This page is designed to provide an overview of Gun Trust laws and to help determine whether a Gun Trust is right for you. Please contact me to inquire further about forming a gun trust. Please note that it is very important to discuss any issue related to the transfer of NFA firearms with an attorney. Reading this page does not constitute the formation of an attorney-client relationship.
What is a Gun Trust and do I need one?
Legally speaking, a Gun Trust is a type of revocable living trust. A trust is “a legal entity created by a grantor for the benefit of designated beneficiaries under the laws of the state and the valid trust
instrument.” Black's Dictionary 6th Ed.
The intent of the revocable living trust is to establish a trust for the ownership and possession of firearms which are, or may be regulated by any federal and/or state law and to provide for beneficial use of certain persons.
There are two main reasons to establish a Gun Trust. The most common reason individuals want to establish a Gun Trust is to protect himself when acquiring firearms that are regulated under Title II of
the Gun Control Act, otherwise know as the National Firearms Act of 1934.
The second main reason individuals desire to establish a Gun Trust is as part of legacy planning, where a person wants to ensure their asset is transferred properly after his death.
The vast majority of guns in the United States are not guns regulated under the NFA. Therefore, for many individuals interested in establishing a gun trust, the primary reason to do so is so that he may control the manner in which his guns are passed on.
A gun trust will allow the firearm owner to address the following main issues:
- Control throughout your life of the possession and transfer of your firearms
- Provide instructions to fulfill your wishes as to the manner and method in which your firearms will be handled in the event of sudden illness or incapacity, so that court intervention is not required, and loved ones do not incur possible criminal liability by coming into possession of NFA regulated weapons.
- Transfer of your firearms in an expedient and well planned manner
- A gun trust can be used to avoid probate and allows you to focus specifically where your firearms will be distributed separate from your general property distributed after death.
In order to determine if a Gun Trust is right for you, consider the following questions:
- Do you have an estate plan?
- If so, do you have any firearms specifically mentioned in the plan?
- Are there guidelines established in writing for those persons who may have contact with the firearms?
- Do you have family members or friends who may come into contact with your firearms that may be prohibited from possessing NFA weapons?
- Even if you do not own NFA weapons, are your beneficiaries or fiduciaries prohibited from possessing firearms by Viriginia law?
- Do you desire to pass on weapons in a quick and efficient manner, avoiding probate?
The Regulatory Scheme
In order to better understand the importance of carefully considering the manner in which firearms are transferred, it is helpful to understand the regulatory background applying to firearms in the United States.
The Gun Control Act ("GCA") is the overarching federal regulation pertaining to firearms and firearm ownership. The GCA is divided into two parts, Title I (Chapter 44 of 18 U.S.C.), which is part of the Federal Criminal Code and Title II, The National Firearms Act ("NFA"), which is part of the IRS (Chapter 53 of 26 U.S.C.).
The majority of firearms owned in the United States are regulated under Title I, and are not NFA regulated weapons.
Brief history of the NFA and Firearm Regulation
The National Firearms Act was passed in 1934 and has subsequently been amended by the Gun Control Act of 1968. The NFA was passed during prohibition where there was a rise in gangster activity and crime. Certain types of firearms, such as machineguns and short barreled shotguns, were targeted in the NFA in an effort to help discourage the possession and use of these weapons.
The act required these firearms to be registered, a $200 tax was imposed on the sale of the regulated weapons, and the Treasury Department had to approve the sale.
In 1938 the Federal Firearms Act was passed relating to the interstate and foreign shipping and sale of firearms. This act required that individuals involved in this practice were required to acquire a Federal Firearms License, pay an annual fee and keep records relating to the gun purchaser.
In 1968 The GCA was passed resulting in further restrictions on the sale and possession of firearms.
Firearm transfers under the NFA
The NFA requires that weapons regulated by the NFA meet certain requirements prior to being transferred (26 U.S. Code § 5811). Generally, the NFA also requires that the transferor pay a $200 tax for each firearm seeking to be transferred (26 U.S. Code § 5811), although there are exceptions.
When a person desires to "transfer" or build a firearm that is regulated by the NFA, this will typically require filing the required form with ATF (either Form 1 (ATF Form 5320.1) for “making and registering a firearm” or Form 4 (ATF Form 5320.4) for the “transfer and registration of a firearm”.). The transfer tax must be paid, if imposed, the form must be approved by the ATF, and the firearm must be registered in the Central Registry (NFRTR).
Merely filing the appropriate papers is not sufficient, in order for the transfer to be legally made, the transfer must be approved by the ATF.
In order for the transfer to be valid, the firearm must already be registered in the NFRTR to the person transferring the firearm.
Once the transfer process has been completed, including ATF's approval, the firearm is then registered to the person entitled to possession of the firearm. 26 U.S.C. § 5841(a)(3).
The application will be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law.
So, a person may be entitled to possess a NFA firearm provided they meet the requirements, but is a trust a person?
As discussed above, the NFA is a part of the IRS regulatory scheme. According to the IRS: “The term ‘person' shall be construed to mean and include an individual, a trust, estate, partnership, association, company or corporation.” 26 U.S.C. § 7701(a)(1).
Firearms as they are defined in the NFA (see below) refer to persons as defined in the Code, which as stated above includes a trust.
Types of NFA regulated firearms
The term “firearm” under the NFA means:
- (1) a shotgun having a barrel or barrels of less than 18 inches in length;
- (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;
- (3) a rifle having a barrel or barrels of less than 16 inches in length;
- (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;
- (5) any other weapon, as defined in 26 U.S.C. § 5845(e);
- (6) a machinegun;
- (7) a muffler or a silencer for any firearm whether or not such firearm is included within this definition; and
- (8) a destructive device.
Shotgun having a barrel or barrels of less than 18 inches in length: a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed shotgun shell.
Weapon made from a shotgun: A weapon made from a shotgun is a shotgun type weapon that has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length.
Rifle having a barrel or barrels of less than 16 inches in length: A weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.
Weapon made from a rifle: a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length.
Any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive.
- (1) a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell
- (2) weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading,
- Includes any such weapon which may be readily restored to fire
This does not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.
Many “any other weapons” are devices that are disguised to appear as a normal everyday item such as cane guns and umbrella guns.
Machinegun: any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.
The term also includes the frame or receiver of a machinegun, and any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun.
This also includes any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
Silencer: any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.
Destructive device and Explosive devices: These are generally munitions of various types such as rocket launchers, bombs and grenades.
“Unserviceable Firearm”: A firearm which is incapable of discharging a shot by means of an explosive and incapable of being readily restored to a firing condition. An unserviceable firearm may be transferred as a curio or ornament without payment of the transfer tax imposed by section 5811, under such requirements as the Secretary may by regulations prescribe.
Not subject to the NFA: Antique Firearm: Any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.