I am planning to add a section about firearms to my website. I was wondering if have some of you folks would take a look over it and give me some feedback, since most of you know a thing or two (or three) about guns. You don't have to be a lawyer to do so (or even a US citizen), and you don't have to be knowledgeable about the subjects I talk about. I'd like to know if:
1. The material is informative and clears up confusion;
2. It is free from typos and bad grammar; and
3. It is politically neutral.
4. It is, to your knowledge, accurate. I may be lawyer but I'm always learning new things. I fully recognize that there are people out there who know more than me about firearms, and I welcome any feedback that could help me relay accurate, useful information to clients.
I do not need to know if:
1. The formatting is a bit off (putting anything on a forum does that and it will be changed for the website anyway);
2. You disagree with my delineation of the terms Gun Trusts and NFA Firearm Trusts.
If there are any other lawyers on Targettalk, I have a section I want to add for lawyers, but the issues there are more ethical in nature and less general. If you're willing to help, please PM me.
Thanks!
Website Firearms Page
While we consider the proper disposition of all assets necessary to a good estate plan, Benjamin Dean is the author of an upcoming article in the Winter Edition of the ABA Real Property Trust and Estates (RPTE) Law Journal called “Basics of Firearm Transfers for Estate and Probate Lawyers,” to be published in Vol. 51, No. 3, Winter 2017. He has also spoken nationally in teleseminar on the subject. Gun Trusts are among the most misunderstood parts of estate planning, and he hopes that this page will help clear up some confusion. On this page, Benjamin answers some questions that both clients and lawyers might have about this area. If you have a question you would like to ask or add to this, please email Benjamin at benjamin@deanandschmidt.com!
For Clients:
Do I Need to Plan for Firearm Transfers in Estate Planning?
Most people do not. Obviously, if you do not own any firearms, there is no point in considering it. Second, even if you do, as long as the firearms are being given to someone who is in the same state as you, there is little issue.
However, there are several situations where you should plan for firearm transfers:
1. You have a firearm you want to give to someone who is in a different state, especially if that state has strong restrictions on firearm controls.
2. You own any National Firearms Act Weapon, or you have an NFA firearm in a “Gun Trust”.
3. You need to ensure that the firearms are safely handled and transported to their ultimate beneficiaries.
4. You have a firearm you want to give to someone who is in a different country.
I own a gun. Will this make my estate plan more expensive?
Not generally. Most firearms-related issues are simple and can be considered as a matter of course in our ordinary estate planning practice. NFA, international, and certain types of state transfers are more complex matters that require more us to do research and planning.
I am not a resident of South Carolina. Can I employ you as a lawyer to plan for my firearm transfers?
Ethical rules forbid us from practicing law outside of South Carolina. You must either visit us in person or provide sufficient proof that you are a South Carolina resident before retaining our services.
You put “Gun Trust” in quotes up there. Why?
Because there is a lot of misinformation out there about them. The name “Gun Trust” is misleading since it implies that all guns should be placed into it. This is flat-out not true in many states. A more accurate name for the trust document is “NFA Firearm Trust,” and it is a legal entity set up to allow multiple people to enjoy an NFA firearm without constant expense, burdens and invasions of privacy by the ATF.
Please note that in some jurisdictions, a specialized trust that holds firearms might make sense for state law purposes. I am not a lawyer barred in those jurisdictions and cannot provide legal advice concerning foreign state law.
I have an NFA Firearm Trust. Doesn’t that mean I have planned for my firearms?
I can’t answer that, although I wish I could. The short answer is “are you sure you know exactly how the law works and that your NFA Firearm Trust will prevent you from performing any illegal acts?”
For an NFA Firearm Trust Grantor or Trustee, NFA compliance is an absolutely essential to a good estate plan. The Trust itself does not take care of the knowledge component. Most ordinary trusts allow the creators (called Grantors) to do things that could result in an illegal transfer under the NFA. The penalties for violating the NFA are harsh: up to $10,000 in fines and up to 10 years in jail.
This means that failure to comply with the ATF regulations is a severe risk. If you are not completely sure about your NFA Firearm Trust, you should schedule a free consultation with me. I would be happy to look over your documents and ensure that everything is in place.
Can I put other guns in my NFA Firearm Trust?
You can (unless the trust says otherwise), but I do not recommend it. In South Carolina, there is no advantage to it, and the Trustee and Grantors of a properly-drafted NFA Firearm Trust are subject to a series of restrictions designed to prevent them from violating NFA law.
Can I revoke my NFA Firearm Trust? It says it is in a revocable trust.
Please see me before revoking the trust. While the Trust may say it is revocable, the ATF knows that the Trust owns the firearm. If you suddenly end up owning the firearm, there is a legal question as to whether a transfer has occurred.
My friend and I have an NFA Firearm Trust we made together and we are considering dissolving it for personal reasons. Do I need your help?
Please see me before dissolving the trust. As with above, there are legal questions about how the transfer will work before the ATF. Please note that you and your friend have opposing interests in the revocation, so unless I have a waiver form from both of you, I can only represent the first person to contact me.
Are you up to date with the current changes to the NFA and gun trusts?
I am familiar with ATF 41F and the rules newly promulgated in 26 C.F.R. §479.1 et seq. As I am a gun owner and competitor, I am familiar with both the legal and practical parts of gun ownership and stay up to date with changes in the firearms industry and in estate planning.
What’s your angle on all of this? Why Firearms?
Here's my personal angle. I did not grow up around firearms, and only really got to know them when I moved out here to South Carolina. Because I was not raised in the environment, I had to search out a lot of the information needed by myself. I quickly fell in love with the area, and enjoy shooting both recreationally and competitively. I am a member of USA Shooting, and intend to compete in multiple competitions this upcoming year. My goal is to join the USA Shooting National Team.
As a lawyer, I realized that there was a huge disconnect between what attorneys know and what gun owners know. My primary goal is to inform both attorneys and clients of the law surrounding this area and help ensure that transactions are carried out lawfully.
I don’t support firearms at all, in fact I think that we need stronger restrictions. Why should I get estate planning from you?
Because my primary goal is to effectuate my clients last wishes through proper estate planning and probate practice. No matter what you believe, everyone deserves good estate planning. My firearms knowledge is just one aspect of that service, and my personal feelings are not a consideration in a client’s estate plan.
I recognize that this is a “hot-button” area of the law that incites strong emotions. Many states have enacted statutes controlling firearms as a result of tragedies. My goal in providing firearm-related legal services is not to challenge laws, but to ensure that my clients receive the services they need to smooth transitions from one generation to the next. While I personally support responsible firearm ownership and believe that it is in the best interest of everyone to have a clear set of laws that everyone understands, that support is secondary to my role in any attorney-client relationship we might form.
Do you do speaking engagements on this area of law in South Carolina? Can we book you to speak about estate planning and firearms?
Absolutely. I typically do not charge for this type of speaking engagement except to cover expenses. I believe that it is a public service to educate groups on estate planning and firearms, and that the knowledge should be freely accessible to those who want it.