Gunpocalypse Inches Closer. What Does That Mean for Firearm Trusts?

A few years ago, the Second Amendment seemed off-limits. Now, a repeal or modification seems increasingly likely. Alternatively, gun laws in the United States soon could mirror the laws north of the border. It is technically legal to own a gun in Canada. But, there are so many restrictions that almost no one qualifies under the law.

In response to some recent mass shootings, the City of San Francisco recently labeled the National Rifle Association a terrorist organization. Supervisor Catherine Stefani claimed the NRA “fans the flames of gun violence” because it exists to spread pro-gun propaganda and put weapons in the hands of those who would harm and terrorize us.” Stefani also cited federal law, which defines terrorist activity as using a firearm to endanger public safety.

In response, the NRA called the City’s act a “sound-bite remedy” and a “reckless assault on a law-abiding organization, its members, and all the freedoms they stand for.” The organization is contemplating a lawsuit to overturn the Board of Supervisor’s decision.

Nation Red Flag

Also in response to recent mass shooting, President Donald Trump proposed a national red flag law. A number of states already have these laws, which allow authorities to confiscate firearms if the owners display certain behavioral tendencies. Shortly after the president’s endorsement, Sen. Lindsay Graham (R-SC) and Sen. Richard Blumenthal (D-CT) said they supported using federal money to enforce state red flag laws and “encourage” more states to pass such legislation.

Thus far, only seventeen states have red flag laws. Opponents argue that red flag laws allow authorities to seize property while circumventing due process requirements.

Things are happening closer to home as well, specifically in Florida.

For the first time, voters in a red state may have the chance to ban assault-style weapons. A lobbying group called Ban Assault Weapons Now is trying to meet a February 2020 petition deadline to put such a measure on the November 2020 ballot. Republican donor and gun control advocate Al Hoffman said “a ban on assault weapons in Florida will set an example that it is absolutely possible for other states to follow suit, no matter their political affiliation.”

So far, the effort has netted roughly 100,000 of the 700,000 signatures required. Assuming the group meets this requirement, the Florida Supreme Court must approve the language. IN a court filing, Republican Attorney General Ashley Moody said the proposed constitutional amendment’s language was “misleading” and also overly broad.

Gun Trusts and Gun Rights

The Second Amendment gives all U.S. residents the right to keep and bear arms. The right to “bear arms,” which basically means carry guns, is largely gone. Georgia, like all other states, has a concealed carry law. In 2013, Illinois became the last state to pass such a law. However, these laws are extremely limited, even in traditionally gun-friendly states like Georgia. Proposed red flag laws may restrict this right even more, as outlined above.

Additionally, for perhaps the first time, many are openly questioning the right to bear (own) firearms. There is talk of mandatory buybacks and other such measures.

In the growing hostile client, ATF firearm trusts help preserve your rights. Trusts are inherently private and difficult to trace. So, your firearm collection remains private as well.

Additionally, individuals who place their guns in trust no longer legally own these firearms. The trust, which is a separate legal entity, owns the firearms. That ownership change keeps your collection even more private. Additionally, if anyone asks if you “own” a firearm, the answer may be “no.”

Consult with an attorney before you make any such statements, especially to authorities, because that may not be true in all cases. Furthermore, if you are asked if you “possess” any firearms or if there are any guns at your house, the answer to these questions may be “yes.” Again, it depends on what your Marietta gun trust attorney has to say.

Finally, as outlined below, firearms are easier to transfer in gun trusts. Adding, subtracting, or otherwise redesignating trustees and beneficiaries is usually just a matter of filing paperwork and perhaps paying a small transfer fee.

Intangible Gun Trust Benefits

Many people use government-approved firearms trusts for estate planning purposes as well. Your legacy to your children is more than just stuff. The things you pass down also represent who you are and the values you cherish.

Firearm ownership is a good example. In Georgia and other “shall issue” jurisdictions, anyone who meets the government’s minimum qualifications can carry a weapon. In “may issue” jurisdictions, such as the District of Columbia, applicants may have to convince a board that they are entitled to own firearms.

Not so with firearm trusts. Many owners set rules regarding firearm safety and firearm appreciation. Generational beneficiaries must prove that they understand why it’s necessary to own firearms. They must also prove they know how to use and care for these items.

This element of a gun trust may be more important that the ownership element. A brief example from American history may shed some additional light on this issue.

In 1775, prior to the official start of the Revolutionary War, local militia played a vital role. These men understood concepts like military discipline and took their roles seriously. The result was a string of victories, or at least moral victories.

A year later, the situation was completely different. General George Washington complained in writing about the ragtag militia fighters that served as his “army” after devastating setbacks in Manhattan and Long Island. “I am wearied to death all day with a variety of perplexing circumstances, disturbed at the conduct of the militia, whose behavior and want of discipline has done great injury to the other troops, who never had officers, except in a few instances, worth the bread they eat,” he wrote. “I never was in such an unhappy, divided state since I was born,” he added.

If militia could deteriorate so fast with the birth of a nation at stake, imagine what could happen to your gun values after a few years.

A firearm trust preserves your values for future generations. Furthermore, if you are no longer around, the trustee or substitute trustee continues to enforce your wishes. So, you always remain in control.

Initial Gun Trust Setup

NFA firearms trusts usually include Title II items, such as short-barreled rifles and silencers. An experienced attorney can set up a gun trust, or other testamentary trust, in as little as one office visit.

Significantly, gun trusts usually do not require CLEO (Chief Law Enforcement Officer) approval. That’s a big advantage when it comes to gun possession. In Georgia and many other “shall issue” permit states, CLEOs have little discretion in this area and they must approve all applications which meet minimum qualifications. However, the form may sit on the CLEO’s desk for quite a while. Gun trusts eliminate this issue.

It is also important to understand what a gun trust is not. NFA trusts do not bypass state or federal firearm regulations. Trusts must still comply with the Brady Act and all other relevant legislation. And, trust participants must follow all state firearms possession regulations.

Interstate transfers are closely regulated as well. So, if you want to take a firearm to an event in another state, you must provide advanced notice.

For the most part, gun trusts are rather straightforward, from a legal perspective. For this reason, many owners are tempted to use forms they find on the internet and make their own trusts. But there is a big difference between a gun trust and a financial trust.

Furthermore, do-it-yourself trusts may save some time and money on the front end, but they are costly later. If there are any problems with the government, people who do their own trusts are on their own. People who use attorneys have the support they need.

Making a Gun Trust: What to Expect

A good NFA trust attorney should be well-versed in both firearm possession laws and Georgia testamentary trust laws. If your attorney has these qualifications, the gun trust process is much easier.

It is pretty much impossible to draft trust paperwork over the phone or via email. After your first meeting or second meeting, you should have most of the needed documents. That includes a trust, a declaration, and a schedule (description of items in the trust). Generally, these documents should be filed with the county clerk.

Next, it’s off to the bank to set up a trust account. Legally, trusts are invalid without a corpus (item or items in the trust). So, expect to make a small deposit, perhaps $10. Going forward, it’s important to keep your personal affairs completely separate from the trust. Otherwise, the gun trust may no longer be private.

Finally, the Bureau of Alcohol, Tobacco and Firearms will review the trust documents. If a competent attorney prepared your trust paperwork, this final step is a formality. If you have a do-it-yourself trust, you may be waiting on pins and needles. The BATF may reject your trust for almost any reason, and agents do not always fully explain the reason for denial.

If your paperwork is rejected, you must so more than start the entire process over. An attorney must also prepare the way for a subsequent application. If that does not happen, future gun trusts will probably be rejected as well.

Changing a Gun Trust

Especially regarding inter vivos (living) trusts, conditions change frequently. Firearms come and go, as do members, beneficiaries, and trustees. When these changes occur, the trust documents must be amended.

Even if the change is rather simple, handwritten or other informal alterations are legally invalid. Any changes to the trust must have the same formalities as the original trust. In fact, when people wish to make significant changes to their wills, most lawyers recommend they destroy their old wills and make new ones. That’s usually not necessary in the gun trust context. Instead, an amendment and restatement usually suffices.

Amendments usually address technical issues, such as name changes following marriage or divorce. Restatements address more substantive changes, like the ones outlined below.

Attorneys also use amendments and restatements to correct problems in other gun trusts. These problems could include:

  • Inventory Issues: Some do-it-yourself gun trusts only list the aforementioned bank deposit as the trust’s corpus, or they only include some items. Other inventories have the opposite problem. They go into too much detail.
  • Misnaming Parties: The parties in a trust are the settlor (person who sets up the trust), trustee (person who manages the trust), and beneficiary. Many gun trust name gun owners as settlors, but not as trustees. Therefore, you have no legal right to possess the firearms in the trust.
  • Trustee Issues: Under the new ATF Rule 41F, all trustees must be fingerprinted and go through the same process as individual owners. On a related note, all beneficiaries should be trustees first. 41F requires all “responsible persons” to submit photographs and fingerprints. That requirement could mean children and other people who cannot legally own firearms must be fingerprinted.

Amendments do not change the terms of the trust. All the provisions you and your attorney worked hard to incorporate remain the same. Amendments only apply to specific issues.

To get your gun trust started, contact the experienced gun rights attorneys in Marietta at The Phillips Law Firm, L.L.C. Convenient payment plans are available.

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