When You Die, What Happens to Your Guns? A Look at the Law, Part 1

Jim Gianelli
By Jim Gianelli March 15, 2015 19:14

guns DSC_3064 edited copy

 

By Jim Gianelli

Like many of us, you’re a sportsman. You hunt, target shoot and over many years have put together a valuable collection of firearms.

There’s that .45 semi-automatic, a couple of deer rifles, a .12-gauge shotgun for squirrel hunting, an elephant gun you got for that Kenyan safari back in the ’80s, the AR-15 you bought long before the state outlawed them, and at least a half-dozen more rifles and pistols.

Now that you’re getting older, you’d like to bequeath your collection to your brother, who’s been a longtime hunting companion, and to your children, who have been firing guns since they were grade-schoolers and are enthusiasts themselves.

So you draw up a will stating which guns go to which relatives and assume that your executor or trustee will deliver them after your death, right?

Wrong.

No topic is more politically polarizing or inspires more passionate debate than government regulation of the transfer of firearms. We’ve all heard the rhetoric: “You’ll have to pry this gun from my cold, dead hands.” “Guns do not kill people; people kill people.” “The only thing that stops a bad man with a gun is a good man with a gun.”

Tragedies like the 2012 Sandy Hook school shootings and other mass attacks in the U.S. have only intensified the debate.

No state, however, has clamped down on firearm transfers harder than California. So restrictive are its regulations, in fact, that some of my clients have considered moving out of state to avoid them.

gun-safe-photo-courtesy-edited

Inside a collector’s safe

The issue is especially relevant here in the Central Sierra. Most of our firm’s clients own guns, and planning for their transfer via wills or trusts is a key part of our business. Because of the complexity and importance of complying with transfer laws – and the severe consequences of failing to do so – executors and trustees charged with handling the estates of gun owners must have a firm understanding of California’s regulations.

These regulations vary not only by what weapon is to be inherited, but by who is in line to receive them.

Assault weapons, for instance, are for all practical purposes nontransferable under California law. And if the relative to whom you’d like to bequeath your deer rifle or target pistol happens to be a drug addict or an ex-felon … well, that’s not going to happen either.

First, let’s look at the firearms to be transferred.

Severely restricted firearms

“Severely restricted” is not a term found in California or federal law, but it describes a range of weapons that are heavily regulated by both.

Included are assault weapons (among them, the AK-47 and Uzi) listed in Categories 1 and 2 of California Penal Code Section 30510. Also severely restricted are .50-caliber BMG rifles, as well as machine guns, sawed-off shotguns and other weaponry listed in the National Firearms Act of 1934 – which was passed at the height of the era’s gangland activity.

You can theoretically take possession of such firearms with a Dangerous Weapons Permit issued by the California Department of Justice after proof you have “good cause” and with approval of the local sheriff or chief of police. But in reality, this almost never happens. It is thus clear that California is intent on eliminating severely restricted weapons by making their transfer almost impossible.

So what happens upon the death of a person who owns such severely restricted firearms? The weapons must be either:

  • Removed from California
  • Sold to a federally licensed firearms dealer
  • Destroyed
  • Turned over to law enforcement

The above, thanks to legislation that went into effect on Jan. 1 of this year, now also applies to magazines holding more than 10 rounds (and larger ones altered to hold only 10 rounds) unless the owner came into their possession before the year 2000. Violators face a $1,000 fine.

So how serious is California about eliminating these weapons?

Transfer of assault weapons or .50 BMG rifles can create felony liability. Mere possession of a severely restricted firearm registered to someone else can lead to a felony or misdemeanor charge.

Yes, executors of wills appear to be protected from prosecution, but the same exemption has not yet been extended to trustees of revocable trusts – which more and more often are being set up to handle estates. This may make it necessary to open a probate and appoint an executor to assure a trustee is protected from criminal possession of severely restricted firearms.

Finally, be aware that “gun trusts” are no longer a refuge for severely restricted weapons. Aimed at circumventing the Dangerous Weapons Permit and sheriff’s approval rules, gun trusts are legal entities or corporations which in some states – starting in Florida in 2006 – have served as repositories for bequeathed weaponry.

The California Legislature has since closed this loophole, and now the person or persons in charge of any gun trust must obtain the required permits and approvals. Gun trusts may still be effective, however, as a way to transfer less restricted guns in California.

Less restricted firearms

The majority of weapons owned and used in California and throughout the nation fall into this category. Included are hunting rifles, shotguns, revolvers and semi-automatic pistols bought for personal or home protection.

But does this mean their transfer is easy? Not at all.

The safest and simplest way to transfer any firearm from one person to another, even in distribution of an estate, is through a Federal Firearms Licensee (FFL) who also has the necessary California licenses to deal in firearms.

Not only do such dealers know firearms, but they can carry out required background checks on intended recipients. I’ll discuss this more in part two, in the next issue of FAN.

‘Wallet gun’ owned by a collector

Antiques, curios and relics

“Antique” is defined by California and Federal law as firearms and ammunition for those firearms manufactured prior to 1899.

“Curios or relics” are defined as:

  • Firearms of “special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons.” Such weapons must be at least 50 years old.
  • Weapons certified by the curator of a government-owned museum to be “curios or relics of interest.”
  • Any other firearms which derive substantial monetary value from being novel, rare or bizarre, or by association with some historical figure, period or event.

Yes, antiques, curios and relics can legally be transferred without going through an FFL, but before doing so I recommend consulting the Bureau of Alcohol, Tobacco, Firearms and Explosives guide to firearms meeting the legal definitions (online at atf.gov). A qualified FFL should verify a firearm’s classification before transfer.

And since January of 2014, transfer of antiques, curios and relics can’t be made unless the recipient has both a California Certificate of Eligibility and a Federal Curio or Relics license. Even then the firearm must be registered with the California DOJ.

Bottom line: Going through an FFL, exemptions notwithstanding, still is the safest and simplest way to go.

After reading all this, you may wonder about the real risk of noncompliance.

Is law enforcement really hell-bent on arresting offenders of the gun transfer laws? Are they going to kick our doors down, put us into the back of a squad car and drag us to jail in the middle of the night for transferring guns to our family members after a loved one’s death?

Of course not. But what if? What if an illegally transferred gun is used in a crime? What if such a gun is used by a family member or friend to commit suicide? This is, of course, when it gets dicey, and the issue becomes all too real for the person entrusted with a gun’s transfer.

In the next issue of FAN, I will outline who may or may not inherit firearms and what conditions must be met. And no, as you might imagine, it’s not simple.

Jim Gianelli is a partner in Gianelli & Polley, a Sonora law firm. Invaluable in compiling this piece, he notes, was Robert and Richard Gorini’s “Gun Laws: A Guide to Law Affecting the Transfer of Firearms in California from Estates and Trusts,” which appeared in Issue 4 of the California Trusts and Estates Quarterly in 2014.

Copyright © 2015 Friends and Neighbors Magazine
Jim Gianelli
By Jim Gianelli March 15, 2015 19:14
Write a comment

1 Comment

  1. Anonymous August 12, 16:42

    Very good article. I’m facing many of these issues as well..

View comments

Write a comment

Your e-mail address will not be published.
Required fields are marked*