Don’t Shoot Yourself in the Foot: Protect Your Firearms in Your Estate Plan

Kentuckians love their guns. According to CBS News, Kentucky ranks number 16 in the number of registered firearms among all 50 states with almost 60,000 federally registered firearms. Ohio, although much more populated than Kentucky, ranks in at number 23. Much like items of personal property like jewelry and antiques, firearms aren’t cheap and can also hold sentimental value among family members and friends. As such, firearms need to be accounted for in an estate plan. Failure to properly account for firearms in an estate plan could result in excessive fines or even jail time for the recipient.

Laws Relating to Transfers of Firearms

Federal law addresses the issue relating to receipt of firearms, stating that “it shall be unlawful for any person to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record; or to transport, deliver, or receive any firearm in interstate commerce which has not been registered as required by this chapter.” These laws are regulated strictly and are enforced with a zero tolerance policy. Violations can create potential criminal liability of up to ten years in prison and a $250,000 fine.

Kentucky state law has few restrictions on the transfer of firearms, although it does prohibit transferring firearms when the person transferring the firearms knows the recipient is prohibited from possessing firearms under Kentucky law.

Applying These Laws to Estate Planning

In light of the current state and federal laws relating to the transfer of firearms, there are several estate planning and probate considerations gun owners need to think about. The owner should list alternate recipients of the weapons in case the primary recipient is not legally allowed to receive firearms at the time of the owner’s death. Another solution for gun owners is setting up a gun trust for their firearms. Gun trusts are considered “individuals” in the eyes of the law, so the trust can legally own the firearms and provide instructions for the Trustees and beneficiaries. Gun trusts also streamline the distribution of the firearms upon the owner’s death and avoid the probate process.

Upon a gun owner’s death, the Executor of the Estate or Trustee of the Trust should take possession of firearms immediately. A new 2016 federal law says that Executors of Estates can take possession of a decedent’s firearms without triggering a transfer. This can protect the Executor from liability for possessing unregistered firearms under federal law. However, the Executor should forfeit all previously-unregistered firearms to law enforcement to avoid potential criminal liability for its recipient.

If you are one of the many people who own firearms, you need to be aware of the laws and regulations relating to the distribution of your guns upon your death. Contact your estate planning attorney to discuss your estate planning goals for your firearms. Your attorney can give you peace of mind that your loved ones won’t run into problems upon your death.

Bill Hesch is a CPA, PFS (Personal Financial Specialist), and attorney licensed in Ohio and Kentucky who helps clients with their financial and estate planning. He also practices elder law, corporate law, Medicaid planning, tax law, and probate in the Greater Cincinnati and Northern Kentucky areas. His practice area includes Hamilton County, Butler County, Warren County, and Clermont County in Ohio, and Campbell County, Kenton County, and Boone County in Kentucky.

(Legal Disclaimer: Bill Hesch submits this blog to provide general information about the firm and its services. Information in this blog is not intended as legal advice, and any person receiving information on this page should not act on it without consulting professional legal counsel. While at times Bill Hesch may render an opinion, Bill Hesch does not offer legal advice through this blog. Bill Hesch does not enter into an attorney-client relationship with any online reader via online contact.)