Articles Posted in How to Purchase a NFA Title II (Class 3) Firearm

One of the most common questions I get pertains to the use of regular or other so called gun trusts for the purchase of items restricted by the NFA.

The are many differences between a family, limited, or standard revocable trust and our NFA Firearms Trust. The biggest difference is that other types of revocable trusts are designed to protect your assets from the abuse of others and our trust is designed to allow for the abuse (the use) of the firearms. Our NFA firearms trust has be re-written from the ground up to protect your firearms and those who use them or are in possession of them.

In fact, you should not put non-firearms in the NFA trust and if you have a pour over will, you should change the will to direct that any firearms remaining in your estate go to your firearms trust and the remainder of the assets go to your traditional trust.

While its legal to give someone a form for a trust or will to fill out, its illegal for a non-lawyer to help them complete the form or fill it out for them. Gerry Beyer of the WIlls, Trust & Estate Prof Blog brought my attention to this issue. Many software manufactures, firearms manufactures, gun stores, and individuals do not understand that the act of helping someone create legal documents without a license to practice law is the Unauthorized Practice of Law (UPL) and a crime in every state. The reason these actions are prohibited by state law is that individuals without the proper legal knowledge and background tend to give wrong, inaccurate, and misleading advise to others who can be harmed by the misinformation.

Take for example the Silencer manufacture in the Midwest, who use to post a free trust for their clients. While a lawyer could have taken that trust and completed it correctly, it was missing some very important language which made the trust invalid in almost every state. The ATF was approving these trusts for a while, but as these individuals have been going back to make new purchases, they are being told that their trust is not valid.

Likewise, there are many examples of Quicken trusts that are posted on the INTERNET. Besides being inappropriate for NFA firearms, which a non-lawyer would not understand, many are not valid in other states. We have seen many people trying to use an Arizona trust in Florida. The problem is Florida has different requirements for a valid trust than Arizona and while if the trust was created in Arizona it might be valid, if it is created in Florida it will not comply with the Florida Trust Code. We see these issues all over the country and this is why we work with more than 100 lawyers in over 40 states to help individuals and their families prepare valid trusts that deal with the unique issues of NFA firearms ownership, transfer, possession, and use.

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.

NOTE The 5330.20 has been integrated into the Form 4 and Form 1 as of July 12,  2016 so this is no longer necessary.

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 (also called Title II Firearms) are guns and other items regulated by the National Firearms Act (the “NFA”). Many people mistakenly refer to them as “Class 3” firearms or weapons. The NFA regulates the sale, use, possession, and transfer of machine guns, short-barreled shotguns and rifles, silencers, destructive devices, and AOWs.

In most states, some or all of these items are LEGAL to own. In addition to state regulation, federal law regulates these items under the NFA. Individuals, business entities, and trusts are permitted to purchase NFA firearms if allowed by state law. To obtain permission to transfer or make these items, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the “BATFE” or “ATF”) requires completion of a Form1 or Form 4 along with payment of $200 for a tax stamp.


No CLEO Signature Required

The ATF requires that all individuals obtain approval from their Chief Law Enforcement Officer (the “CLEO”) as part of the application process to obtain a Title II firearm from another individual or Class 3 dealer. Many CLEOs around the country are refusing sign or even acknowledge the ATF Forms. There is no legal remedy in most states to force the review of these forms. If using an NFA Firearms Trust to purchase a weapon, the Form 4 does not require the CLEO’s signature.

crime-tape.jpgNFA 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.

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.

crime-tape.jpgI was contacted by the firearms dealer offering the Free downloads of the NFA trust and they have removed the links on their website. Since being contacted, by this dealer I have had reports of other dealers in Florida, Texas, Arizona, Utah, Nevada, and South Carolina who are offering Free trusts.  While I have not had a chance to review all of them, there have been several trusts that were not set up correctly and pose substantial risks to the clients, their spouses and families for Constructive possession of NFA firearms.

The question still remains as to what will happen to their clients and others who have downloaded the invalid trusts and submitted them to the ATF. Apparently the ATF has approved them. It should be noted that just because ATF approved a Form 4 or Form 1 Transfer, this does not mean you are legally able to possess the firearms. They are only approving the ability to transfer the NFA firearms to a legal entity described on the Form 4 or Form 1.

To read more on this topic see the original article Free NFA Trust Form for Class 3, Title II purchases.  This article was written by David M. Goldman a Jacksonville Estate Planning and Probate Lawyer at the Law Office of David M. Goldman PLLC  PLLC.

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.

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