What Does an Estate Have to Do with Firearms?
“Annie, get your gun….card.”
Last week I drove 200 miles north, through the lush green Southern Illinois and South-central Illinois landscape (where it was not under water) to the 58th Annual Estate Planning Short Course in Champaign. The sole purpose of this column is to share one of the nuggets I took away from that workshop and urge the reader to consider getting a Firearm Owners Identification Card (FOID) card to avoid being in violation of state and federal gun laws because of the presence of the husband’s or wife’s guns in the house.
I think it would be a fair statement that the vast majority of rural households have some sort of firearm in the house, possibly in a secure gun safe.
If you have attended a gun safety or a concealed carry class, you may not need to read this column. You already know that someone in the home (or the truck or the car or the boat or the camper) that can readily get their hands on your gun could be technically in violation of state or federal gun laws. You have probably registered and secured your guns as recommended in those courses. This article is for your family.
Most attorneys who help with the administration of the estate after the death of a family member have heard the following account: “We had all the grandsons come out to the house and we let each of them pick a gun.” In thirty years of practicing law, that did not raise any red flags in my mind. It made sense. The estate representative accounted for the property in the inventory, final account, and final report. Everyone was happy.
I might have been wrong.
Last week I learned from Thomas G. Hamill and Michael D. Whitty’s presentation that this approach has several potential pitfalls. In the scenario described above, the grandmother may be breaking the law if she does not have a FOID card, if she gives possession of a gun to someone who should not be in possession of it, and if she fails to transfer ownership in the correct way.
Even if the estate representative, I will call her “Annie,” has a FOID card and is authorized to possess the firearms, she could still be breaking law if she does not apply to register the firearm in the name of the lawful heir(s) as soon as possible. See NFA Handbook, section 9.5.3. https://www.atf.gov/files/publications/download/p/atf-p-5320-8/atf-p-5320-8-chapter-9.pdf. Granted, Annie probably has a reasonable amount of time to accomplish this registration, but that is a matter of interpretation, not explicit in the law.
Let’s assume that Annie has a FOID card and acts promptly to register the firearms, how does she decide who may lawfully possess Grandfather’s guns? Does she know if one of the intended recipients has been indicted and convicted of a felony, dishonorably discharged from the military, convicted of a misdemeanor crime of domestic violence, subject to certain domestic law orders, convicted of an offense involving the use or possession of cannabis, a controlled substance, or methamphetamine within the past year? See https://www.atf.gov/files/firearms/how-to/identify-prohibited-persons.html and http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1657&ChapterID=39.
What does Annie do about a grandchild who is not old enough to possess a handgun? http://www.justice.gov/sites/default/files/usao-ut/legacy/2013/06/03/guncard.pdf
Is Annie going to take photographs and fingerprints of each grandchild and submit the proper registration form, Application for Tax Exempt Transfer and Registration of Firearm, ATF form 5? https://www.atf.gov/files/forms/download/atf-f-5320-5.pdf
Hamill and Whitty suggested that some estates might choose to establish a Gun Trust or name a special executor to handle the firearms at the time of the death of the gun owner. Those planning steps may be appropriate for only certain gun collectors. I am not advocating that for every household. But most estates will need some assistance with record keeping and complying with the law when transferring ownership of guns.
The point of this column is to urge families to stop and think when planning their estates and distributing the belongings of those who have died. Part of the responsibility of being a gun owner is being aware of the requirements for transferring the firearm to the beneficiaries of your estate without running the risk of forfeiture of the firearm, fines, and (God forbid!) even imprisonment of …Annie.