NFA Gun Trust Lawyer Blog

We are often approached by individuals who have formed trusts and want to know if they can upgrade the language in their trust to take advantage of the provisions in our NFA Firearms trust.

This can be done by amending and restating your existing trust and is a simple process. The process involves a review or your trust as well as an interview to determine what you are trying to accomplish, your family situation, and ways to reduce future taxes as well as legislative changes involved with the transfer of NFA firearms in the future. Once a plan is made, we simply amend your trust to our new trust and the changes become effective upon execution of the new documents.

If you have pending transfers it is possible to contact ATF and let them replace the document in your application and when it is approved it will be under the new trust document. The lawyers we work with do not charge any extra for this process if the review is done at the time when the new trust is ordered. If you just would like your trust reviewed, the typical cost is $150. If you later decide to upgrade your trust, $100 of the fee is waived, but if you determine you want to upgrade your trust from the beginning there is no additional fee over the cost of the trust.

Several of our attorneys are under the ARAG plan and can offer NFA Firearms Trusts for individuals who are under the plan. If you have ARAG you may qualify for a no-charge NFA Firearms Trust or one at a significant discount. Your individual plan will describe your results.

The NFA Firearms Trust that we and our lawyers use is a copyrighted document. We have had several individuals ask us what this means in regards to its use.

When you purchase a NFA Gun Trust, you are permitted to make a copy of the trust for your own use and for submitting to the ATF. You are not permitted to copy the text and post it online, provide it to another individual for their use, or provide it to an attorney to copy to create trusts using our language. In addition, you are not permitted to remove our copyright notices from the documents and doing any of the above can result in civil damages for lost profits or statutory damages of up to $30,000 for each act of infringement. If a court determines that a violation is willful or intentional the liability increases up to $150,000 plus attorney's fees under Title 17, United States Code Sections 504 and 505.The copyright covers the text of the trust as well as the instructions / memorandum.

Recently it has come to our attention that a lawyer is using our copyrighted text and incorporating our wording and protections into their own trusts. We take this very seriously and expect others to do the same.

We have invested hundreds of hours in creating our NFA Firearms Trust and supporting materials and offer it to the public at a fair price. In order to continue to offer our work at a fair and reasonable cost, expect that our clients and competitors to respect our rights and help us maintain our copyrights.

If you have a copy of our trust or believe you have received an improper copy of our trust and would like a proper license to use our language please contact us so that we can properly license you and provide the support and upgrade options that goes along with our documents.

A trust may not obtain a C&R license. In some state like Missouri, to purchase Title II firearms you must have a FFL. Missouri considers a C&R a FFL for this purpose. A trust may not obtain a C&R or other FFL.

If you want to use a NFA Trust in Missouri, it must be done in conjunction with a Corporation or LLC. The Trust can be the member and the Manager of the LLC or Corporation which adds the ability to deal with incapacity, death, and easily changing the authorized users.

The ATF has recently made a decision to review Trusts for legal sufficiency. While this may slow things down for those using generic trust for NFA purchases (Quicken, Legal Zoom, Gun Store Trusts) I think its a good idea and will protect many from unknowingly violating the NFA.

We have seen several issues where the ATF is declaring trusts to be invalid that are in fact valid under various state laws. They claim they are not practicing law in those states and will not give legal advise. They suggest that you have the trust reviewed by a lawyer to tell you why it is invalid or make changes to the trust to make it valid.

If your trust was rejected by ATF we can help by reviewing and or amending the trust with our network of 75 attorneys in more than 40 states.

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.

When submitting a Form 1 to the ATF for a SBR or SBS with multiple barrel lengths, the ATF will no longer accept a Form 1 with multiple barrel lengths. It is recommended that you submit the ATF Form 1 (5320.1) with a single barrel length for approval. Follow this link for more information on how to fill out an ATF form1 (5320.1).

If you have regular firearms and your state allows you to transfer them to an individual without going through a dealer, you can fill out the assignment form that we supply with the NFA firearms trust. On the other hand if your state requires other steps to give or sell a firearm to an individual you will still have to comply with your state's laws when transferring the regular firearms into the NFA Trust.

With Title II firearms you have to deal with the same issues as above + the requiremets under the NFA. If you are purchasing from :

1) an individual within your state, you can use the form 4 and no dealer is required on the federal level- unless your state would require a dealer to be involved with a regular firearm of the same type.
2) a dealer in your state, you can use the Form 4 and the dealer can fill out the documents.
3) a dealer in anther state, you must use a Class 3 SOT transfer agent within your state to take possession of the firearm, then they will act as a local dealer and follow the instructions in #2 above.
4) an individual in another state, you and the other individual must each use a Class 3 SOT transfer agent or dealer in your state. The two dealers can transfer the items between themselves with the proper documentation, and then you can pick up the item, upon approval from the ATF, from your in state dealer / transfer agent.

If you have questions regarding the NFA, Title II, Class 3, or Gun Trusts contact a Gun Trust Lawyer

When filling out a Form 1 for the first time with your NFA trust it can be confusing. With an ATF Form 4, there is typically a dealer involved or someone who has done it before so there are not as many questions. I have created a page on How to fill out a Form 1 with a link to a 5320.1 Form 1 that you can download and a sample that is filled out that can be used as a guide. The page also includes instructions on what information should be contained in your Form 1.

While a trustee needs to sign the Form 4 or Form 1, no additional paperwork is required because a NFA Gun Trust is being used. Other Trustee's do not need to sign the paperwork, if you are using a properly drafted NFA trust that authorized any Trustee to make the purchase without consent of the other trustees.

This is something that you may want to modify in your trust and should talk with a Gun Trust Lawyer about.

In addition, the trustees do not have to include fingerprints or go through a background check by the CLEO as is required by an individual. NOTE: Most states and gun stores will run the NICS check on the person who is picking up the weapon, upon approval by the ATF.

According to Mr. Howard, the section chief of the ATF, there is no requirement under the NFA or BATFE to update a modified Trust with the ATF when the people involved are modified. The only time that the ATF must be notified is if one of the Trustees becomes ineligible to be in possession of the items.

A properly drafted NFA trust should notify under which conditions a Trustee should resign, whom they need to notify, and the time constraints required under to avoid having the weapons seized and to avoid risk of jail time and monetary penalties.

To speak with a Gun Trust Lawyer, Contact Us.

Free NFA Trusts from your dealer - are they worth the paper they are written on, or could you face jail time for relying on bad advise from your dealer?

Recently I was contacted by a client who's gun dealer provides their clients a free Revocable Trust to purchase NFA items. After reviewing the Free NFA Gun Trust Form, I was shocked to discover that there was no way this trust could create a valid trust. A trust by definition must separate beneficial and legal ownership of the assets that are held in the trust. If this is not done, there is no trust. If there is no trust, any transfer to the trust is a violation of the NFA whether or not approved by the ATF. If you are in possession of a NFA firearm and your trust is not valid, you have committed multiple violations of the NFA each of which is subject to a 10 year jail sentence, $250,000 in fines & forfeiture of the firearms.

While some people are interested in only acquiring the firearms, many are interested in protecting their family and friends from illegal purchases, transfers, possession and other activities that would subject them to 10 years in jail and $250,000 penalties associated with each NFA violation for a trust.

The following are potential problems with the trust that is provided to clients for free. They really do not matter since the trust is invalid but it may help many of you evaluate similar trusts that are posted on the Internet. You may want to download a copy this Invalid Generic NFA trust.doc review with a few of the basic problems found in the trust.

Starting with the top This trust is setup up for 1 creator and trustee. This will expose many families to violations of the NFA for constructive possession IE- your spouse uses, wants to use, has access to, or knows the combination to the firearms safe. - A violation of the NFA. In addition, it allows no one else to use the firearms or be in possession of them other than the individual.

Why include NFA in the name, this only makes the trust's purpose recognizable by others in dealing with the NFA but not a major flaw.

The Insert name here leads people to create long trust names and can cause problems with identification. Lets assume I create the David Michael Goldman Revocable Living Trust dated August 10, 2009 and my wife is in possession of a firearm that is transferred to the trust, how do police know that my wife (who is not David Michael Goldman) is legally able to be in possession, since most police incorrectly believe that these items are illegal to begin with, the chance that she will be detained until proper possession can be proven is much greater than if we used a different naming schema for the the trust.

Please note, the document I have lined to does not create a legal trust and should never be used. Once an item is illegal, it can not become legal through a future transfer.

Part 2
This is problematic for the trustee and grantor as any trustee can purchase NFA firearms. if the trust is revoked all those in possession are illegally in possession and subject to the criminal penalties associated with violating the NFA. In addition it allows someone acting under a power of attorney to potentially revoke the trust (assuming it was valid to begin with.)

Part 3
Children's sub trusts are only created once the settlor dies, this does not make sense that the trustee - presumably the owner because of how you structured the trust will be the trustee. Also this trust gives no guidance to the trustee about how to accomplish the transfer without violating the NFA. There is no mention of what these trusts are nor how to create them. This is language taken from a quicken trust and shows the danger of copying a trust from someone else. A NFA trust should rarely discuss children's sub-trusts as the concept does not make sense in relation to firearms, restricted transfer, illegal ownership by minors and many other factors.

Part 4
This creates a very long name to engrave and use on Form 4's or Form 1's

<Insert Your Name Here>, trustee of the <Insert Your Name Here> NFA Trust, dated <Insert date of trust here Month day, Year.>

Part 5
Tells a trustee they can buy sell lease make alterations to NFA items with no guidance or indication that specific procedures need to be followed or the trustee and buyer or seller will all be subject to the penalties of violating the NFA.

This trust does not name a successor trustee nor a beneficiary nor describe how they will be selected.

This document will not create a legal trust, and anyone who has used this document to create a trust and purchased items subject to the NFA is illegally in possession of the Title II firearms - regardless of the approval from the NFA. The NFA approval assumes a valid trust and does not guarantee that a trust is in place.

If you have used this trust or a similar trust I would suggest contacting a Gun Trust Lawyer and amending and restating your trust before the ATF comes knocking on your door as they have for others.
See this article and this article this article and this article on problems with quicken and legal zoom.

Any current Trustee of the NFA trust may use the firearms. A properly drafted NFA trust will have provisions that make a trustee ineligible to serve if they are disqualified for one of the legal reasons a person cannot be in possession of an Title II firearm under the NFA.