Many individuals are using Quicken, LegalZoom, or traditional revocable trusts to purchase firearms regulated by the NFA. A traditional trust is not appropriate for the purchase, transfer, or use of NFA firearms because of the unique characteristics of these firearms. A typical revocable trust is created to protect an individual from others who might abuse their powers and detrimentally affect their interest in the property that is owned by the trust. These traditional trusts are problematic for holding assets regulated under the NFA because they do not consider the penalties and legal obligations of those involved with the trust in relation to state and federal laws. As lawyers we have a duty to become knowledgeable and competent in the areas in which we practice or associate with someone who can provide the knowledge necessary to provide the legal service we are offering. A lawyer who provides a traditional trust to a client with the intent of purchasing, holding, transferring, or using NFA firearms opens themselves up to a malpractice claim because the traditional trust instructs individuals to take actions which violate the NFA. While this may not be apparent during the grantor's life, the violations often come to light upon the death or incapacity of the grantor.
During the life of the grantor, while the problems may be minimized, there are still potential problems with a traditional revocable trust when used to hold NFA firearms. Most gun dealers and lawyers do not understand the importance of purchasing the items correctly or protecting others from constructive possession. While the ATF does not appear to be prosecuting individuals for the improper purchase or storage or sharing of these items at this time, there is no intent required in the NFA and a policy change could subject many individuals, their families, and friends to the penalties involved in a NFA or state violation.
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