Who Can and Can’t Inherit Your Guns? A Look at the Law, Part 2

Jim Gianelli
By Jim Gianelli June 15, 2015 12:47

This is the second in a two-part series about the laws affecting firearm transfers in California. Part 1 appeared in our Spring 2015 issue. 

guns-DSC_3064-editedRemember that severely restricted weapons – including automatic assault weapons, sawed-off shotguns and some .50-caliber rifles – are all but impossible to transfer in California.

In this article, I’ll discuss how to bequeath less-restricted firearms, including most rifles, pistols and shotguns, as part of estates or trusts.

For instance, can you leave your vintage lever-action Winchester rifle to Uncle Joe, who served time on a robbery rap back in ’97? Or can your Beretta go to your sister, who means well but can’t seem to shake that meth habit? What about leaving your shotgun to your 13-year-old nephew Bobby, who despite his tender age is a seasoned hunter who knows gun safety rules by heart?

The answers to these questions are no, no and no. Now let’s take a closer look at who can and cannot inherit firearms.

Under California law, you can’t transfer or bequeath long guns (shotguns or rifles) to minors. A minor who possesses such weapons cannot be prosecuted. But anyone who gives, sells, bequeaths or transfers one to someone under 18 – including the executor of a will – can be criminally liable for doing so.

California does not allow minors to have handguns, and they themselves can be prosecuted in juvenile court for possession. There are, however, certain exceptions – such as having the written consent of parents or legal guardians if weapons are for target shooting or hunting.

But if your child finds a loaded firearm in your house, you’ll be the one in trouble: Under state law, those who keep loaded guns at home and accessible to children under 18 can be prosecuted. If a child finds the weapon and “brandishes it publicly or causes injury with it,” penalties can be far more severe.

The no-gun list

For executors or trustees, it is important to know who is prohibited by federal or California law from possessing rifles, pistols or shotguns. The list:

  1. Convicted felons.
  2. Anyone convicted of domestic violence, whether misdemeanor or felony, and anyone who is under a restraining order from an intimate partner and is found to present a threat to that person or to that person’s children’s safety.
  3. Those who unlawfully use or are addicted to narcotics (although the feds consider marijuana a narcotic and California does not). Narcotic use does not include spirits or tobacco, therefore chronic alcoholics unless mentally ill are not prohibited from owning firearms.
  4. Anyone found by the courts to be mentally defective or who has been committed to a mental institution. Under California law, this includes those deemed by a court to be a danger to others, mentally disordered sex offenders, and those found not guilty of a crime by reason of insanity or found mentally incompetent to stand trial. It also includes those in custody because they present a danger to themselves or others, individuals undergoing intensive treatment for mental illness, and those placed in a conservatorship because of a grave disability caused by a mental disorder or chronic alcoholism.
  5. In California, anyone who has violated probation, restraining orders or injunctions by possessing firearms. This state also has a longer list of misdemeanors – those involving violent or aggressive behavior – that generally result in a 10-year ban on firearm possession.

guns-DSC_3119-editedBackground checks

As executor of a will that bequeaths a number of firearms, how can you determine whether any of the beneficiaries are on the above no-gun list?

The best way is to hire a federal firearms licensee-dealer (most local gun shops are FFLs). In handling the transfer of weapons from the estate to those in line to inherit them, the dealer completes required background checks on all would-be recipients.

The executor or trustee should come to the dealer with the heir and the firearm to make a private-party transfer. The heir completes a required U.S. Bureau of Alcohol, Tobacco and Firearms form (No. 4473), and the dealer fills out a Dealer’s Record of Sale (DROS) with background check information on the firearm and the heir. The firearm is then left with the dealer. The recipient – if he or she clears the state background check – can collect it after 10 working days.

Executors and potential recipients should also be aware of a new California law requiring those living with anyone on the no-gun list to keep all firearms in a gun safe, a locked trunk or other secured container. Weapons must also be locked, disabled with a firearm safety device, or stay on the person of their owner.

If the firearm recipient lives out of state, federal law requires that the transfer be handled by both a California dealer and by an FFL in the beneficiary’s state.

The executor or trustee charged with distribution of weapons from an estate may make no more than five handgun transfers per calendar year (although each transfer can include as many handguns as he or she wishes) to avoid being considered an unlicensed dealer. For rifles, transfers must only be “occasional and without regularity.”

Family transfers

California law exempts certain in-family transfers from the above FFL requirements. Covered are transfers from parent to child or child to parent and grandparent to grandchild or grandchild to grandparent – as long as all involved live in California, all children and grandchildren are 18 or older (21 for handguns) and no more than five such family transfers are made each year.

When weapons are transferred, recipients must first obtain a firearm safety certificate (issued by a licensed dealer after a written test is passed). Also a new state law that took effect this year requires those receiving any firearm (including rifles and shotguns) have general firearm safety certificates.

In family transfers, a recipient may pick up a bequeathed firearm immediately (no waiting period necessary) and take it home. A report of the transfer (Operation of Law or Intrafamilial Firearm Transaction Report), including which family members and firearms are involved, must be delivered to the California Department of Justice within 30 days of the transfer (online, oag.ca.gov/firearms).

Not exempt from the FFL requirement are weapon transfers involving stepparents, siblings, cousins, aunts, uncles or in-laws.

Transfers between spouses or domestic partners likewise must go through dealers, and the receiving spouse or partner must have a safety certificate. A firearm may only have one registered owner, who must go through a background check.

The safety-certificate requirement does not apply to estate executors or administrators in temporary possession of firearms pending distribution. But trustees get no such exemption and must, until the state law is changed, obtain certificates.

guns-DSC_3133-editedTransporting firearms

If an executor, administrator or trustee transports firearms to a dealer for processing or a recipient takes a weapon home, another set of requirements kicks in:

He or she must be a U.S. citizen 18 or older who permanently or temporarily lives in California and is legally qualified to possess the firearms being carried.

Handguns must be unloaded and in a locked container (this does not include the glove compartment but does include the trunk of a car). Shotguns and rifles need not be carried in a locked container but must be concealed, typically in an unlocked carrying case. Ammo must be carried apart from the firearms.

Closing advice to executors

Locate and identify each firearm in the estate immediately. Keep those weapons in a secure location, preferably a locked safe, until transfers are legally completed.

Because transfer of severely restricted firearms (assault rifles, sawed-off shotguns, etc.) in California is virtually impossible, arrange for disposal of such weapons by removal from the state, sale to an FFL, destruction or relinquishment to law enforcement.

If you have any doubts whether a would-be recipient can legally possess the firearm he or she is bequeathed, go through an FFL regardless of other exemptions. For safety and simplicity, this should be the rule rather than the exception.

Before accepting the responsibility of being an executor of a will or trustee of a trust involving the transfer of firearms, know that you must become familiar with all laws relating to the storage, transportation and transfer of guns to beneficiaries. Always err on the side of being conservative and safe. The consequences of not doing so are too extreme.

Jim Gianelli is a founding 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 California Trusts and Estates Quarterly in 2014.

Copyright © 2015 Friends and Neighbors Magazine

Jim Gianelli
By Jim Gianelli June 15, 2015 12:47
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