August 21, 2014

Nolo Says Don't Create A Gun Trust With Their Products

Today I ran across an entry on Nolo's website addressing the appropriateness of using their living trust software, commonly referred to as Quicken, or Will Maker, to make a Gun Trust. The same issues would exist for Legal Zoom or other standard trust software. Thousands of people and many gun dealers have prepared gun trusts using Nolo's software. The problem is the software was never designed for Gun Trusts and their trust may cause legal problems for their family and friends.

Nolo states:

Can I use a Nolo living trust to make a gun trust?

No. If you want to create a gun trust, get personalized legal advice from an expert on gun laws. Nolo living trusts are designed for the people who simply want to pass on their assets while avoiding probate. Gun trusts are complicated because they:

-- may need to last for more than one generation
-- may have multiple trustees, and
-- must address both state and federal weapons laws.

Nolo's living trusts do not address these issues, and so you should not use Nolo living trusts to transfer weapons. If you want to make a gun trust, get help from a lawyer who has plenty of experience with these trusts and state and federal weapons laws.

While Nolo's webpage does not address many of the issues to use a real Gun Trust, they have finally addressed the issue clearly. NO you should not use Nolo's software to create a Gun Trust. We have been telling people this for years and now Nolo has addressed the issue to help people avoid the problems that using their product could create. If you have, we can help you modify your trust into a proper Gun Trust with the help of a Gun Trust Lawyer® licensed in your state.

Updated 8/21

August 3, 2014

Gun Trust and ATF 5320.1 Form 1 Approval in 35 days

I recently published an article on Gun Trusts and an amazing 1 day approval. I felt that this was an unusual circumstance and decided to submit an electronic ATF Form 1 back on July 26th using my personal Gun Trust to test out the current time for approvals on using a Trust from a Gun Trust Lawyer®.

While I was not surprised to have not received an approval on July 27th, I have been checking the status regularly. I was surprised to receive an approval early Saturday morning August 2, 2014. This approval was not anywhere as quick as our clients 1 day approval, but only took 35 days to get approved which is amazing considering that many are reporting 9-14 months for a paper approvals. Not only was the approval quick, but the email notification came with an attachment which contained a copy of my Form 1. The process for printing the approval was more complex than it needed to be and I guess that the ATF decided they could cut down on the amount of communication and support by just sending a copy. A wise move by the ATF.

Please let us know about your approval times so we can see if others are experiencing similar results.

July 29, 2014

Federal court upholds Florida Law limiting Doctor's gun inquiries with patients

The 11th U.S. Circuit Court of Appeals in Atlanta has ruled a Florida law restricting what doctors can tell patients about gun ownership to be constitutional on Friday. The court ruled this law legitimately regulates professional conduct and does not regulate professional conduct and does not regulate the doctor's first amendment free speech rights.

This ruling by the Atlanta court overturned a previous decision that declared the law unconstitutional. There is still an injunction blocking enforcement of the 2011 law, which has become popularly known as "Docs vs. Glocks." It was challenged by organizations representing over 10,000 state health care providers, most notably the Florida chapters of the American Academy of Pediatrics and the American Academy of Family Physicians.

Continue reading "Federal court upholds Florida Law limiting Doctor's gun inquiries with patients" »

July 6, 2014

What to do if your ATF eForm is rejected.

One of the benefits in using a Gun Trust is that you are able to submit electronic applications with the new ATF website. This is possible because a Gun Trust does not require a CLEO signature nor fingerprints. Currently only Form1s can be submitted electronically, but Form 4s should be back online soon. It is important to fill out the application correctly as there is not a way to correct mistakes that are made like with the paper forms. A mistake in the past would have put your application in the back of the line, but not any more.

If you make a mistake on an ATF eform (http://www.atfonline.gov) there is a way to submit a correction without going to the end of the line.

Once you receive the notice that your eForm has been rejected, you will receive a refund of the application fee in around 10 days. You do not have to wait for the refund to be processed to resubmit a corrected application. You can pay the fee again while waiting for your refund or wait for the refund and them resubmit the application.

Once you submit your new application send an email to Ted.clutter@atf.gov and include the control number of the rejected application and the control number of the new corrected eForm and the application will be reprocessed. This should decrease the time for the approval process on the corrected eForm.

June 26, 2014

ATF eForms Approval for Gun Trust in only 1 Day

1daydates.jpgOne of our clients submitted an application to build a Form 1 on June 24, 2014 and was surprised when they checked their email the next morning and found that the ATF had approved the application to build the SBR.

When I first received the call, I thought it was a mistake, but then I walked the client through the Atfonline website and the process of printing the electronic Form 1. I have provided a copy for those who are as skeptical as I was about a 1 day approval process on a Form 1 from the ATF.

Not sure if this was a mistake or the ATF had just cleared out the backlog of Form 1's but if you considering creating a Gun Trust to build an SBR, you may want to do it sooner than later.

Here is a copy of the full Form 1 for those who would like to review it.1dayForm1.pdf

To check out the current time for approvals, I submitted a electronic Form 1 on June 26 and it was approved on August 2, 2014. While 35 days is not bad, it is not overnight.

June 24, 2014

ATF eForms adds Form 1 for Gun Trusts and time to process applications reduced.

Today I received an announcement and verified that you can now process Form 1s online again. For those with a Gun Trust, you can now process these electronically again. Still no word on when Form 4s will be available to process online.

There are currently 15 legal examiners in the background investigation phase of hiring. ATF has been authorized to use overtime funding to process NFA applications and they reduced their outstanding applications by 23%. They are currently processing around 6000 applications a week and have a backlog of 62,000. This means that we might be looking at as little as 10 weeks to process applications and even quicker for electronic applications. This is a substantial decrease from the 9 -15 months we have been seeing in the past few months.

In the last 4 weeks they received 17,800 applications and processed more than 22,400 applications.

June 24, 2014

Can a Gun Trust own or Possess an SBR in IL?

As of January 1, 2013 it became legal persons with a C&R license to purchase, transfer, make, possess, and use an SBR in IL.

The Law is poorly written and only indicates that it restricts possession. While it has been clear that a trust could not purchase an SBR in IL, there has been a question about whether an SBR purchased legally in another state by a trust could then be in the possession of a Trustee, authorized by the trust to possess the firearms in the state of IL when that person had their own C&R license.

ATF has recently rejected such a request stating that a trust may not have an SBR in IL. This does not appear to be entirely correct, but until someone is willing to challenge the decision by the ATF it will not be possible to use an ATF 5320.20 to bring an SBR to IL. Here is a copy of a rejected form.

This appears to be another example of the ATF not understanding trusts and how they work. The restriction in IL is on possession and not ownership, the trust owns the firearm, the trustee possesses the items in the Gun Trust.

Options in IL?

The Gun Control Act defines a "person" is as "Any individual, corporation, company, association, firm, partnership, society, or joint stock company." While this definition does not include a person, it does include a partnership, corporation, company, or firm. We have had clients create business entities that were owned by a trust or where a trust was one of the members, directors, officers, or shareholders. By creating a business entity that is owned by a Gun Trust, you should be able to have the business entity obtain a C&R license, then have the business entity apply for approval to purchase or make an SBR using a Form 4 or Form 1.

I am sure many people will ask, why would I incorporate a Gun Trust when I could just use the business entity itself. The answer to this deals with the many benefits that a Gun Trust provides in the management and succession planning (the beneficiary designations) that are not available with a business entity. While it would be possible to create business documents that incorporated some of the protections found in a Gun Trust, the cost to do so would be far more expensive than just using a Gun Trust.

In Summary, SBRs are legal to possess in IL as of January 1, 2013 if the person in possession has a C&R. It appears based on documents rejected by the ATF that a Trust or Gun Trust may not bring an SBR to IL when it was purchased legally in another state even when the trustee has a valid C&R license.

June 23, 2014

Supreme Court Decision on "Straw Purchases" Does Not Make Firearms Gift Purchases Illegal

Last week, the U.S. Supreme Court ruled in a case involving a Virginia man who could legally purchase a firearm and did so for an uncle from Pennsylvania. Even though the Pennsylvania man who ultimately bought the gun was not legally prohibited from owning a firearm and passed a background check, the Court, in a 5-4 decision, said the transfer violated federal "straw purchase" law. The ruling has resulted in confusion among federal firearm licensees (FFLs), particularly relating to gift purchases of firearms. The Bureau of Alcohol, Tobacco, Firearms and Explosives has been asked to provide clarification on the Supreme Court's decision for its firearms retailer members. Meanwhile, it is our understanding that the Supreme Court ruling does not make it illegal for a consumer to purchase firearms as gifts.
As noted in the instructions on the Form 4473 for Section 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party.
In the case Abramski v. United States, the Court ruled that the Virginia man, a former police officer purchasing the firearm at a discounted price, was acting as agent for the true buyer, his uncle. By declaring he was the "actual buyer" on the Form 4473, the Virginia man violated straw purchase law, because in effect he was acting as an agent for his uncle who had provided the funds for the purchase. The difference seems to come down to the fact that it was not a gift because his uncle paid the buyer for the item. Remember, if you are using a gun trust to purchase NFA firearms, not to simply add someone to make a purchase you would not be able to make to avoid the potential problems associated with a Straw Purchase.
June 10, 2014

Florida to Discuss Hunting with Suppressor Next Week

I received an email regarding a clarification of the previous version of this blog.
The email I received was to clarify what was happening and stated that there will be discussions with their Commissioners to let them know that they are taking a look at the issue of hunting GAME animals with a suppressor in Florida and plans to bring a draft rule change for the Commissions consideration at the September Commission meeting.

At that time, the proposal would be to allow the use of suppressors for hunting Game animals. The hunting of Game animals in is permitted in a majority of states and Florida, which usually leads the nation in gun legislation, is clearly in the minority.

No action or decision on the issue will take place next week and it would likily be many months before such a rule change could become effective.

Remember that no action or decision requested from Commissioners on this issue next week, it is only to let the Commission know that the FFW, Division of Hunting and Game Management is thinking of making such a proposal in September.

Currently it is not legal to hunt Game animals with suppressors in Florida, but some hunting with suppressors is permitted in Florida. If you would like to know what is permitted, please see this article on Hunting in Florida with a Suppressor.

June 10, 2014

PA Firearms Law Seminar- July 19, 2014

On July 19 2014, Chief Counsel Joshua Prince and Attorney Eric Winter of Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., in conjunction with The Sportsman's Shop, will offer a four (4) hour seminar on state and federal firearms law at the Welsh Mountain Community Center, 564 Sandmine Road, New Holland PA 17557.

The cost is $10 and you must register by July 12, 2014. You can download a copy of the registration form, here. All registrations are to be mailed or dropped off at The Sportsman's Shop, 101 West Main Street, New Holland PA 17557. If you have questions, please feel free to contact The Sportsman's Shop at 717-354-4311 .

June 5, 2014

Do you Qualify for a Free or Discounted Gun Trust in Alaska?

We work with lawyers in Alaska who accept most legal benefit plans offered to many state employees in Alaska. Many of these plans pay for trust work which would include the creation of a NFA Trust, Gun Trust, or Multi Generational Gun Trust. Some of these legal plans have a maximum amount of coverage. Each legal plan is structured differently and the use of the legal plan can significantly reduce the cost of a Gun Trust in Alaska. If you live in Alaska, work for the government, and participate in a legal benefit plan, let us know and we can put you in touch with an Alaska Gun Trust Lawyer® who may be able to provide a free or discounted Alaska Gun Trust to you or your family.

June 3, 2014

Can I Hunt in Florida with a Suppressor (Silencer)? Updated

To answer this question you must look a the Florida Statutes and Florida Administrative code. While Florida Law does not specifically grant the right to use a suppressor while hunting in certain conditions, you must remember that laws do not grant rights they restrict them so by interpreting what rights you do not have, you can determine what is left.

In Florida there are four classifications of land:

  1. Wildlife Management Areas;
  2. Wildlife and Environmental Areas;
  3. Public land that are not classified as Wildlife Management Areas or Wildlife and Environmental Areas ; and
  4. Private land.

You may not take GAME animals (mammals or birds) or Crows with a suppressor or machine gun on any type of land. Per FAC 68A-12.002

You may not take wild hogs on Wildlife Management Areas and Wildlife Environmental Areas (per FAC 68A-15.004 and 68A-17.004), but can use a suppressor to take other non game animals such as furbearers unless prohibited to be hunted the area brochure or the area brochure prohibits the use of suppressors.

Game animals include Resident Game Birds, Resident Game mammals, Migratory Game Birds and Protected Mammals.

See http://myfwc.com/hunting/regulations/taking-game/

Neither Florida Law nor Florida Administrative Code restricts the use of suppressors (silencers), on private land, to take varmint, furbearers, non native game animals. In addition, suppressors can be used to take wild hogs on public land that is not classified as a Wildlife Management Area or Wildlife and Environmental Area.

Here are some definitions that will help make sense of these two statements.

  • Game birds --Wild turkey, quail, rails, snipe, woodcock, ducks, geese, brant, dove, coot, common moorhen, and non-native species generally considered game such as pheasant, chukar partridge, and coturnix quail.

  • Resident game mammals --deer, gray squirrels and rabbits

  • Furbearers --bobcats, otters, raccoons, opossums, coyotes, beavers, skunks and nutrias

  • Migratory game birds --ducks, geese, common moorhens, coots, snipe, rails, woodcocks, mourning doves and white-winged doves

  • Protected mammals --Florida black bears, fox squirrels and Florida panthers cannot be taken or pursued.

Suppressors can be used on private land in Florida to take some animals as indicated above. Suppressors (silencers) should not be used to take any Game animal (mammal or bird) crow, or wild pig in a Wildlife Management Area or Wildlife and Environmental Area and non game animals (wild pigs or furbearers), may be taken on other public land that is not classified as a Wildlife Management Area or Wildlife and Environmental Area.

May 30, 2014

Louisiana Hunting with Suppressors legal effective August 1, 2014

Yesterday, the Governor of Louisiana signed House Bill 186 into law. This law will legalize the use of suppressors while hunting for all game and non-game animals in the state of Louisiana. The law is effective August 1, 2014. The current trend in the United States is to legalize the use of suppressors while hunting. Over 30 states now permit the use of a suppressors while hunting either game or non-game animals. This year, three states, including Georgia and Alabama have legalized hunting with suppressors and give hunters the ability to protect their hearing.

The ASA reports that a similar measure is in progress in Ohio. Louisiana statute even allows for the use of suppressors while hunting non-game animals.

Under the National Firearms Act, an individual, trust, or business entity may purchase a suppressor. A Gun Trust is designed to allow for multiple people to be in possession of the suppressor which is not allowed with an individual purchase. In addition, a purchase by a Gun Trust can speed up the process by removing the necessity to obtain a CLEO sign-off and when the ATF brings back electronic filing, a Trust application for a Form 4 purchase from an FFL can be filed electronically which can reduce the time for approval.

A Gun Trust can be designed and used to purchase and own all types of firearms, even those not restricted by the NFA. To find out more about how a Gun Trust can help you, contact a Gun Trust Lawyer®

May 27, 2014

ATF Updates 41P Final Action Date: No Changes for Gun Trusts Before 2015

Late in 2013, the ATF published a notice that they intended to seek to revise the regulations regarding the documentation that is required for a Gun Trust and for a business. After the ATF received more than 9500 comments on the proposed changes, the ATF had originally announced that a decision was set to be published in June of this year. As the June date has approached, we have reported that it was unlikely that the ATF would actually be able to review and respond to the comments by the June date and that the ATF was not likely to be able to respond until 2015.

In the latest publication of the Semi-Annual Regulatory Agenda, ATF updated the date of the projected date to show that ATF does not expect to publish a final rule until 2015.

DOJ/ATF RIN: 1140-AA43 Publication ID: Spring 2014

Title: Machine Guns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Corporation, Trust, or Other Legal Entity With Respect to Making or Transferring a Firearm

Abstract: The Department of Justice is planning to finalize a proposed rule to amend the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regarding the making or transferring of a firearm under the National Firearms Act. As proposed, the rule would; (1) add a definition for the term "responsible person"; (2) require each responsible person of a corporation, trust or legal entity to complete a specified form, and to submit photographs and fingerprints; and (3) modify the requirements regarding the certificate of the chief law enforcement officer (CLEO).

Final Action 01/00/2015

This is great news for those who are wanting to get a Gun Trust from a Gun Trust Lawyer® and have the opportunity to file electronically. As you may know, the ATF has removed the ability to file a Form 1 and Form 4 electronically, but expects to have it back up in the short term as they make changes to the system to handle the huge number of electronic submissions.

May 20, 2014

Engraving Requirements including City and State Clarification

Recently, I had an electronic version of a Form 1 approved by the ATF for my Gun Trust and wanted to clarify what is required for engraving.

ATF 5300.4

In 27 CFR 479.102 (page 92) describes what is necessary to engrave on a SBR or SBS when one is manufacturing. This is not necessary if you purchase one that is already manufactured as it will have been done for you.

1) On the Frame or Receiver the Serial number;
2) on the frame, receiver, or barrel the following additional information;
A)The model;
B)The caliber or gage;
C)Your name or name of the Trust in the case of a Trust (no abbreviations are permitted for the Trust name);
D)The city and state (you can abbreviate the state with the official 2 digit state code)
The above mentioned information must be engraved, casted, stamped (impressing) or otherwise conspicuously placed or caused to be engraved, cast, stamped (impressed) or placed to a minimum depth of .003 inch and in a print size of the Serial number shall be no smaller than 1/16 inch.

As an interesting side note, my gun was manufactured in Jacksonville, FL so the city and state were already engraved. When I asked ATF, if I needed to engrave Jacksonville, FL, they said yes and pointed me to an ATF Ruling on adopting identification of FIrearms from 2013.