Gun Trust

COVID-19, Gun Rights, and Gun Trusts

As the coronavirus outbreak continues, discussion is moving from health and safety to political and economic rights.

In March 2020, Los Angeles Mayor Eric Garcetti ordered firearms dealers, ammunition dealers, and other providers to close. He issued that order despite a contrary directive from Los Angeles County Sheriff Alex Villanueva. Initially, Villanueva issued a similar order. After gun rights advocates filed a federal lawsuit, he quickly changed course.

Advocacy groups, including the California Rifle & Pistol Association, filed a similar action seeking to overturn Mayor Garcetti’s order. “Firearm stores provide essential and desperately needed services for police, first responders, private security, and concerned citizens — including those who want to be prepared for potential civil unrest,” said Chuck Michel, an attorney representing the plaintiffs. “The vast majority of jurisdictions in California recognize this. But the city is stubbornly clinging to its dogmatic opposition to allowing people to choose for themselves how best to be prepared,” he added.

Georgia is moving in the opposite direction. Republican state Rep. Matt Gurtler introduced a measure which would suspend concealed carry restrictions in the Peachtree State’s and allow gun owners to carry their firearms almost anywhere. The bill, which Governor Brian Kemp has endorsed, is currently pending.

Updating Current Trusts During Pandemics

Lockdowns and social distancing make it difficult, but not impossible, to create enforceable wills, trusts, and other estate planning documents.

The preparation and drafting is not a problem. After an in-depth conversation about your needs and goals, a Marietta gun trust lawyer can quickly draft a legal instrument.

Attorney-prepared instruments are much more reliable than forms downloaded off the Internet. Frequently, these forms are generic documents meant for property trusts. They often lack the proper language for NFA firearms trusts. Additionally, not all these documents are enforceable in all states.

Additionally, as mentioned, an attorney gives you solid legal advice throughout this complicated process. Try getting that from a fillable PDF.

Execution is sometimes an issue during a quarantine. Normally, the settlor (person who creates the trust) must sign the document before a notary and usually before at least one witness.

These are not normal times, so the normal rules do not necessarily apply. As a temporary measure, an attorney can attach a signature affidavit to the gun trust. This affidavit states that prompt Notarization was impossible due to COVID-19 and that the documents will be formally notarized as soon as practicable.

Permanent coronavirus/signature relief might be on the way. Nebraska Republican Kevin Cramer just introduced the Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020. This bill would legalize online notarization, a controversial process, in all fifty states for the duration of the outbreak.

Online notarization is controversial because there is no way to confirm the signing party was not under duress at the time.

Why is a Pandemic a Good Time to Get a Gun Trust?

Everything is uncertain right now, including your Constitutional right to keep and bear arms. A gun trust is the best way to introduce some certainty into this environment.

Technically, National Firearms Act gun trusts are revocable living trusts. As the name implies, both the terms and the corpus (property in the trust) are revocable during the settlor’s lifetime. The power to revoke includes the power to add or subtract items from the corpus. Additionally, the settlor can add or delete beneficiaries and change the terms of their inheritance.

Everyone is on edge during this quarantine. That includes police officers who stop citizens for routine checks. Since gun trusts prevent accidental felonies, these instruments are very important in times like these.

Assume Sally takes her husband Ben’s car to the grocery store. Ben did not remember that his gun was in the back seat. While she is out, Sally rolls through a stop sign and an officer pulls her over. During a search, he finds the gun.

Apropos of nothing, the officer does not need a warrant to search the car. As the driver, Sally is an apparent owner. As such, she may give the officer consent to search the vehicle. Additionally, if any part of the gun was in plain view, the officer might be able to seize it without a warrant.

Under everyday circumstances, the officer might accept an explanation like “this gun belongs to my spouse and I didn’t know it was in the car.” But as mentioned, these are not normal times. Sally would probably be arrested and, depending on the facts, she might face felony possession charges. Additionally, she would have to spend at least some time in a holding cell or police station, where she is highly at risk for coronavirus,

If Sally was a co-trustee on Ben’s gun trust, she could legally possess the firearm in the backseat, assuming she qualified under Georgia law.

Now assume that Ben is one of the thousands of Americans who succumbed to coronavirus complications and passes away. If his firearms are not in a trust, they pass through probate and become public record. For various reasons, Sally might not want her friends and neighbors to know that she has guns in the house.

Gun trusts preserve privacy. The corpus passes outside probate, since the guns do not legally belong to Ben. They belong to Ben’s trust. That’s even true if, as is usually the case, Ben was both the settlor and the trustee (person who manages the trust).

To further preserve privacy, most gun trusts do not contain inventories. This feature is rather unique among revocable trusts. The trust itself usually lists $1 as the corpus. The complete document package usually includes an inventory which must be updated when gun ownership changes. But for the most part, your firearms remain private. No one, not even gun shop owners, will know the items in your collection.

Finally, gun trusts encourage responsibility. During illness pandemics, some beneficiaries want to immediately exercise possession rights before they are truly ready to do so.

Gun possession history is full of relevant examples. In 1966, troubled former Marine Corporal Charles Whitman ascended the steps of the observation tower at the University of Texas. After assuming a sniper’s perch, he used a high-powered rifle to kill fourteen people and injure over thirty others.

At the time, Auston Police Department officers carried only small revolvers. Additionally, there was no SWAT team or other tactical unit in the mid-1960s. In other words, the cops were totally overmatched.

The carnage probably would have been much worse if a number of gun owners had not retrieved their weapons from home and shot at the observation deck, forcing Whitman to keep his head down and move around.

The real moral of this story is that the private gun owners were experienced marksmen who knew how to use the weapons in their possession. Today, the only way to ensure such diligence is with an NFA firearm trust. Otherwise, almost anybody could buy a gun.

Basic Gun Trust Setup Provisions

Congress passed the original National Firearms Act in 1934, in response to Prohibition-era violent crimes. The law, which has been amended several times, makes it illegal for people to own:

  • Machine Guns: On gun control TV commercials, people often talk about “assault rifles” and show pictures of AK-47s and M-16s. Many of these military-style weapons are already illegal under the National Firearms Act. Instead, “assault rifles” usually refers to sophisticated hunting rifles, which are legal in Georgia and most other states.
  • Short-Barreled Shotguns: In movies, sawed-off shotguns are portrayed as mini-cannons which destroy any target. In the real world, however, sawed-off shotguns have lower muzzle velocities, so they are frequently less destructive than regular shotguns. Nevertheless, they have a substantial intimidation factor. So, in many ways, they are ideal home defense firearms.
  • Silencers: Why would anyone want to own a silencer? Many times, they reduce muzzle velocity and better balance pistols, making them easier to aim and use. Additionally, silencers allow owners to shoot on their own property without destroying their hearing or bothering the neighbors.

Note that it is illegal for people to own Title II weapons. It’s not illegal to place these items in a trust. Generally, a trust changes legal ownership, but not physical possession.

Gun Trust Transfers

Gun trusts make it much simpler to retain and transfer any Title II items in your possession. Unfortunately, gun trusts do not make it easier to acquire these firearms or accessories. Since it is illegal to buy and sell any Title II items other than antique machine guns and muzzle-loading firearms, like muskets, there are usually two ways to acquire Title II items:

  • Approved transfer from existing owners, assuming these people or trusts are in the same state (ATF Form 4 transaction), or
  • Altering or fashioning one yourself following government approval (ATF Form 1 transaction).

The prospective owner, whether s/he is an individual or a settlor, must be legally qualified to own a gun in Georgia or the relevant state. Normally, gun owners must have clean criminal records and meet other qualifications. A growing number of jurisdictions have passed “red flag” laws which allow authorities to seize weapons in some situations. Georgia is moving in the opposite direction. In January 2020, Republican state Rep. Ken Pullin introduced an “anti-red flag” law, which is currently pending in the statehouse.

Prior to July 2016, gun trust transfers were exempt from things like fingerprint cards and background checks. Generally, settlors simply had to fill out transfer forms. Then, the new rule 41(f) rule significantly broadened the definition of “responsible person” to include not only the person who physically controls the gun, but also any person or entity with an ownership interest in the firearm, including trust settlors, co-trustees, and beneficiaries.

Maintaining Your Gun Trust

The 41(f) news is not all bad. Some other changes made it easier to transfer firearms between gun trusts.

Before July 2016, all such transfers required local Chief Law Enforcement Officer (CLEO) approval. Legally, CLEOs usually had little or no basis to deny these transfers, especially in states like Georgia. However, CLEOs were not legally required to act either. So, the transfer could sit on the CLEO’s desk until doomsday.

41(f) altered the approval requirement to a simple notice requirement. So, gun trust settlors can provide the notice and then transfer items in the corpus at will.

Adding co-trustees, who are essentially co-owners, is t=rather seamless as well. To keep things as simple as possible, most of our gun trusts only have one trustee. To make things even easier, this trustee is normally also the settlor. These designations give erstwhile owners complete control over the firearms in the trust.

The addition process is rather simple. It involves adding a complete and Notarized appointment form to the trust documents. If Notarization is a problem during COVID-19, see the above discussion regarding temporary fixes.

Additions could be temporary or permanent. Frequently, trustees want to add their hunting buddies as co-trustees for the duration of a hunting trip. That’s no problem with most NFA firearm trusts.

Gun trusts are a good way to protect your constitutional gun ownership rights during illness pandemics. For a confidential gun trust consultation with an experienced firearms’ rights attorney in Marietta, contact NFA Lawyers, LLC. We routinely prepare trusts for gun owners in Cobb County and nearby jurisdictions.

Posted in Gun Trust.