“What a mess,” Leona muttered as she picked through the contents of her deceased father’s garage. “How does one person collect all of this stuff?” She pulled a trunk out from under a pile of rags. “This looks interesting.” She jiggled the padlock that held it closed and it came off in her hand. “Geesh, so much for safeguarding the contents. Dad must have bought this lock at a flea market.”
Herb, her husband, wandered over. “Well, what’s inside?”
Leona lifted the lid and gasped. “Oh, my gosh. Will you take a look at this?” She held up a rifle. “I think this is dad’s hunting stuff. I thought he got rid of the guns after he stopped deer hunting. I guess he just stashed them in the garage instead.”
Herb scratched his head and frowned. “Well, what do we do with those? Did he even mention who inherits them in his will?”
Leona shook her head. “Not that I know of. I’m not even sure what to do with them. Maybe we should sell them at the estate sale and put the cash we get into the kitty.”
Herb laughed. “I think there’s a law against that. Heck, this is California. I’m sure there’s a law against that.”
Leona frowned. “Maybe I should bring them to the probate judge and ask him. I’m just the executor. What the heck do I know?”
Under California law, executors and administrators are subject to certain exceptions, rules, and restrictions regarding the handling and disposition of weapons included in an estate. A proposed law, AB 1292, would extend that body of law to a decedent’s personal representative, a person acting pursuant to the person’s power of attorney, a trustee, a conservator, a guardian or guardian ad litem, or a special administrator.
Generally, estate-owned firearm transactions are governed by both federal and state law, and it is the responsibility of the executor or administrator to comply. For example, despite the terms of a will, a firearm may not be distributed to a convicted felon. If such a transaction occurs, the executor/administrator could be prosecuted under criminal law.
When firearms are discovered to be part of an estate, the executor/administrator should:
- Examine all estate planning documents. Look for any documents that mention or pertain to the ownership of firearms or firearm accessories, including titles, registration, and sales receipts. Determine whether information exists on how or to whom any weapons should be distributed.
- Determine whether a gun trust exists. A gun trust is a revocable or irrevocable trust designed to transfer the right to use or title to firearms. Any legally-owned firearm may be placed in the trust. However, a gun trust is most commonly used for weapons that fall under Title II of the National Firearms Act (NFA). The trust ensures that firearms are transferred in compliance with all gun laws.
- Consult with an attorney. Laws governing the transfer of a firearm are complex. An attorney will help determine what weapons are governed by federal and state law, whether a proposed transfer is legal, the reporting requirements for that weapons transfer, and the best way to register the transfer. They can also provide counsel on a recipient’s legal responsibilities when inheriting a weapon.
- Seek the required government approval. For example, any transfers governed by the NFA must be approved by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). If you inherit a firearm in California, you are required by law to register the transfer of ownership or in some cases, dispose of it. However, the rules regarding that transfer depend on the relationship between the testator (the maker of the document bequeathing the firearm) and the heir, as well as the type of firearm bequeathed.
Normally, the transfer of gun ownership is handled by a Federal Firearm Licensed (FFL) dealer. The gun is held by the dealer during a mandatory 10-day waiting period and the parties are required to complete a Dealer’s Record of Sale (DROS). That initiates a background check with the state Department of Justice. In addition, gun purchasers are required to secure a Firearm Safety Certificate before taking possession of the gun.
However, those rules do not apply to the transfer of a firearm by gift, bequest, or intestate succession if the following requirements are met:
- The testator is a California resident.
- The person receiving the firearm is 18 years of age or older.
- The transfer is “infrequent” (defined as less than six transactions per year or for firearms that are not handguns, occasional and without regularity).
- The transfer is between immediate family members (parent and child, grandparent and grandchild, or spouse).
- Before taking possession of the firearm, the new owner completes a firearms safety course and receives a Firearm Safety Certificate. However, if the new owner is taking possession of a handgun, an existing unexpired handgun safety certificate may be used.
- Within 30 days of taking possession of the firearm, the new owner provides the California Department of Justice with a completed Intrafamilial Firearm Transaction report.
- The weapon being transferred is not an assault weapon.
When a registered assault weapon is included in an estate, California law requires one of the following to occur within 90 days:
- The estate must sell it to an FFL dealer,
- The estate must transport the weapon out of state,
- The estate must register the weapon with the state Department of Justice, or,
- The estate must render the weapon inoperable.
All other transactions—whether by gift, bequest, intestate succession, or other means–must be conducted through an FFL dealer. For example, firearms inherited by a resident of another state who is not an immediate family member must be turned over to an FFL dealer for processing (waiting period/background check/registration). In addition, beneficiaries who are not immediate family members may not take possession of an inherited firearm out of state and bring it into California. That weapon must also be turned over to an FFL dealer in accordance with the law.
California requires the disposal of the following inherited firearms:
- Firearms with altered serial numbers.
- Long guns with barrels that have been modified to less than 18.25 inches.
- Unregistered assault weapons.
Transferring ownership of weapons that are part of an estate is complicated. To protect an executor/administrator, as well as heirs, it is very important to seek legal counsel to ensure that any transactions are conducted within state and federal law.