How Firearms Create Special Issues in Idaho Probate

When a gun owner dies and has not prepared a gun trust to direct how the firearms should be handled, it is imperative that the person handling the estate (Idaho probate or Oregon probate) understands the many rules that apply to the transfer and possession of firearms.  Breaking these rules, even accidentally, is often a felony.  A well-drafted Idaho gun trust will assist the trustee with the following issues by giving much more direction that a personal representative (executor or executrix) will receive in a probate proceeding.  Keep in mind that expert legal advice is essential. 

If you are involved in a gun owner’s Idaho probate or Oregon probate, here are a few issues you will need to address:

  1. Is there a master list of firearms?  Some Idaho gun owners or Oregon gun owners leave a list on a computer program, such as Gun Count.  You should try to find a list of firearms, to make sure that all of them are gathered, properly stored, and legal.  As the personal representative, you are responsible for locating and properly storing the firearms until they are legally transferred to the heirs or sold.
  2. Where are the firearms?  Are they stored in a place that is secure from theft, minors, and those who cannot legally possess firearms?  Again, as a personal representative for an estate in Idaho or Oregon, you are in charge and responsible for keeping the firearms secured.
  3. What kinds of firearms are there?  Keep in mind that a simple-looking metal part called a receiver is a firearm under the law, subject to rules about possession and transfer.  Small metal parts may constitute a “machine gun.”  If any of the firearms are subject to a federal law known as the National Firearms Act, strict rules about who can possess and how these firearms are transferred must be obeyed to avoid committing a felony.  If you don’t know what these items look like, get help!
  4. Always use an FFL for all transfers to the heirs or beneficiaries of an estate.  Using an FFL will ensure that you are doing things correctly and that the person receiving the firearm can legally have it.  The cost of allowing an FFL to conduct the transfer and run a background check is well-worth it.
  5. Check the laws of the state you are in as well as the laws of the state where the firearms are going.  Each state has different laws about what types of firearms are legal, whether a firearm must be registered, whether a background check must be conducted, and at what age a person may receive a firearm.  These rules must be strictly followed to avoid breaking the law.
  6. Make sure you follow all laws on how to legally transfer a firearm.   Transfers across state lines are particularly tricky, and the proper procedure will depend on the laws of at least two states:  1) the state laws where the firearms are located and 2) the state laws that exist in the state where the firearms are going. Use an FFL to ship any handgun to another FFL, and always ship a long gun to an FFL.
  7. Use a professional to value the firearms.  Don’t guess.  If you are selling the firearms, you are responsible for getting fair market value or above.
  8. Seek legal advice from a competent estate and firearms law attorney.  Not all estate attorneys are firearms law attorneys, and vice versa.   The Idaho firearms and estate attorneys and Oregon firearms and estate attorneys at Alex Kincaid Law provide you with experts in both areas of the law, to ensure an efficient, smooth, and competent transition of firearms in Idaho probates and in Oregon probates.

We would love to meet with you and answer your questions.   Call us at 208-345-6308 to schedule your free consultation, where you can ask all your questions to an Idaho probate attorney or Oregon probate attorney about Idaho probate, Oregon probate, Idaho gun trusts, Oregon gun trusts, and Idaho gun laws and Oregon gun laws and make an informed decision before you start a project.  We serve clients in Boise, Eagle, Meridian, Nampa, Caldwell, Star, Emmett, the Treasure Valley, the Magic Valley, Twin Falls, Mountain Home in Idaho, including Ada County, Canyon County, Gem County, Twin Falls County and elsewhere in Idaho.  We also service clients in Portland, Lake Oswego, Gold Beach, Brookings, Port Orford, Medford, Oregon, and all over the Pacific Northwest! 

When a Gun Owner Dies: Managing NFA Firearms in Idaho Probate

What would happen if your grandfather passed away, leaving behind his collection of firearms?  What if his collection included a German rifle he brought back from World War II … an MG 42, still fully automatic and in its original condition, taken by him off of a German soldier and brought back as a souvenir?  Is it legal?  Can you accept it when your family says it should go to you?

Sometimes, gun owners die without preparing any kind of estate planning documents.  Other times, gun owners may prepare nothing more than a simple Will that doesn’t address the many rules that apply to firearms.  Often, the person who winds up in charge of a gun owner’s estate may not be a “gun person,” who may not even know that an MG 42 is a machine gun.  This can be a challenging position for a “personal representative” (also known as an executor or executrix of an estate), because there is no room for error when it comes to the gun laws.  Mistakes often constitute a felony.  Even when the person is somewhat knowledgeable about firearms, seeking expert legal advice with a lawyer who is knowledgeable of the firearms-related laws is essential. 

All firearms are subject to many laws that control who can possess them and how they are transferred to a new owner.  Some firearms are subject to even more rules and the restrictions of a federal law known as the National Firearms Act (NFA).  NFA firearms most often include suppressors, short-barreled rifles (SBRs), short-barreled shotguns (SBSs), and fully automatic firearms (machine guns).  If an estate includes any of these types of firearms, extra caution is required to avoid breaking the law.  

How can the personal representative of an estate legally take control, possess, and transfer NFA firearms that belonged to someone who has died? 

A government agency known as the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the ATF) allows a personal representative in a probate proceeding to legally possess NFA firearms that were registered to the person who died.  This means that, so long as the NFA firearm was properly registered to the person who has died, the person in charge of the estate can control the firearm until it is properly transferred to its new owner.  Every legal NFA firearm has paperwork to go along with it.  This paperwork is commonly referred to as the firearm’s “tax stamp.”

Finding the “tax stamp” paperwork is essential. Without this paperwork, the person in charge of an estate will not know if the NFA firearms are in fact legal (ie registered to the person who died).  If the personal representative cannot find the tax stamp for each NFA firearm, they must contact the ATF for help.  Personal Representatives should not take possession of any NFA firearms until the registration is confirmed, because if the firearms are not lawfully registered, they are contraband, and possession of them is a federal felony.

Once the registration is confirmed, the personal representative has a “reasonable” amount of time to transfer NFA firearms to an heir, beneficiary, or other transferee.  What is “reasonable” depends on the specific facts of an estate, but a good rule of thumb is that the firearms must be transferred by the end of probate.  Keep in mind that legal transfers of NFA firearms will always involve completion and approval of more ATF paperwork before giving the firearm to the person who will inherit it.  Getting this paperwork completed and approved by the ATF will take months from the time a personal representative sends it in.

Can a personal representative just take the guns to a dealer or the police?

Many people think that they can just take an NFA firearm to a dealer (federal firearms licensee or “FFL”) or give them to law enforcement.  This is not true.  Remember my caution above about the necessary paperwork needing to be processed?  The personal representative of an estate must exercise complete control and have the firearm in his or her custody the entire time before the firearm is lawfully transferred to the heirs.  A personal representative cannot take an NFA firearm to an FFL for consignment or to law enforcement for temporary safekeeping unless the personal representative has submitted the proper ATF paperwork and received approval from the ATF to transfer the firearm.  Without approval, giving an NFA firearm to a dealer or to law enforcement would be an illegal transfer, and the personal representative could be held criminally responsible.   

What paperwork must be completed by a personal representative?

Most transfers of NFA firearms in a probate can be approved on ATF Form 5 without a transfer tax being paid, so long as the transfer will be to the person named in the Will or the natural heirs of the gun owner if he or she died without a Will.  What if a gun owner states in his Will that he would like all of his firearms to be given to his favorite nephew, but the favorite nephew lives in a state where the NFA firearms are illegal?  In this case, who the firearms will go to will be up to the state law, the personal representative, and the court, but the personal representative will have to pay a tax (usually $200) for each NFA firearm and complete an ATF Form 4 before selling or transferring the firearm to a person who is not a lawful heir.

Again, managing all firearms, but especially NFA firearms, in an estate is tricky business.   Up-front planning with a gun trust keeps the family’s privacy and also saves gun owners and their families much time and expense as compared to a probate proceeding.

To read about more issues with firearms in Idaho probate, read our blog How Firearms Create Special Issues in Idaho Probate.  To learn how a well-written gun trust can solve many of these problems, read our blog on How Idaho Gun Trusts Protect Gun Owners & Their Families.

We would love to meet with you and answer your questions.   Call us at 208-345-6308 to schedule your free consultation, where you can ask all your questions about Idaho probate, Oregon probate, Idaho gun trusts, Oregon gun trusts, and Idaho gun laws and Oregon gun laws, Idaho estate planning, Idaho living trusts, and Oregon living trusts, and make an informed decision before you start a project.  We serve clients in Boise, Eagle, Meridian, Nampa, Caldwell, Star, Emmett, the Treasure Valley, the Magic Valley, Twin Falls, Mountain Home in Idaho, including Ada County, Canyon County, Gem County, Twin Falls County and elsewhere in Idaho.  We also service client in Portland, Lake Oswego, Gold Beach, Brookings, Port Orford, Medford, Oregon, and all over the Pacific Northwest!