Gun Trusts: Protecting Second Amendment Rights for Future Generations

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
— Amendment II, U.S. Constitution

By: Chris Rippy

I often receive strange looks when I first use the phrase “Gun Trust” in relation to estate planning.  When an individual plans for what will be done with his or her assets after death, personal property is often left out of that planning. Most estate planning centers around real property, cash, savings and investments, while valuable personal property traditionally takes a back seat. Firearms often fall into this scenario. Even a modestly sized gun collection can easily be valued in the thousands, if not tens of thousands of dollars. Knowing that firearms present unique issues with beneficiaries, we often recommend that people plan for their disposition separately in their estate plan.

Before deciding to execute a gun trust, the planner needs to know exactly what it will accomplish. Firearm enthusiasts utilize gun trusts for two principal reasons. The first is to purchase firearms that are restricted by the National Firearms Act. Firearms that fall under this Act include machine guns, suppressors, short-barreled rifles and shotguns, and destructive devices. When a restricted firearm is purchased through a gun trust, instead of purchased individually, there are no fingerprint requirements. In addition, when a restricted firearm is purchased individually, the Chief Law Enforcement Officer (“CLEO”) of the county, can arbitrarily prevent the purchaser from acquiring the firearm, as the CLEO’s signature is required by the ATF. This signature requirement is bypassed when a restricted firearm is purchased through a gun trust.  

A second reason gun owners use gun trusts is the ability for multiple people to use an NFA firearm. If an NFA firearm is registered to an individual, only that individual is allowed to use that firearm. If, however, the firearm is owned by a gun trust, multiple trustees may be set up, and all trustees have the same rights and responsibilities to use the firearm.  

Gun trusts also assist individuals with their estate planning needs. A properly drafted gun trust will prevent a person’s successor trustee and beneficiaries from potentially breaking the law. A gun trust gives the successor trustee specific instructions on who may or may not own certain firearms. If a beneficiary lives in a state that has strict gun laws, has been convicted of a felony or a domestic battery charge, has been adjudicated mentally incompetent, or simply is too immature to own a firearm, the successor trustee has the right (and responsibility) to avoid giving the beneficiary the firearm, and continue to hold ownership in the name of the trust.

Gun owners who have significant firearm assets also potentially have Medicaid issues to worry about. Firearms are considered valuable personal property, and are included as assets for Medicaid purposes. Gun owners with $50,000 or more in firearms need to consider creating an Irrevocable Firearm Asset Protection Trust in order to start the clock on the five year Medicaid look-back period.  

All Gun owners know that special issues come with owning guns. This does not change with planning for their disposition after death. A properly completed estate plan should include some planning related to firearms. Only an attorney who is an elder law/estate planning attorney is going to know how to create such a plan.

For more information on gun trusts, contact our firm to schedule a phone or in-person consult.