Uncle in Texas put his M1A in his will for me. Can I legally accept?

[kalister1]

Quoted from https://www.google.com/url?sa=t&rct...7dR_-9oRfx_RmpQ&bvm=bv.96041959,d.cWc&cad=rja


Please see bold portion.

While I am NOT an attorney, this seems to say the executor of the will can ship the firearm directly to the individual

Transferring/Shipping/Possession of Firearms:
4. May I lawfully transfer a firearm to an individual who resides in a different State? What if the individual resides within the same State?
Under Federal law, an unlicensed individual is prohibited from transferring a firearm to an individual who does not reside in the State where the transferee resides. Generally, for a person to lawfully transfer a firearm to an unlicensed person who resides out of State, the firearm must be shipped to a Federal Firearms Licensee (FFL) within the recipient’s State of residence. He or she may then receive the firearm from the FFL upon completion of an ATF Form 4473 and a NICS background check. More information can be obtained on the ATF website at www.atf.gov and http://www.atf.gov/firearms/faq/unlicensed-persons.html. The GCA provides an exception from this prohibition for temporary loans or rentals of firearms for lawful sporting purposes. For example, a friend visiting you may borrow a firearm from you to go hunting. Another exception is provided for transfers of firearms to nonresidents to carry out a lawful bequest or acquisition by intestate succession. This exception would authorize the transfer of a firearm to a nonresident who inherits a firearm under a will or by State law upon death of the owner. See 18 U.S.C. § 922(a)(5)(A).

 

[swinokur]

It is legal under both Federal and MD law.

 

[lx1x]

A carve out is not a loophole.

I agree... Not really a loophole "yet".. But it will be the first if it does happen.

 

[Jim12]

Hmmm... Good thing we have this forum. Many don't.

Just think, many thousands of law abiding Marylanders don't know the complex, convoluted law, don't belong to MDS, but hear how difficult or nearly impossible it is to comply with Maryland's FSA2013 -- and just throw their hands up in the air, say, "I give up," and forgo their perfectly lawful Second Amendment rights in order to avoid inadvertent criminality.

That's the way O'Mao and the MGA want it. "Phase out" the Second Amendment with complexity and FUD.

 

[EVOIXGSR]

Thanks all. Hopefully, I won't have to worry about this for many years, but still good to know.

 

[Gryphon]

I need to find a friend or relative in another state willing to make a purchase and put me in their will Kind of creepy, but one has to be creative in this screwed up State. That makes driving to PA to pick up a few mags at the sister-in-laws pretty tame by comparison. Hey Sis, would you mind buying an M1A and putty me in your will

 

[fabsroman]

Hmmm... Good thing we have this forum. Many don't.

Just think, many thousands of law abiding Marylanders don't know the complex, convoluted law, don't belong to MDS, but hear how difficult or nearly impossible it is to comply with Maryland's FSA2013 -- and just throw their hands up in the air, say, "I give up," and forgo their perfectly lawful Second Amendment rights in order to avoid inadvertent criminality.

That's the way O'Mao and the MGA want it. "Phase out" the Second Amendment with complexity and FUD.

Had one of my clients, also a cycling buddy, call me up right after FSA2013 went into place. He was contemplating making a "loan" to his son, who lives in Alabama, and his son transferring to him a firearm collection as collateral. My client had previously owned guns in the south, but never in Maryland. When I asked him what the collection consisted of, and then informed him he needed a HQL for the handgun transfers and could not take possession of the assault weapons whatsoever, he about had a cow. This was mostly an attempt to keep the firearms out of any possible bankruptcy estate in the foreseeable future. The son had to transfer the collection to his mother who lived in Alabama also. For inquiring minds, the son's parents had been divorced for quite a while.

Yep, gun laws in Maryland suck, but the federal money around DC keeps a lot of us here.

 

[fabsroman]

So a 'banned' firearm, such as the M1A, that is bequeathed to a Maryland resident, becomes a 'regulated' firearm instead?

Interesting. Would this also apply to 'assault pistols' and handguns not on the roster?

Isn't the entire handgun roster only for handguns being transferred by an FFL? I would have to look at that section again to be completely sure, but that is my recollection. Just don't feel like pulling up the statute right now.

Edit to add: Or handguns for sale in Maryland?

Alright, I went and looked at the statute:

§5–406.
(a) (1) Except as provided in § 5-402 of this subtitle, a person may not manufacture for distribution or sale a handgun that is not included on the handgun roster in the State.
(2) A person may not sell or offer for sale in the State a handgun manufactured after January 1, 1985, that is not included on the handgun roster.
(3) A person may not manufacture, sell, or offer for sale a handgun on which the manufacturer’s identification mark or number is obliterated, removed, changed, or otherwise altered.
(b) The Secretary may seek an order from a circuit court to permanently or temporarily enjoin the willful and continuous manufacture, sale, or offer for sale, in violation of this section, of a handgun that is not included on the handgun roster.
(c) (1) A person who manufactures a handgun for distribution or sale in violation of this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $10,000 for each violation.
(2) A person who sells or offers to sell a handgun in violation of this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $2,500 for each violation.
(3) For purposes of this subsection, each handgun manufactured, sold, or offered for sale in violation of this subsection is a separate violation.

 

[fabsroman]

I need to find a friend or relative in another state willing to make a purchase and put me in their will Kind of creepy, but one has to be creative in this screwed up State. That makes driving to PA to pick up a few mags at the sister-in-laws pretty tame by comparison. Hey Sis, would you mind buying an M1A and putty me in your will :lol2:

Could that possibly be a stretch for a straw purchase? I guess it would be one heck of a stretch if you did not provide the money, but merely made a suggestion. Seriously, all out of state relatives should think about leaving an assault weapon or two for their nieces and nephews stuck in this state.

 

[CypherPunk]

Why would he have to talk to an attorney? He can wait until his uncle passes, when the Will will actually be valid. Then, he can attempt to get this done via a FFL. The only issue is going to be the transfer process and how that will work coming from an out of state estate. I think that would be the only question to this process and MSP should be able to answer that since getting the firearm registered with MSP is the issue. He might want to contact MSP right now to figure it out, but why waste ones time until the uncle has actually passed away and the firearm is to be his. Granted, it would be nice to know the exact process for an out of state transfer like this and for him to post the result of his research.

Kind of surprised at this advise Fabs...

I would submit that it is indeed a good idea for your uncle to review his estate plan before his passing;

1. with an experienced estate attorney,
2. who is familiar with federal firearms law,
3. and the laws of both his state and,
4. the intended recipients state
5. to insure the intent of his last will and testament can be accomplished efficiently and effectively with regard to all laws and minimal costs.

 

[lx1x]

Could that possibly be a stretch for a straw purchase? I guess it would be one heck of a stretch if you did not provide the money, but merely made a suggestion. Seriously, all out of state relatives should think about leaving an assault weapon or two for their nieces and nephews stuck in this state.

Easier to move out.... Lol
(My relatives are not firearm folks).

 

[fabsroman]

Kind of surprised at this advise Fabs...

I would submit that it is indeed a good idea for your uncle to review his estate plan before his passing;

1. with an experienced estate attorney,
2. who is familiar with federal firearms law,
3. and the laws of both his state and,
4. the intended recipients state
5. to insure the intent of his last will and testament can be accomplished efficiently and effectively with regard to all laws and minimal costs.

I thought the reference to reviewing this with an attorney was for the OP, not the OP's uncle. Yes, the uncle should obviously have his estate plan reviewed by an attorney IF the estate is of any significant size. Thing is, I have had people come to me for estate planning and they do not have a pot to piss in. Kind of hard to transfer anything when debts are more than assets. So, whether the uncle really needs an estate planning attorney depends on the facts of the matter.

Now, how many "experienced" estate planning attorneys have experience with the firearm laws of all 50 states? Does the uncle really want to pay an attorney several hundred an hour to research this issue, or merely write a clause such as:

To my nephew, I leave my M1A if it can be legally transferred to him. If it cannot be legally transferred to my nephew, then I leave my M1A to my niece that lives in Texas if it can be legally transferred to her. If my M1A cannot be legally transferred to my nephew, I leave him $1,000 in lieu of the M1A. If my M1A cannot be legally transferred to either my nephew or my niece, I leave each of them $1,000 and the M1A shall be sold and the proceeds included in my residuary estate and disposed according to the provisions set forth in this, my Last Will & Testament, regarding my residuary estate.

My concentration in law school was elder law and estate planning, and gun transfers never, ever, came up in discussion. Sure, I can research the laws for the client, but that stuff costs money. Maybe that is a really good niche to get into, but how many people in Texas or other states in the country are going to be having this issue? Would it really be worth it for an attorney to study the firearms laws of all 50 states for estate planning purposes? I have drafted a decent amount of Wills in my 18 years of practice, and other than mine and my dad's, not a single one has dealt with firearms and I know a lot of people that own firearms.

 

[erwos]

So you telling me there is a loophole? Omg!!!

It's a loophole like grandfathering was a loophole... which is to say, it's not a loophole, it's something the legislature considered.

So why not have his uncle buy all banned aw before he passes and put it on will.

That's perfectly fine.

ERWOS is the great one to find lx1x not so lawyer thinking wrong.

You gave him bad advice that might have cost him a completely legal M1A. Instead of acting like a jackass because someone corrected you, you should be apologizing to him. No one forced you to double down on your position when people told you you were wrong.

 

[lx1x]

It's a loophole like grandfathering was a loophole... which is to say, it's not a loophole, it's something the legislature considered.


That's perfectly fine.


You gave him bad advice that might have cost him a completely legal M1A. Instead of acting like a jackass because someone corrected you, you should be apologizing to him. No one forced you to double down on your position when people told you you were wrong.

Apologize to him? Or you?

Seems like youre the only one that have your panty in a bunch.

I simply ask post the code.. Nothing more or less.. Smh

 

[fabsroman]

I'm wondering if the firearm still had to be purchased before the Oct 2013 deadline.

There are so many questions to answer in this thread:

§5–102.
This subtitle does not apply to:
(1) the transfer or possession of a regulated firearm or detachable magazine:
(i) for testing or experimentation authorized by the Secretary; and
(ii) by a federally licensed gun manufacturer, dealer, or importer;
(2) the sale, transfer, or possession of an antique firearm;
(3) an unserviceable firearm sold, transferred, or possessed as a curio or museum piece;
(4) law enforcement personnel of any unit of the federal government, members of the armed forces of the United States or the National Guard, or law enforcement personnel of the State or any local agency in the State, while those personnel or members are acting within the scope of their official duties;
(5) a regulated firearm modified to render it permanently inoperative;
(6) purchases, sales, and transportation to or by a federally licensed gun manufacturer, dealer, or importer;
(7) an organization that is required or authorized by federal law governing its specific business or activity to maintain firearms;
(8) the receipt of a regulated firearm by inheritance, if the heir forwards to the Secretary a completed application to purchase or transfer that regulated firearm; or
(9) a signal pistol or other visual distress signal that the United States Coast Guard approves as a marine safety device.

§5–101.
(a) In this subtitle the following words have the meanings indicated.

...

(r) “Regulated firearm” means:
(1) a handgun; or
(2) a firearm that is any of the following specific assault weapons or their copies, regardless of which company produced and manufactured that assault weapon:
(i) American Arms Spectre da Semiautomatic carbine;
(ii) AK–47 in all forms;
(iii) Algimec AGM–1 type semi–auto;
(iv) AR 100 type semi–auto;
(v) AR 180 type semi–auto;
(vi) Argentine L.S.R. semi–auto;
(vii) Australian Automatic Arms SAR type semi–auto;
(viii) Auto–Ordnance Thompson M1 and 1927 semi–automatics;
(ix) Barrett light .50 cal. semi–auto;
(x) Beretta AR70 type semi–auto;
(xi) Bushmaster semi–auto rifle;
(xii) Calico models M–100 and M–900;
(xiii) CIS SR 88 type semi–auto;
(xiv) Claridge HI TEC C–9 carbines;
(xv) Colt AR–15, CAR–15, and all imitations except Colt AR–15 Sporter H–BAR rifle;
(xvi) Daewoo MAX 1 and MAX 2, aka AR 100, 110C, K–1, and K–2;
(xvii) Dragunov Chinese made semi–auto;
(xviii) Famas semi–auto (.223 caliber);
(xix) Feather AT–9 semi–auto;
(xx) FN LAR and FN FAL assault rifle;
(xxi) FNC semi–auto type carbine;
(xxii) F.I.E./Franchi LAW 12 and SPAS 12 assault shotgun;
(xxiii) Steyr–AUG–SA semi–auto;
(xxiv) Galil models AR and ARM semi–auto;
(xxv) Heckler and Koch HK–91 A3, HK–93 A2, HK–94 A2 and A3;
(xxvi) Holmes model 88 shotgun;
(xxvii) Avtomat Kalashnikov semiautomatic rifle in any format;
(xxviii) Manchester Arms “Commando” MK–45, MK–9;
(xxix) Mandell TAC–1 semi–auto carbine;
(xxx) Mossberg model 500 Bullpup assault shotgun;
(xxxi) Sterling Mark 6;
(xxxii) P.A.W.S. carbine;
(xxxiii) Ruger mini–14 folding stock model (.223 caliber);
(xxxiv) SIG 550/551 assault rifle (.223 caliber);
(xxxv) SKS with detachable magazine;
(xxxvi) AP–74 Commando type semi–auto;
(xxxvii) Springfield Armory BM–59, SAR–48, G3, SAR–3, M–21 sniper rifle, M1A, excluding the M1 Garand;
(xxxviii) Street sweeper assault type shotgun;
(xxxix) Striker 12 assault shotgun in all formats;
(xl) Unique F11 semi–auto type;
(xli) Daewoo USAS 12 semi–auto shotgun;
(xlii) UZI 9mm carbine or rifle;
(xliii) Valmet M–76 and M–78 semi–auto;
(xliv) Weaver Arms “Nighthawk” semi–auto carbine; or
(xlv) Wilkinson Arms 9mm semi–auto “Terry”.

I did not see a definition of "handgun" in 5-101. So, the question becomes whether an assault pistol falls under the definition of regulated firearm and it can be inherited by somebody that previously possessed it legally.

As noted in my signature, this advice is worth exactly what has been paid for it and it is not an extensive review of the law as it pertains to these questions. Just something to get people started on finding the information they seek.

 

[fabsroman]

Apologize to him? Or you?

Seems like youre the only one that have your panty in a bunch.

I simply ask post the code.. Nothing more or less.. Smh

Let's try to remember that there are bunch of people on here providing legal advice that are not attorneys. We all make mistakes, even me as an attorney. I learned something new last week. However, we all try to provide whatever knowledge we do have. When wrong, somebody else will be along shortly to provide the correct answer.

Thing is, this question isn't really a simple question, and the OP is going to get what one can expect from a chatboard. Now, paying for advice where somebody sits down and actually reviews the laws and how they apply to the OP's specific situation gets a more thorough result.

Not only that, but there have been some intriguing questions asked in this thread.

What about if the assault weapon was not owned by the decedent pre FSA2013? From my cursory review of the law, it looks like the entire subchapter regarding the banning of assault weapons does not apply if the decedent legally owned the firearm. A decedent in Texas can legally own a firearm at the time he passes, without him acquiring it pre FSA2013.

The next question, which I have not really looked into too much, is whether an assault pistol can be inherited as a regulated firearm. One would probably have to see if an assault pistol is considered a handgun under the sub-title, and if so, then it would be regulated and qualify for inheritance.

 

[lx1x]

Let's try to remember that there are bunch of people on here providing legal advice that are not attorneys. We all make mistakes, even me as an attorney. I learned something new last week. However, we all try to provide whatever knowledge we do have. When wrong, somebody else will be along shortly to provide the correct answer.

Thing is, this question isn't really a simple question, and the OP is going to get what one can expect from a chatboard. Now, paying for advice where somebody sits down and actually reviews the laws and how they apply to the OP's specific situation gets a more thorough result.

Not only that, but there have been some intriguing questions asked in this thread.

What about if the assault weapon was not owned by the decedent pre FSA2013? From my cursory review of the law, it looks like the entire subchapter regarding the banning of assault weapons does not apply if the decedent legally owned the firearm. A decedent in Texas can legally own a firearm at the time he passes, without him acquiring it pre FSA2013.

The next question, which I have not really looked into too much, is whether an assault pistol can be inherited as a regulated firearm. One would probably have to see if an assault pistol is considered a handgun under the sub-title, and if so, then it would be regulated and qualify for inheritance.

Eggxachery..

 

[Blaster229]

Carve outs become "loopholes" when someone gets wind of something they don't like.

 

[lx1x]

Carve outs become "loopholes" when someone gets wind of something they don't like.

Lol.. Qft.

 

[fabsroman]

Carve outs become "loopholes" when someone gets wind of something they don't like.

Yeah, FSA2013 is an entire anti-gun loophole that restricts the freedom of The People and it needs to be done away with.

How the politicians passed such a loophole under the guise of public safety is beyond me. It is merely a loophole for the government to prevent us from exercising our Constitutional Right.