October 2008 Archives: NFA Gun Trust Lawyer Blog  

October 2008 Archives

October 31, 2008

Quicken Trusts: Why they are a bad idea for estate planning and firearms

Many of my clients are converting their quicken trusts to NFA trusts to deal with the problems in owning, transferring, and possessing Title II firearms in a trust that was created from a form, dealer, quicken, legal zoom or other generic form.

Last week I got a review copy of the new 2009 version of Quicken and was hoping that they had dealt with many of the problems I have addressed in the past.  Unfortunately, they minor changes seem to have done little to address the defects, inaccuracies, inconsistencies, and potential creation of invalid trusts by Quicken.

The Good, Bad, and Ugly of Quicken 2009
an article I wrote on the Florida Estate Planning Lawyer's Blog deals with the problems of Quicken from a Florida Estate Planning Lawyer's prospective.  This is only a subset of the problems that are evident from the perspective of someone who wants to own or purchase Title II weapons.

We not have lawyers we work with in over 35 states to prepare and provide clients with locally reviewed and created NFA firearms trusts.  If you are looking for a professionally prepared and reasonably priced NFA trust, prepared an attorney licensed in your state, that complies with the NFA, your states gun and trust laws along with detailed instructions on how to the Firearms Trust, make NFA purchases with out creating technical violations, and how to avoid the common procedural violations, Contact a NFA trust attorney.
October 29, 2008

NFA Trust

Many people ask what is a NFA Trust and how is it different from a living trust or revocable living trust.  A NFA trust is a trust document that has been customized to deal with the specific legal issues surrounding the transfer, possession, and use of firearms that are restricted by the National Firearms Act.  These items include silencers, short-barreled rifles, short-barreled shotguns, machine guns, AOW's and destructive devices.  Many people do not know that in most states it is legal to own some or all class III firearms.

There are many types of revocable trusts.  We work with lawyers in over 30 states to provide the best protection for your family and friends though a NFA Firearms Trust.  Each trust is customized to deal with the unique issues of ownership and possession that are required for ownership in your state.  An interview process is necessary to determine who must be included in the trust, or how to make changes not to include those people.  In addition, it is important to determine the best way to allow others access to the weapons if you choose. 

When creating a trust for NFA items, it is important to make sure the trust is valid, you understand how to use the trust and what the trust does, how to make a purchase that does not create a technical violation of the NFA as well as how to avoid the common violations including constructive possession and transfer.  Many people believe that it is OK to let someone else use your Class 3 weapon if you are present.  A careful reading of the NFA show that the word transfer includes this type of action and thus is prohibited under the NFA.

In addition, when you fill out your Form 4 it is important to fill out the Form 4 correctly.  To download a sample Form 4 with instructions on what information needs to be filled out see our ATF Form 4 instruction page.

If you would like more information on how an NFA trust can help you, or to have your previously created Trust reviewed for compliance call us or fill out our contact form so that we can get you in touch with a NFA Gun Trust Lawyer® in your state.
October 28, 2008

NFA, 26 U.S.C. Chapter 53

We have created a quick link to the NFA: www.guntrustlawyer.com/nfa.html

Click to download a copy of the National Firearms Act  NFA.pdf

October 28, 2008

Missouri (MO) What NFA Class 3 Firearms can I own? Updated

NFA Class 3 firearms There are several type of Class 3 items that are restricted by the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of class 3 firearms in addition to the compliance that is required with the National Firearms Act.

In Missouri you can own the following items that are regulated by the the National Firearms Act:

Machine Guns **
Silencers*  after 8/28/08 which are a curio, ornament, or as a keepsake if you are a collector.
Short Barreled Shotguns (SBS) **
Short Barreled Rifles (SBR) **
Any Other Weapon (AOW)
In Missouri you cannot own the following NFA restricted items.
Silencers *- prior to 8/28/08 which are not classified as curio, ornament, or as keepsake, or non-functioning devices
Destructive Devices (DD)

**  Must be a curio, ornament, or keepsake, and such person is an importer, manufacturer, dealer, or collector licensed by the Secretary of the Treasury pursuant to the Gun Control Act of 1968, U.S.C., Title 18
* NOTE  HB 2034 SECTION 571.020

As a practice matter the item does not have to be a C&R if you are a collector which is usually evidenced by having a C&R license.  That is if you have a C&R license you can have a non C&R Silencer, machine gun, SBR, or SBS as a keepsake.

This act allows licensed importers, manufacturers, dealers, or collectors to possess, manufacture, transport, repair, or sell a firearm silencer as a curio, ornament, or keepsake.

Currently, it is not a crime for a person to possess, manufacture, transport, repair, or sell a firearm silencer if such action was incident to dealing with the silencer as a curio, ornament, or keepsake, or it is used in a lawful dramatic performance, but only if the silencer is in a non functioning condition. Under this act, the silencer would not have to be in such non functioning condition.

This section is identical to certain provisions to SCS/SB 1172 (2008).

Follow this link to find out more about Missouri and NFA restrictions on Class 3 Firearms
October 28, 2008

Child Killed by UZI: Did gun show Violate the National Firearms Act

Uzi.jpgThis week an 8 year old child shot and killed himself at a gun show in Massachusetts.  For a good analysis of the potential negligence claims involving a child using a Machine Gun look at David Wolf's Florida Child Injury Lawyer Blog. This unfortunate incident goes to show the dangers of letting children possess or use a Machine Gun.  The NFA prohibits the transfer of weapons to children without an approval, except transfer of an item to a gun store employee or other licensed reseller.  Section 5845 (j) of the NFA defines transfer: 

The term. 'transfer' and the various derivatives of such word, shall include selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of.
It appears that even though the gun show organizer may have been able to allow the child to shoot the Uzi under state law with the permission of the parent, the gun dealer was in violation of the NFA for transferring or loaning the weapon to the child.

In addition it is illegal under Chapter 5861 for any person to receive or possess a firearm transferred to him.

Not only was it a violation of the NFA to allow the child to be in possession, but the child was also in violation of the NFA for being in possession of the UZI. 

This unfortunate incident only goes to show the importance of safeguarding NFA firearms from the use or access of others.  If you own a machine gun as an individual and die, your child could inherit the machine gun.  As we have too often seen, some children cannot comprehend the dangers of guns.  A properly drafted NFA Firearms trust can protect young children from gaining access to restricted firearms or any firearms until the child reaches a specified age and others determine that they are legally and mentally stable and responsible enough to manage a firearm.
October 16, 2008

What happens if I travel with my Class 3 Firearms regularly?

An individual may submit ATF Form 5320.20, to temporarily or permanently transport his firearm in interstate commerce.  The ATF will approve this form for up to one year as long as the individual is going back and forth to the same location.  In that way the individual does not have to ask for permission every time they wish to move the firearm in interstate commerce.  There is a place on the form to indicate whether the move is permanent or temporary; the 5320.20 may not be used to transfer title and the ATF will check to see if the State indicated allows for the possession of the type of firearm to be transported.

If you have a question about class 3 firearms ownership, possession, or transfer please Contact a Gun Trust Lawyer®.
October 9, 2008

What happens if I move before taking possession of Class 3 firearms?

In the rare event that you change states between the time you send in your form 4 transfer tax and the time it is approved you must void the original transfer and make a new application from the state you moved to.  If it is purchase by an individual, you must also obtain a new law enforcement signature prior to resubmitting the forms.  The ATF is able to use the transfer funds from the previous transfer and the fingerprint cards as long as the dealer that voids the transfer contacts the ATF prior to sending in the void and requests that they use the same fee and not refund the money.

This may be a good opportunity to evaluate the additional benefits that a NFA firearms Trust offer
over individual ownership.  For more information Contact a NFA Trust Lawyer.
October 7, 2008

Palm Pistol - An Ergonomic Firearm with a Combination Lock

palmpistol.jpgWorking with many elderly clients in my Florida Elder Law and Florida Estate Planning Law firm, I like to report on items that tend to make life easier and have yet to see another product like this.  As people age, they often develop medical issues that would prevent them form being able to use a normal firearm to protect themselves, their family, of their possessions.  The Palm Pistol seems to have solved many of those problems by creating a single shot pistol with a combination lock and a thumb trigger.

The thumb is often much stronger than ones forefinger and in the case of an individual that has lost a finger, the Palm Pistol offers the ability to use ones thumb instead of a finger.

The initial price of the pistol is $275 for those who pre-order and will be $300 after shipping.  For those who need protection this seems like a reasonably priced solution.   They have posted a letter form the ATF that classifies this as a standard pistol.

There have been some concerns that the gun would be classified as an AOW.  If that should happen, a NFA Gun Trust would allow individuals to purchase the item in most states for a $5 transfer fee that is associated with the purchase of an AOW. 

NOTE:  AOW's are not legal in every state, so you would have to check your state's laws to see if AOW's are permitted.  But for now, it appears that the ATF will consider this a normal pistol.

For more information on this please contact
Constitution Arms

12 Hoffman Street, Maplewood, NJ 07040-1114

973-378-8011 mcarmel@constitutionarms.com www.constitutionarms.com

October 7, 2008

New Jersey (NJ): What NFA Firearms can I own? Updated

New Jersey NFA Class 3 firearms
There are several type of Class 3 items that are restricted by the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of class 3 firearms in addition to the compliance that is required with the national Firearms Act.

In New Jersey you can own the following items that are regulated the the National Firearms Act

Machine Guns *
Any Other Weapon (AOW)
In New Jersey you cannot own the following NFA restricted items.
Short Barreled Shotguns (SBS)
Short Barreled Rifles (SBR)
Destructive Devices (DD)

Follow this link to find out more about New Jersey and NFA restrictions on Class 3 Firearms

* Machine guns - Onwership for persons is regulated under N.J.S. 2C:58-5
NOTE: In New Jersey, AOW's are limited

October 6, 2008

Estate Transfers of Class 3 Weapons

If you want to purchase a Class 3 firearm from an estate a class 3 dealer must be used as a transfer agent if the items will be crossing state lines.  If the executor, item, and the purchaser are in the same state there is no reason to use a class 3 transfer agent unless your state requires this.

This is the same whether the class 3 firearm is going to an heir of the estate, a business, or an individual.

If you have a question about the transfer of weapons under the National Firearms Act  you should contact a Gun Trust Lawyer®.
October 2, 2008

Prohibited Persons and NFA Trusts

Just like with transfers to individuals, a trustee of a NFA firearms Trust can not be a prohibited person.  It is important that if all trustees certify that they are not prohibited if a trust contains class 3 firearms.  If a trustee becomes a prohibited person they must resign and the ATF must be notified of the change.  If there is no trustee, the settlor must appoint a new qualified trustee and also notify the ATF of the change in the trust.  The following persons are prohibited from receiving a firearm or being a trustee in a trust that contains items restricted by the National Firearms Act:
  1. anyone who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
  2. any fugitive from justice;
  3. any unlawful user or who is addicted to any controlled substance;
  4. anyone who has been adjudicated as a mental defective or who has been committed to a mental institution;
  5. any alien who is illegally or unlawfully in the US or except as provided in 18 U.S.C 922(y)(2), has been admitted to the US under a non-immigrant visa;
  6. anyone who has been dishonorably discharged from the Armed Forces;
  7. anyone who was a US citizen and has renounced his or her citizenship;
  8. anyone who is subject to a court order that:
    1. was issued after a hearing of which such person received actual notice and at which such person had an opportunity to participate;
    2. restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
    3. (I) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (II) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury, or
  9. anyone who has been convicted in any court of a crime of domestic violence; to ship or transport in interstate or foreign commerce,  or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
If you have questions of whether you are a prohibited person or trustee in terms of NFA items, you should Contact a NFA Trust Attorney.
October 1, 2008

How to Fill out an ATF FORM 4 For NFA Class 3 Purchases

Many People have asked, How to fill out a form 4 when making class 3 purchases.  Because of this, we have added a page on this topic.  Please see

How to Fill out an ATF FORM 4 For NFA Class 3 Purchases

If you need help forming a trust, please Contact to find a Gun Trust Lawyer® in Your State.