Possession and transfer of NFA items are regulated by Federal law and individually by each state under its own laws. Each state is different in its weapons laws and in its estate laws. Therefore, a Gun Trust drafted in another state by a licensed attorney there may not be a valid trust in Texas. Or, it may be valid, but lack specifics intended under Texas Probate Law.
One set of facts equally applicable to all states and federally is prohibited persons are not allowed to possess NFA weapons. Prohibited persons, as defined under 18 U.S.C. §922(g), include convicted felons, anyone convicted of a crime punishable by imprisonment for longer than a year, anyone who is an unlawful user or addicted to any controlled substance, anyone found to have a mental illness, anyone convicted of a domestic violence offense, anyone dishonorably discharged from the Armed Forces, renounced citizens, anyone who is under a protective order, or an illegal alien. States can and often do impose more limitations on who can possess NFA items or any firearms.
Therefore, anyone dealing with an estate or the planning of an estate including NFA weapons should consult with an attorney experienced with firearms and the laws regulating them. Also, making sure one is consulting with an attorney licensed in the state they reside and the trust is drafted under the codes of the same state is paramount, as well. I have been a licensed attorney with the State Bar of Texas since 2001 and am also a member of the State Bar College and a licensed Type 07 FFL.
When one transfers items into a trust, the trust becomes the owner of the items. Those items are held “in trust” for the benefit of a “beneficiary.” It is important to understand what ramifications and legal duties are accepted in becoming a trustee. I understand NFA and Texas law to know how your desires, plans and goals can be written into a trust plan ensuring your NFA items are lawfully owned and passed to whom you wish under the circumstances you wish them to pass. Unless the items in the trust are sold by the trustee, the items belongs to the trust as long as the trust exists.
Completing my fairly comprehensive questionnaire gives me a quick look at what and who is important to you. Following up with consultations to narrow your intent will allow me to specifically draft a trust for your needs and desires.
A Gun Trust can contain multiple co-trustees, allowing them to individually possess the NFA items owned by the trust. Of course, a co-trustee or beneficiary cannot be one of the previously enumerated prohibited persons. A NFA firearm trust can allow various people to possess and use the items owned by the trust. Multiple trustees can be named who have the authority to possess the trust’s assets. Those persons and beneficiaries can be designated at the outset of the trust or added or deleted at a later date. Without a trust, the individual owner, and no one else, can possess or use the Class 3 weapon. There is no requirement to transfer the gun trust assets upon the death or legal incapacity of a trustee or beneficiary.
As an individual, the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) requires a purchaser of any NFA weapon to submit fingerprints, a photograph and the signature of the Chief Law Enforcement Officer (CLEO) to accompany any application to make or transfer a registered NFA item. This process can be difficult to impossible depending on the jurisdiction in which you reside.
Prior to July 13, 2016, a trust allowed a streamlined process. However, with the effectuation of Rule 41F on July 13, 2016, the BATFE began requiring fingerprints, pictures, and a law enforcement notification for all NFA applications…be it an individual or a “responsible person” in an entity such as a trust. The streamlined process is now a thing of the past. Even thought this is true, a trust is still a valid tool for possessing, transferring and sharing restricted items.
A Gun Trust provides reliably passing firearms to family, confidentiality regarding the ownership of the NFA weapons owned in the trust, and flexibility and ease of transfer. It is important to work with an attorney versed in NFA and state weapons law, trust execution and planning.
