NFA Gun Trust Lawyer Blog

Today I received an email from someone who was forming a trust to transfer assets from their father's estate. There were NFA items in the father's estate. The person's estate planning lawyer had advised them that it was OK to transfer NFA firearms to a trust using a general assignment of personal property. A general assignment of personal property is a standard form that transfers all personal property not requiring a deed or special documentation to a trust and is commonly used with a standard revocable living trust.

Unfortunately his lawyer must not have been familiar with the NFA because no one should ever do such a thing. This would be a violation of the National Firearms Act, and subject the individual to confiscation of all firearms, 10 years in jail for each violation, and up to a $250,000 penalty for each violation.

At this time of the year, we are often short of time and rushing to take care of things before the holidays. Before making a mistake with an NFA firearm, learn about them and the additional restrictions placed upon the use, possession, transfer, and purchase of them in your state and around the country.

If you are going to ask a lawyer about an issue involving the NFA, make sure they understand the NFA and what a Title II firearm and Class 3 SOT license are. We all know firearms can be dangerous in the hands of the uneducated, here is an example where the uninformed can cause you a problem.

To contact a NFA Firearms Attorney, just email us or call us and we will be glad to help.

While ATF has previously stated that a certification of compliance is not necessary for trusts, they have now changed their mind or at lease in some cases. For this reason we are now recommending that you send in the 5330.20 with your Form 4 or Form 1 application to purchase or make a firearm restricted under the NFA.
We will create a sample Form 5330.20 to review. Here is a link to download a Certification of Compliance with 18 U.S.C. 922(g)(5)(B) ATF 5330.20

NFA firearms and Constructive Possession. Some said it would never happen, but it seem that just recently Jesus Amador was arrested for possession / Constructive possession of an SBR.

Florida law does not allow individuals to possess the pieces to readily build an SBR, SBS, or Machine Gun unless permitted to do so under Federal law. While he may have been enticed by the police to take an action that he would not have taken, he eventually showed up to unknowingly sell the items to a police officer. Upon doing so 7 police officers at gun point slammed him to the ground and arrested him (as reported by Joshua Prince on his gun blog and by Mr Amador on Florida Gun Trader)

While some may say that this is a possession issue and not constructive possession, the fact is that constructive or actual possession are only ways to prove possession and as such there may be little significance between the two.

If you are going purchase, own, or use NFA firearms make sure you are protected by using a NFA Gun Trust that deals with these special firearms as Title II firearms and not as a traditional asset like a house, care, boat, bank account, or picture on the wall. If you do not believe there is a difference, call us and we will explain how they are different and why you need a gun trust for your firearms.

While many dealers provide Trusts and help clients fill our Trust Documents ( a violation of law in most states), this was the first time I had run across a Manufacture of Title II firearms who was providing trusts to clients. This Trust was not being completed by the Class 3 manufacture, but was a Fill in the blank form that was supplied by a silencer manufacture. It had a place to print your name, date, pick successor trustee's and sign. There was no place to witness ( a requirement in many states). While the trust appeared to be better than some forms we have seen, it will missing some of the schedules. The main schedule that was missing was the Schedule of Beneficiaries. It was not evident that one was necessary and as such the trusts we were reviewing did not contain them.

As we have discussed before, a beneficiary is an essential element to a trust and in most cases the failure to include a beneficiary who is different from the creator will cause a trust to be invalid.

This trust, as with many Quicken or Legal Zoom trusts failed to address the firearms and the many unique issues that arise when dealing with Firearms. If a valid trust would have been created, it could have transferred a bank account, chair, picture on the wall, or most any item without problem, but would have not been a good idea to use for a firearm.

In addition, because of the way the trust was structured, there was no way to include provisions to protect a spouse or other person who you would want to have access, use, or purchase their own NFA (Title II Firearm).

While the last gun dealer who was supplying invalid trusts was quick to respond, this manufacture seemed to take the attitude that it was the individuals responsibility to make sure they did the right thing, and that the form they supplied was not to be used, just a sample that they could start with.

When I suggested that the correct the form to at least allow their customers to make a valid trust, there was little interests and I would bet that nothing changes.

Remember just because the ATF approves a transfer to a trust, it does not mean your trust is valid, nor that you are legally able to possess the firearm. All it means is that if the trust is legal (which they do not guarantee) you can be in possession.

If you received your trust from a dealer, found it online, or tried to create a valid trust with legal zoom or quicken and would like it evaluated under your personal circumstances for validity and potential issues with the NFA and future transfers, Contact a NFA Trust Lawyer or Gun Trust Lawyer to review your trust.

A program has been created to offer education and training to dealers selling items restricted by the NFA.  This program will work in conjunction with attorneys licensed in their state to provide free education on the advantages and proper uses of a NFA Gun trust to purchase Title II firearms under state and federal laws to residents of their state and residents of another state.  If your dealership sells Title II firearms and is interested in having your staff trained on these important issues Contact Us to schedule training.