

July 1, 2017-

  1. Require gun owners to report loss or theft of firearm within five days.
  2. Prohibit magazines with capacity exceeding 10 rounds

Dec. 31, 2017-

  1. Deadline to register previously lawful “assault weapon” with detachable magazine.

Jan. 1, 2018-

  1. Require all sales of ammunition to be done only through a licensed individual or company.
  2. Require gun owners to obtain state permission before manufacturing or assembling firearm.
  3. Prohibit importation of out-of-state ammunition without a licensed vendor.

Dec. 31, 2018-

  1. Deadline to mark serial numbers on firearms.

July 1, 2019-

  1. Californians must undergo background check to buy ammunition.

With these many layers of gun laws, it seems a person can never own or buy a gun without unknowingly becoming a criminal. From the initial gun regulations of the NFA, to more modern and stricter state regulations, it is becoming almost more of a hassle, especially to Californians, to own a gun.

And even worse, what happens if a California wants to leave a gun to his heirs after his or her death.

The above list of new regulations is a good reason an owner of a firearm should invest in a gun trust. What is a gun trust? Is it part of a will? Or estate planning? Is it a trap to get more money from a gun owner?  These questions will be answered in next week’s blog post.