Gifting a firearm is not as easy as making a provision in your will or trust to distribute that firearm to your beneficiary. The Administrator of your estate or trust must consider the following issues before he or she can make such distribution:
- What does the law define as a firearm?
- What firearms are in the estate?
- Who is the designated beneficiary of the firearm?
- Can the designated beneficiary be a gun owner?
- Why does the owner want to gift and transfer the firearm?
Failure to comply with California and federal laws can expose your Trustee or Executor to personal liability, civil penalties and even criminal offenses.
What does the law define as a firearm? California law defines a firearm as "any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion." California Penal Code §16520.
Under the National Firearms Act (NFA), the term "firearm"[i] means:
(1) a shotgun having a barrel or barrels of less than 18 inches in length;
(2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;
(3) a rifle having a barrel or barrels of less than 16 inches in length;
(4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;
(5) any other weapon, as defined in subsection (e);
(6) a machine gun;
(7) any silencer (as defined in section 921 of title 18, United States Code); and
(8) a destructive device.
Under the Gun Control Act (GCA), the term "firearm"[ii] means:
(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;
(B) the frame or receiver of any such weapon;
(C) any firearm muffler or firearm silencer; or
(D) any destructive device. Such term does not include an antique firearm.
The NFA and GCA seek to regulate not only firearms associated with criminal activity but all types of firearms. Exempt from both federal and California law are "antique firearms" and "curio or relic" firearms. California uses the GCA definition of antique firearms as those manufactured before 1899 or replicas thereof. To be exempt under NFA, the antique firearm[iii] must meet both the requirements that (1) the firearm be actually manufactured before 1899 and (2) the ammunition must not be readily available in the ordinary channels of commercial trade. To be exempt under federal and California law, "curio or relic" firearms must be of "special interest to collectors by reason of some quality other than as associated with firearms intended for sporting use or as offensive or defensive weapons." 27 C.F.R. §478.11. For such firearm to be exempt, a California Certificate of Eligibility and a Federal Curio or Relics License must be obtained.
Can Your Beneficiary Legally Own a Firearm?
The next issue is whether the intended beneficiary can take title and/or possess the firearm. The transferee must exercise care in gifting firearms to the following classes of beneficiaries: minors, persons with criminal convictions and persons with drug addiction or mental incapacities. Although a minor can possess certain firearms in limited situations, criminal and civil liability may be imposed on the transferor of such firearms to a minor. Under federal law, it is illegal to possess or receive a firearm by the following persons:
- any person convicted of a felony or a misdemeanor crime of domestic violence,
- any person who is subjected to a restraining order,
- any person who is an "unlawful user of or addicted to any controlled substances", or
- any person "who has been adjudicated as a mental defective" or committed to a mental institution.
California law prohibits the possession or receipt of a firearm by any person, in addition to the foregoing categories, who violated their probation conditions, temporary restraining orders or injunctions. The California Department expanded on the categories of prohibited persons and published a list which can be found by clicking here.
The Administrator must check the criminal background of the intended beneficiary against the California and federal lists of firearms prohibiting categories to ensure that the intended beneficiary is not prohibited from receipt or possession of a firearm. The Administrator may recommend, but may not request or require, the intended beneficiary to submit a Personal Firearms Eligibility Check Application to the California Department of Justice. Another way to obtain a background check on the intended beneficiary is to transfer the firearm through the federal firearm licensee (FFL) who performs a background check on the recipient as part of the transfer process.
Another category of prohibited possessors of firearms are persons with drug addiction or mental incapacities. A person deemed to be an addict to a narcotic drug is prohibited from the possession or receipt of firearms under both federal and California law. Also prohibited from possessing or receiving firearms are persons with mental incapacities including:
- persons adjudicated by a court to be a danger to others due to a mental disorder, mentally disordered sex offenders,
- persons found not guilty by reason of insanity of a variety of violent felonies,
- persons mentally incompetent to stand trial, those in custody for being a danger to themselves and others,
- persons undergoing intensive treatment, and
- persons under a conservatorship due to grave disability caused by a mental disorder or impairment from chronic alcoholism.
After the Administrator determines that an intended beneficiary is not a prohibited transferee, the next issue to consider is the actual transfer of the firearm. One option is to transfer through a federal firearm licensee (FFL). You can bypass the FFL if the transfer is an intra-family transfer which meets all of the following requirements:
- The transfer meets the definition of infrequent under Penal Code 16730,
- The transfer is between immediate family members only,
- A report must be filed with CA DOJ within 30 days of the transfer and detailing the transfer and firearm,
- If a handgun is being transferred, the recipient must first obtain a handgun safety certificate, and
- The recipient is at least 18 years of age.
What Is a Gun Trust?
Another way of transferring a firearm is through a gun trust. Gun trusts are generally established for the purpose of continuing possession and providing for the transfer of certain restrictive firearms. The use of a gun trust may be beneficial in the situation in which a restricted firearm must be removed from the property out of the constructive access of a minor but the Administrator has not yet obtained a handgun safety certificate or dangerous weapon permit to possess the firearm. The popularity of gun trusts arose from the ability to bypass the Deadly Weapons Permit (DWP) process. However, case law and recent legislation have required current and successor trustees to obtain a DWP prior to possession of certain firearms.
The Administrator must take extreme measures as potential liability exists for failing to secure the firearm and for the transfer of the firearm to prohibited persons. We recommend that the Administrator seek legal advice on how to possess and distribute the firearm, if at all possible.
This article was authored by Alyssa T. Nguyen, J.D., LL.M., Certified Specialist, Taxation Law. This publication was based on information provided by Robert Gorini, Esq.
More information on how gun laws affect the transfer of firearms in your estate may be found in an article entitled "Gun Laws: A Guide to Laws Affecting the Transfer of Firearms in California From Estates and Trusts" written by Robert Gorini, Esq. and Richard Gorini, Esq. published in the California Trusts and Estates Quarterly, Volume 19, Issue 4, 2014.
[i] 26 USC 5845(a)
[ii] 18 U.S.C §921(a)(3)
[iii] 18 U.S.C. §921(a)(16); see also 26 U.S.C. §5845(g), CA Penal Code §16170