When you want to leave a firearm to a loved one, there are unique and complex issues involved due to the many laws that govern gun ownership. In addition to dealing with Texas state laws, the executor of your estate and your beneficiary also have to contend with federal firearms laws and even the laws of another state if your beneficiary doesn’t live in Texas.
Is Your Beneficiary a Prohibited Person?
Both federal and Texas state law prohibit certain people from possessing firearms or ammunition in any capacity. Under 18 U.S.C § 922 (d), the Personal Representative of your estate can be held liable if they distribute a firearm to a ‘prohibited person.’ Federal law defines such a person as:
- Someone who was convicted of a crime punishable by over one year in jail or is under indictment for a felony crime
- A fugitive from justice
- An illegal alien
- Someone who illegally uses or is addicted to controlled substances
- Someone who has been declared mentally incompetent or committed to a mental institution
- A person with a nonimmigrant visa
- Someone who has given up their U.S. citizenship
- Someone who has been dishonorably discharged from the U.S. Armed Forces
- A person subject to court orders such as injunctions and protective orders
- Someone who has been convicted of misdemeanor crimes involving domestic violence
Texas law also makes it illegal for many of the same types of people to possess firearms, but there are cases where state and federal law conflict with one another. For example, Texas allows those convicted of a domestic violence crime or felony to own firearms in their homes five years after their release from supervision or custody, but federal law imposes a permanent ban on their gun ownership.
What if Your Personal Representative is a Prohibited Person?
It is important to note that if your estate includes firearms, your Personal Representative cannot be a prohibited person. This is because their duties will involve briefly possessing the guns while the estate is being probated and then distributing them, and federal and/or state law will prohibit them from doing so. If no alternative executor is available, the court will have to appoint another executor of the estate.
Making Appropriate Contingencies in Your Will
If you leave firearms to a prohibited person (or someone who has achieved that designation at the time of your death), the guns will have to be either given to another beneficiary or sold so that the beneficiary can receive the proceeds. The best way to avoid this problem is to make a provision in your will that appoints an alternate beneficiary or executor if either one becomes a prohibited person.
What If Your Beneficiary is a Minor?
In addition to prohibited persons, federal law does not allow anyone under the age of 18 to possess a firearm. However, a minor can still inherit because the law makes a distinction between owning and possessing firearms. If your beneficiary is underage, they can own the guns, but their parents or guardians will maintain possession and control of the weapons until they turn 18.
What if the Beneficiary Lives in Another State?
In general, federal law only allows a licensed dealer to carry out a direct transfer of firearms between people in different states but there is an exception that allows a Personal Representative to distribute firearms to beneficiaries across state lines.
Your Personal Representative may still face challenges, however, because they must ensure that the party receiving the guns can legally own them under the laws of their home state. For example:
- Some states require some or all firearms to be registered
- Some states require residents to obtain a permit before they can own a firearm
- Firearms may be prohibited in some locations
- Many states restrict or prohibit firearms regulated by the National Firearms Act (NFA guns)
Are Your Firearms Subject to the National Firearms Act?
Weapons like short-barreled shotguns and rifles, machine guns, suppressors, and silences are regulated by the NFA. Although the Act only allows registered owners to possess NFA firearms, an exception is made for Personal Representatives of an estate being probated.
There are several unique issues involved with distributing NFA firearms, so one recommended course of action is to create an NFA trust. Guns held in a trust are not usually part of the estate and will be distributed according to the terms of the trust instead of the rules governing probate.
Contact a Texas Estate Planning Attorney
As you can see, including firearms in your estate can present challenges that don’t apply to other assets. The estate planning attorneys at Romano & Sumner have a comprehensive knowledge of how probate law interacts with federal and state law in this area, and can even assist with probate administration to ensure that the distribution goes more smoothly. For more information, contact Romano & Sumner today.