How will SB281 affect adding members to a Trust?

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  • Klunatic

    Ultimate Member
    Feb 28, 2011
    2,923
    Montgomery Cty
    I was mulling over adding a friend to a NFA trust. Would that be possible now under SB281? I have 3 items in the trust 2 SBR's and a Suppressor. This friend doesn't have and HQL either. If I add him to the trust will he have to get a HQL to use the weapons?
     

    tc617

    USN Sub Vet
    Jan 12, 2012
    2,287
    Yuma, Arizona
    The entire HQL is a joke.

    I understand why you would question that your friend may need a HQL for a SBR since Maryland classifies them as handguns, but we all know that is a farse.

    If SBRs were truely treated as handguns in Maryland, then every SBR sold on a Form 4 should be listed on the MSP Handgun Roster by name, and include a spent shell casing. :rolleyes:
     

    Klunatic

    Ultimate Member
    Feb 28, 2011
    2,923
    Montgomery Cty
    Its not only the HQL but also wonder if SB281 would prevent adding someone to the trust as they might construe this as transferring a regulated/banned firearm.
     

    anderson76

    Active Member
    Feb 16, 2013
    209
    OP,

    My response is based on the following assumption: (1) your SBRs meet the definition of “Assault Weapon”, (2) your gun trust is a fairly standard revocable trust, and (3) by add your friend to the trust you intend to make him a co-trustee.

    The HQL is the least of your concerns. § 4-303 (a) of the Criminal Article, subject to limited exception, prohibits the possession and transfer of what meets the definition of Assault Weapon:

    (a) Except as provided in subsection (b) of this section, a person may not:
    (1) transport an assault weapon into the State; or
    (2) possess, sell, offer to sell, transfer, purchase, or receive an assault weapon.

    Under Md. law, it is the trustee who holds legal title to the trust property. If you add your friend as a co-trustee than he to holds title to the SBRs. Is that the type of transfer that is prohibited under the ban? I don’t know.

    Even if the transfer is not problematic, your friend cannot lawfully posses the Assault Weapon.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    Its not only the HQL but also wonder if SB281 would prevent adding someone to the trust as they might construe this as transferring a regulated/banned firearm.

    Wow. I am sure that is a question that the GA never considered. I am supposing that if adding someone to the trust would afford that person access to a handgun, then that person could be treated as "receiving" a handgun. A person may not "receive" a handgun without a HQL under section 5-117.1. Of course, "receive" is not a defined term, so that is uncertain. The same issue for assault weapons and you have the added problem of possession
     
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    SneakySh0rty

    Active Member
    Aug 22, 2013
    608
    Pasadena
    OP,

    My response is based on the following assumption: (1) your SBRs meet the definition of “Assault Weapon”, (2) your gun trust is a fairly standard revocable trust, and (3) by add your friend to the trust you intend to make him a co-trustee.

    The HQL is the least of your concerns. § 4-303 (a) of the Criminal Article, subject to limited exception, prohibits the possession and transfer of what meets the definition of Assault Weapon:

    (a) Except as provided in subsection (b) of this section, a person may not:
    (1) transport an assault weapon into the State; or
    (2) possess, sell, offer to sell, transfer, purchase, or receive an assault weapon.

    Under Md. law, it is the trustee who holds legal title to the trust property. If you add your friend as a co-trustee than he to holds title to the SBRs. Is that the type of transfer that is prohibited under the ban? I don’t know.

    Even if the transfer is not problematic, your friend cannot lawfully posses the Assault Weapon.

    Interesting, never thought about it that way. I was going to say no to the HQL.

    Could he list his friend as a beneficiary that can handle the sbrs or suppressors? Trustee holds title the property but allows beneficiaries to access the NFA firearms, as long as they are not a prohibited person and of the age of 18?
     

    Afdiesel

    Member
    Mar 7, 2013
    70
    Middletown
    Beneficiaries never have unrestricted access to the property in the trust until the trustees die. You would also lose some legal protection of the trust by commingling title 1 and title 2 firearms by trying to avoid any HQL issues. It's not worth it to me, you have to look out for number one. Let your buddies jump through all the hoops on their own.
     

    Klunatic

    Ultimate Member
    Feb 28, 2011
    2,923
    Montgomery Cty
    Its not only about friends but also family. I have no intention of putting non-NFA items in my trust either. That still leaves the question of how SB281 affects trusts and addint trustees.
     

    anderson76

    Active Member
    Feb 16, 2013
    209
    Interesting, never thought about it that way. I was going to say no to the HQL.

    Could he list his friend as a beneficiary that can handle the sbrs or suppressors? Trustee holds title the property but allows beneficiaries to access the NFA firearms, as long as they are not a prohibited person and of the age of 18?

    In a trust, the trustee holds legal title to the trust property. The trustee is the “real owner”. He manages the trust property for the benefit of the beneficiaries in accordance with the terms and conditions of the trust agreement and whatever fiduciary obligations imposed upon him by MD law. The beneficiaries are the equitable owners of the trust property. So does acquiring and equitable ownership interest in the trust property amount to an unlawful transfer of an Assault Weapon? I don’t know. Probably not. However this is a moot point.

    The trust agreement can be drafted to allow the beneficiaries to have as much or as little control / possession of the trust property as the settlor / grantor desires (well almost, no person can have complete legal and equitable ownership or the trust will fail). However, if you were to add a beneficiary to the trust post ban, that beneficiary cannot lawfully “possess” any assault weapon in the trust.

    SB281 created a lot of issues with respect to the use of trusts to own what are now considered Assault Weapons. What if I told you that you may not be able to pass via inheritance Assault Weapons held in trust?
     

    Lex Armarum

    Ultimate Member
    Oct 19, 2009
    3,450
    Something has always troubled me about my issues with Anderson76 and our differences in opinion over the effects of SB281 and trust law. After a long soak in the tub, I've figured out what is bothering me: Anderson76 is throwing out information in relative anonymity and I am countering that information without the cloak of anonymity. He/She could challenge me all day and all night, post scenarios, or just plain impugn my judgment without ever incurring any damage to his/her reputation or business while I might sustain a great deal of damage regardless of whether I am right or wrong in the end. In other words, I am incurring a great deal of liability and exposure on this matter while Anderson76 essentially risks nothing. For that reason, I am deleting my substantive posts on this matter and merely leaving my opinion of Anderson76's opinion. I am more than happy to talk through the issues presented in this thread over the telephone; please feel free to call me.

    I'm warning all of you now: be careful about what Anderson76 is telling you. He sounds educated and maybe he's an attorney but he is wrong or misguided on many of these issues. Please think twice before taking his analysis as gospel.
     
    Last edited:

    erwos

    The Hebrew Hammer
    MDS Supporter
    Mar 25, 2009
    13,866
    Rockville, MD
    To be fair, a lot of this is because the MSP and AG seem to think they can just ignore trusts for firearms because they're legally inconvenient for them...
     

    Klunatic

    Ultimate Member
    Feb 28, 2011
    2,923
    Montgomery Cty
    I’m glad you finally set forth your rational on this issue. I don’t understand why you were so tight lipped about it when I tried to tease it out of you in another thread. You defiantly get an A for creativity, but man, I think that there is really a break down in logic here. A lot of what you say is true, 50% of what you say is just bat sh@! crazy. But I am glad you finally went on record with it. I will address your argument in greater detail later.



    Just out or curiosity, were you a hall monitor as a kid or something?

    We know Rusty's credentials, if you want to argue your points why don't you answer Rusty's questions about your background, Lawyer? Until then I believe and trust Rusty's assertions.
     

    anderson76

    Active Member
    Feb 16, 2013
    209
    To be fair, a lot of this is because the MSP and AG seem to think they can just ignore trusts for firearms because they're legally inconvenient for them...

    Erwos,

    Did you ever raise the issue of trusts directly with the MSP? If so, I’m curious as to their response?

    I know they won’t perform a regulated transfer “to a trust”.

    What I am interested in is whether they would perform a regulated transfer to a trustee?
     

    Klunatic

    Ultimate Member
    Feb 28, 2011
    2,923
    Montgomery Cty
    What exactly are Rusty’s credentials? Is he a gun trust expert because he says he is? What exactly is his experience? How would you really know if he drafted a good or bad trust? But he is a lawyer. So what. What if I told you that you can be completely ignorant of basic trusts and estates concepts and still graduate law school and pass the MD bar exam. Having a J.D. is not a cloak of infallibility. How much do you really know about Rusty?

    I don’t come here to solicit business. I post ominously because that’s my prerogative. I offer my opinions here to add to the knowledge base. Every position I take I try to support with authority. Rusty has said some stuff here that is incorrect. I intended to address this in more detail and support my positions. If Rusty is competent then his positions should withstand a little bit of scrutiny.

    Believe who you want to believe.

    I have worked with Rusty, and I do trust him. On the other hand who are you? Anonymously( and ominously) posting that Rusty doesn't know what he is doing. Promising to back up what you say at a later date? You don't have reveal who you are to at least suggest you have some credentials and experience. What makes you the expert in NFA trusts?

    I am not saying you don't have knowledge that Rusty does possess but at this point you are just an armchair lawyer taking pot shots at some else.
     
    Last edited:

    Lex Armarum

    Ultimate Member
    Oct 19, 2009
    3,450
    I’m glad you finally set forth your rational on this issue. I don’t understand why you were so tight lipped about it when I tried to tease it out of you in another thread. You defiantly get an A for creativity, but man, I think that there is really a break down in logic here. A lot of what you say is true, 50% of what you say is just bat sh@! crazy. But I am glad you finally went on record with it. I will address your argument in greater detail later.



    Just out or curiosity, were you a hall monitor as a kid or something?


    Argh... I just wrote a really long post explaining why you're wrong on so many points and I lost power at home. I'm not gonna take the time to rewrite it so I'll simply say this:

    I take a very dim view of the unlicensed practice of law; especially when said person is giving poor legal advice to members of this forum. I've discussed everything I've written above with numerous attorneys who have practiced law in this state for a number of years and each one I've spoken with has agreed with me. I don't have the time or the inclination with argue with an internet lawyer; moreso, since I've tried to reach out to you publicly and privately in order to have a detailed conversation about the information you're providing and you've rejected my offers to talk. The fact that you refuse to speak with me tells me you've something to hide. If you're an attorney, I am happy to have a congenial discussion with you offline as to why I believe you are wrong. If you're not an attorney, then you need to STFU about legal matters and stop giving out bad advice. Giving out bad legal advice isn't a game and it is a disservice to the members of this community.
     

    Norton

    NRA Endowment Member, Rifleman
    Staff member
    Admin
    Moderator
    May 22, 2005
    122,856
    I take a very dim view of the unlicensed practice of law; especially when said person is giving poor legal advice to members of this forum.

    He is a Maryland licensed attorney.

    Let's just say his presumption of the cloak of anonymity is not a complete as he would believe.
     

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