A growing number of shooting enthusiasts are creating legal trusts to acquire machine guns, silencers or other items whose sale is restricted by federal law — a mechanism that bypasses the need to obtain law enforcement approval or even undergo criminal background checks. The A.T.F.’s regulations, in fact, exempt trusts from background checks, as noted in the Federal Firearms Regulations Reference Guide, known as the White Book, and on the forms for gun sales that dealers file to the agency. Gun owners also turn to trusts because in many jurisdictions, law enforcement officials refuse to sign off on the purchase of restricted firearms, making it difficult or impossible for enthusiasts to buy them as individuals.
Why Do It?
A gun trust is used to safely, and legally, transfer your firearms and National Firearms Act (NFA) items to your family upon death. It will also allow you to more easily purchase suppressors. And, let’s face it, buying NFA items via a Trust is currently months faster as a Trust than as an individual because Chief Law Enforcement Officer (CLEO) is cut out of the process and can no longer unilaterally refuse to process your background check applications.
One thing to note is that it does create some logistical problems. If you move (and plan to take your Title II items), you are compelled to notify the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) through a Form 20. So if you are going to be moving into a rental, you may have a problem securing an address multiple months in advance. If you don’t want to (or cannot, for a number of reasons) move the items to the new state, you can leave them in a safe deposit box or at the residence of a trusted person (in a locked and secured vessel to which only you have access). Another alternative you can investigate is that most Class 3 dealers can store it legally and safely for you…for a small lock box rental fee.
Types of Weapons Held in Trust
Commonly, gun trusts are used for weapons that are regulated by two federal laws: the National Firearms Act of 1934 (NFA) and a revision of that law, Title II of the Gun Control Act of 1968. These weapons are often called NFA or Title II firearms. NFA weapons include machine guns, silencers, short-barreled rifles, and short-barreled shotguns (including sawed-off shotguns), grenades, and others.
NFA weapons must have a serial number and be registered with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, commonly called the ATF or BATF. (If such a weapon isn’t already registered, you cannot register it; it is illegal to own.) They can be possessed and used only by the registered owner. To transfer a registered firearm, the owner must get ATF approval and pay a $200 tax ($5 for some items).
Other federal laws also affect NFA weapons. For example, since 1986 it has been illegal to manufacture machine guns, and only those manufactured before that date may be legally purchased. Firearm Owners Protection Act. State laws may further restrict NFA firearms as well. In addition to WI Constitution: Art. 1 sec. 25 “Right to Keep and Bear Arms,” Wisconsin has various statutes related to firearm possession: WI Statutes s. 175.60 “License to carry a concealed weapon,” WI Statutes s. 813.125(4m) “Restriction on Firearm Possession; Surrender of Firearms,” WI Statutes s. 938.341 “Delinquency Adjudication; Restriction on Firearm Possession,” WI Statutes s. 941.29 “Possession of a Firearm,” WI Statutes s. 973.176(1) “Notice of Restrictions Firearm Possession” and more when it comes to gun transfer: WI Statutes s.66.0409 “Local Regulation of Firearms,” WI Statutes s. 175.37 “Warning Whenever Transferring a Firearm,” WI Statutes s. 813.12 (4m) Domestic Abuse “Notice of Restriction on Firearm Possession; Surrender of Firearms”
Benefits of a Gun Trust
A gun trust can avoid some of the federal transfer requirements and accomplish other goals as well:
Allow more than one person to possess and use the weapons held in trust.
If you name more than one person as trustee, each trustee will have the right to possess or use the trust firearms.
No Fingerprints or Photographs are Required When using an Gun Trust to acquire Title II firearms, no fingerprints or photographs are required.
This is a cost savings and can also significantly decrease the time required to take possession of the items. Often fingerprints have to be retaken because they are not acceptable for the FBI’s criminal database.
Individuals who submit their ATF forms to their Chief Law Enforcement Officer or CLEO are often concerned about who will have knowledge of their firearms. They also express concerns that they will come under additional scrutiny because the police will have knowledge that they are in possession of these more restricted firearms. In most states when using a Gun Trust, neither the CLEO nor the police are given notice that you will be in possession of or own the firearms.
Keep the gun in the trust even after the current owner’s death, avoiding the usual transfer requirements. If you create a trust and transfer firearms to it, you can arrange for the trust to stay in existence even after your death. The trustees and beneficiaries of the trust would have whatever rights you grant them in the terms of the trust. Because the firearm stays in the trust at your death, the transfer procedure is avoided. That means your inheritors don’t have to pay $200 transfer tax, file an ATF transfer form, receive permission from the local chief law enforcement officer (CLEO), and get fingerprinted and photographed.
Help the executor. The executor of your estate—the person who is responsible for gathering your assets, paying your debts, and distributing what’s left—may not be familiar with the rules about ownership and possession of NFA and other weapons. An executor could violate criminal laws by transferring a weapon without going through the proper procedure, taking or sending it to a state where it is prohibited, or giving it to a person who is legally prohibited from owning it. (The Gun Control Act makes it unlawful for certain persons to possess firearms. The law prohibits anyone who was ever convicted of a felony or of misdemeanor domestic violence, is prohibited by a restraining order from harassing an intimate partner, uses a controlled substance unlawfully, or is an illegal alien, to name just some of the restrictions.) When firearms are in a trust, the executor is not involved; the trustee is in charge. You can name a trustee who is well-versed in state and federal gun laws.
Avoid probate. Because the firearms are held by a trust, they do not need to go through probate at your death.
Avoid possible future restrictions on gun transfers. Although no such legislation has been proposed, some gun advocates fear that someday it will be illegal to leave certain firearms to inheritors or transfer them during life. They hope that holding the guns in trust will let them get around any limitations if they are enacted.
What a Gun Trust IS NOT
First off, an NFA Gun Trust is not a way to “get one over” on the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). An NFA Gun Trust will not allow you to violate or bypass state (nor federal) laws and restrictions.
- The Trustee purchasing the item on behalf of the Trust must still comply with the Brady Act.
- If you want to cross state lines (i.e. “interstate transfer”) with an NFA item (“any destructive device, machine gun, short-barreled rifle, or short-barreled shotgun”; there is no mention on the form regarding suppressors), which includes going to a competition, moving, hunting in another state, etc., you must notify the BATFE months in advance of the crossing via a Form 5320.20.
- You cannot take an NFA item to a state that does not allow it. (e.g. you cannot take a short-barreled rifle to Washington, New York or California, as they are illegal to possess in those states).
- If you plan to move (and take NFA items with you), you must file a Form 20 with the BATFE and let them know what the new registered address of the NFA items is going to be. You must do this many months in advance.
- If a Trustee lives out of the state they can still be involved in the trust but can only access and use the restricted items in the state where the trust is registered, or in those states included on the filed Form 20.
How it works
First, you are going to meet with an attorney that is going to set you up with the necessary documents and instructions.
After the attorney, you are going to go to a bank and seed an account with whatever you feel necessary equal to (or beyond) the minimum. Expect to put in at least $10, though some banks may require more. You are going to fill in your Schedule “A” sheet with the bank information, which is the first property of the Trust and that is the basic requirement to stand it up, making it legal.
Next it is time to go buy your NFA Item. First, transfer the money to your Trust bank account. Then go to your favorite dealer, fill out the paperwork, and pay with the money in the Trust account (you want to set up a clear audit trail and provide some additional protection from “piercing the corporate veil“). You will also submit a COPY of all of your documentation to the BATFE (to include the bank account information).
Now you play the waiting game. You should expect your first submission to take a little longer than future transactions. That is because the BATFE is going to have to do a full review of the submitted documentation. And they are a bureaucracy. With normal people that have poorly funded departments and huge workloads and the stigma of their agency. I’m not defending the BATFE nor making excuses. You should just have an understanding of who, and what, you are about to form a relationship with and set your expectations accordingly.
One of two things will happen. You will be green lighted, the BATFE will send back a copy of your documentation with the tax stamp information filled in as the next line items on your Schedule “A”. You take that and put it into your binder in a sheet protector along with the rest of your documents (and DO NOT remove the old pages as your Trust is a living document). Congratulations. You now have a Title II item registered to your Trust. Follow the laws and have fun.
The other potential outcome is that you will be rejected. It could be an error in the organization documents. It could be the stars did not align the day it was reviewed. Whatever the reason is, it doesn’t matter–you just need to fix it if you want the Trust.
If you went cheap and bought your documents off the internet, you could get cheated. You will probably have to consult a lawyer to get the problem sorted out, which will likely involve redoing the documents from scratch (I don’t think many lawyers would take documents procured from the internet and then back them up). And, yes, you will likely have to start the several month waiting period again.
Making a Gun Trust
A gun trust is quite different from the common revocable living trust, which is used, like a will, to leave your assets at death. A simple living trust allows survivors to transfer trust assets without going through probate court, which saves time and money after your death. It generally terminates shortly after your death, when the trust assets have been distributed to the people who inherit them. Many people make simple living trusts on their own, with the help of a good plain-English book or online service.
A gun trust, on the other hand, may have multiple trustees, be intended to last for more than one generation, and must take into account state and federal weapons laws. If you want to leave guns in trust, consult Paul A. Ksicinski.