March 2017 Bar Bulletin
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March 2017 Bar Bulletin

A Firearms Transfer Can Be Risky Business

By Dennis Brislawn


Firearms are used in a variety of lawful contexts, including sport and self-defense. Some estimates hold that there are about 100 million gun owners in the U.S. with more than 300 million firearms (give or take) in circulation.

Given this reality, it is fairly safe to say that one or more firearms will appear in an estate planning context whether a person likes them or not. Estate planning attorneys help protect clients and their assets, but firearms are in a class all by themselves — we must consider safety in both physical handling and administration of estate firearms.

Millions of Washingtonians enjoy and share firearms as part of their normal daily lives. Familiarity can lull one into a false sense of security and not only in the physical safety aspect. Unlike with other kinds of tangible personal property, firearms possession and transfer can be criminal if firearms law is misunderstood or ignored.

Consider some scenarios drawn from personal experience:

No. 1: A client takes her firearms, a friend, and the friend’s minor child to a gravel pit, which is routinely used for lawful target shooting. Her friend is “trying out” your client’s firearms. Sheriff shows up and asks who owns the firearms in friend’s and minor’s hands.

No. 2: A client calls and tells you that he took possession of his legally incapacitated uncle’s firearms for safekeeping. Reason given was that caregivers refused to provide service to uncle after learning that firearms were in the home.

No. 3:Prior to appointment of a personal representative (PR), family members go to decedent’s home and remove all firearms and personal property. PR is appointed and demands an inventory and return of the property. Family members state that a federal firearms license (“FFL”) background check is required for return of the firearms.

No. 4:Grantor of a gun trust (a trust specifically designed to administer a gun collection) funds a gun trust with his rifles, pistols and shotguns.

No. 5: Grantor of gun trust dies. Trustee, a Washington resident, is directed to distribute firearms outright to certain family members. One is a prohibited person.

What legal issues are presented? What would you advise if asked?

Federal and State Laws

Both federal and state laws regulate firearms. Four key words are involved: possession and transfer of a firearm between persons. Definitions differ between both titles of the Gun Control Act of 1968 and Washington law. Other states may provide their own definitions. All applicable definitions must be considered in any potential transfer.

The Gun Control Act of 1968 (GCA) consists of two titles that regulate firearms. Title I, State Firearms Control Assistance, is the “original” act. It defines rifles, shotguns and hand guns (for convenience, “conventional firearms”) and regulates firearms in interstate commerce, which includes any transfer of a firearm between residents of different states.

Title II, the National Firearms Act of 1934 (NFA), was incorporated into the GCA shortly after its enactment. It defines and regulates six types of firearms: machine guns, silencers, short barrel rifles, short barrel shotguns, destructive devices (certain launchers, rounds, etc.) and “any other weapons” for certain types of firearms that do not fit other categories.

Reference to the GCA usually means Title I only, while a reference to the NFA means Title II. The primary regulatory agency for firearms in this context is the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE).

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