Modify my gun trust?
Given the pending 41P/F implementation in the next year, we have been getting a lot of questions.
As with all legal answers, the answer is “IT DEPENDS“. Let me clarify how 41P/F will impact an existing Gun Trust.
Should I modify my gun trust? The first thing you must determine is who is a responsible person under your trust. In general all trustees and co-trustees will be considered responsible persons under the new definition for Gun and NFA trusts. The draft of 41F which is expected to be published soon states that the DOJ has clarified that the term “responsible person” for a trust or legal entity includes those persons who have the power and authority to direct the management and policies of the trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or entity. The primary issues here discussed in this article regard the right to possess or have an NFA firearm in their possession, even if supervised.
If your trust was designed by a Gun Trust Lawyer® then the trustees and co-trustees are generally the only responsible parties in your trust. If you trust is not from us, then it may include the people near your trustees and / or beneficiaries named in the trust. In an effort to be more flexible, some trusts have been written to give non-traditional powers to beneficiaries and even other classes of people like bystanders. This can create problems for several reasons including when 41F is implemented because you many not be able to get a fingerprint card for a 2 year old, or beneficiaries who ma be overseas, or it may be expensive and time consuming to obtain these for all the people who you might decide to let use your NFA firearms. If you have one of these trusts, you may want to amend your gun trust prior to your next purchase (after 41F is implemented) to avoid the inability to make purchases because you have a trust which creates these powers. I have had many discussions with lawyers around the country about why this was a bad idea in the past, and now it may up hurting the individuals and families who unknowingly acquired these. In addition, in my opinion, it is a poor idea to include these types of powers because there is generally no way to bind a beneficiary to the terms of the gun trust. In addition, a beneficiary may not be mature, responsible, or old enough to be bound even if they are of legal age.