If You Have An Assault Weapon You Need A Will

[Blacksmith101]

The thought occurred to me that since after October 1st the only common way you can transfer a regulated assault weapon in the state of Maryland is through your death because non prohibited people can still inherit them for the time being. So who do you want to have yours? The only way to be certain is through a will (or possibly a trust) because if you do not have a will the laws of "Intestate Succession in Maryland" will automatically decide how your assets are divided. I suspect the MSP will want to see a copy of the will or the other documents before allowing transfer.

I am not a lawyer but have been a "personal representative" and inheritance is very complicated with lots of things you don't expect. Hopefully some of our lawyers will chime in.

The laws of "Intestate Succession in Maryland" determine who gets what if there is no will and rather than try to give you all the combinations I will give a couple of links to get you started.

The NOLO site has a nice chart showing relationships and has more information than the "official" site:
http://www.nolo.com/legal-encyclopedia/intestate-succession-maryland.html

Here is the "Official" web site, typical Maryland, so read the law to be certain:
http://registers.maryland.gov/main/packets/wills.html

Telling people who gets what or leaving letters or notes won't work with the legal system and since regulated firearms will need an official transfer to take ownership you should consult an attorney because if you don't have a will some of the following might happen.

The guns that you want to go to your grand children end up as your wife's and then they have to wait until she dies and hopefully she has a will.

The guns you want to go to your best friend go to your no good half brother you haven't seen in 20 years.

Your guns will be given to your local board of education.

 

[baconsandwich]

I need to get on this. I'm not married and I don't have any children, so my nephew is gonna get some awesome tools if I ever kick it. Assuming (need to consult my lawyer) that if I die while he is still a minor that my sister and her husband would be able to keep the rifles until he is old enough to legally receive them. Thankfully, they are 2A friendly folks!

 

[smores]

Can you attach non-NFA firearms to a trust? That would also be a good and convenient way to go if possible.

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[ThatGuy179]

Can you attach non-NFA firearms to a trust? That would also be a good and convenient way to go if possible.

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According to my trust lawyer you should never put non NFA items in your trust.

 

[smores]

According to my trust lawyer you should never put non NFA items in your trust.

I'm setting up a trust myself, and the subject never came up, guess I'll ask my guy.

In short, why is it a bad idea?

Sent from my SCH-I535 using Tapatalk 4

 

[fire_medic]

I thought the weapons could be transferred to family with a death happening? Can anyone poi t me to the part of 281 that this is in? I didn't see a sticky with the finally passed version of 281.

 

[teratos]

According to my trust lawyer you should never put non NFA items in your trust.

Mine said the same.

 

[DC-W]

That's a tough one I haven't given much thought to.
My wife wouldn't want them. (in time, maybe)
Both of my brothers live in NY and don't like firearms (yet, I'm working on that).
I don't have any children or have plans to make any.
No nieces/nephews.

 

[jr88]

What would happen to firearms where there was NO will? I thought they would just go to a a surviving spouse, and next in line would be children. Is there something special about firearms in Md. that requires a will?

 

[6-Pack]

I am an estate planning and estate administration lawyer. Intestate succession is basically a will that the State creates for you. In some circumstances a will is unnecessary if you are comfortable with the intestate succession laws (bearing in mind the laws could change in the future). However, to receive firearms, an eligible person will be allowed to inherit them by either will or intestate succession.

Google "Maryland Intestate Will" and you'll see some good examples of how intestate succession works in Maryland (it's different in each state). Also, you may want to read up on familial and spousal shares (if you disinherit certain people they may still be entitled to assets).

You can't put non-NFA firearms into an NFA trust. Federal law allows NFA items to be held by corporations or trusts. There is no similar provision for non-NFA items. That being said, firearms, even under SB-281, are NOT treated differently than any other asset for estate administration/probate (bearing in mind the heir or legatee needs to be eligible to receive the firearm).

However, wills are only a fraction of an estate plan. The more important documents are powers of attorney because they are in effect while you are alive (wills only take effect once you die). Trusts are another estate planning vehicle (you still need a will even if you have a trust) that have a proper time and place for use.

 

[Blacksmith101]

You can't put non-NFA firearms into an NFA trust. Federal law allows NFA items to be held by corporations or trusts. There is no similar provision for non-NFA items. That being said, firearms, even under SB-281, are NOT treated differently than any other asset for estate administration/probate (bearing in mind the heir or legatee needs to be eligible to receive the firearm).

Can you put firearms, non NFA ones, in a Living Trust?

 

[jonnyl]

I'm setting up a trust myself, and the subject never came up, guess I'll ask my guy.

In short, why is it a bad idea?

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some info here: http://www.mdshooters.com/showthread.php?t=129851

 

[6-Pack]

An "NFA Trust" is just a way of saying "Revocable Trust Holdig Only Firearms."

A living trust and revocable trust are the same thing.

There is no provision that I'm aware of that allows a corporation or trust to hold non-NFA items. In other words, NFA items are granted a little flexibility in that a corporation or trust can hold the firearms, and other firearms must be held by "people."

 

[Blacksmith101]

Meaning firearms must always go through probate? I thought you could put any type of personal property, i.e. houses, cars, furniture, etc., in a living trust thus avoiding probate because the decedent in effect owned nothing.

 

[6-Pack]

Meaning firearms must always go through probate? I thought you could put any type of personal property, i.e. houses, cars, furniture, etc., in a living trust thus avoiding probate because the decedent in effect owned nothing.

You are exactly right: "the decedent in effect owned nothing"

If an individual is required to have title to non-NFA firearms, the trust cannot hold title to the guns.

I'm not saying that some things have never slipped through an Accounting or Inventory of an estate in the history of mankind, but legally they should go through probate (at least for "regulated"). If its not "regulated," who knows it even exists?

 

[fabsroman]

I'm setting up a trust myself, and the subject never came up, guess I'll ask my guy.

In short, why is it a bad idea?

Sent from my SCH-I535 using Tapatalk 4

Rusty and I discussed the entire trust thing with assault weapons as a possible work around for a client of mine that is prohibited for a year because of a DUI incident. Anyway, Rusty's position was that a NFA trust would not work for items that are not NFA items. I did not explore the issue of a regular trust for non-NFA items. The real question is whether a standard trust can take ownership of a non-NFA firearm.

Guess I am going to have to look this matter up now myself because I have my will drafted such that my wife gets all my firearms if she survives me, and if she doesn't, then my son gets all of them. Problem is, my son is 4 years old. The other problem is that I drafted all of these documents back in 2009 and have had another child since then. Per the current wills, the first two kids have specific bequests with the remainder being split between all surviving children, so that needs to be changed. Might as well look into the firearm issue too while I am at it.

At the end of the day, if a trust cannot own a firearm, then the trustee would have to sell them. What a freaking mess since I have testamentary trusts set up should my wife and I both pass on before the kids are 18 years old.

I do estate planning and I believe Rusty does too. I just don't deal with NFA trusts, while Rusty does.

 

[fabsroman]

I thought the weapons could be transferred to family with a death happening? Can anyone poi t me to the part of 281 that this is in? I didn't see a sticky with the finally passed version of 281.

4–302.
This subtitle does not apply to:

(1) if acting within the scope of official business, personnel of the
United States government or a unit of that government, members of the armed forces of the United States or of the National Guard, law enforcement personnel of the State or a local unit in the State, OR A RAILROAD POLICE OFFICER AUTHORIZED UNDER TITLE 3 OF THE PUBLIC SAFETY ARTICLE OR 49 U.S.C. § 28101;

(2) a firearm modified to render it permanently inoperative;

(3) POSSESSION, IMPORTATION, MANUFACTURE, RECEIPT FOR MANUFACTURE, SHIPMENT FOR MANUFACTURE, STORAGE, purchases, sales, and transport to or by a licensed firearms dealer or manufacturer who is:
(i) providing or servicing an assault [pistol] WEAPON or detachable magazine for a law enforcement unit or for personnel exempted under item (1) of this section; or
(ii) acting to sell or transfer an assault [pistol] WEAPON or detachable magazine to a licensed firearm dealer in another state OR TO AN INDIVIDUAL PURCHASER IN ANOTHER STATE THROUGH A LICENSED FIREARMS DEALER; OR
(III) ACTING TO RETURN TO A CUSTOMER IN ANOTHER STATE AN ASSAULT WEAPON TRANSFERRED TO THE LICENSED FIREARMS DEALER OR MANUFACTURER UNDER THE TERMS OF A WARRANTY OR FOR REPAIR;

(4) organizations that are required or authorized by federal law governing their specific business or activity to maintain assault [pistols] WEAPONS and applicable ammunition and detachable magazines;

(5) the receipt of an assault WEAPON or detachable magazine by inheritance, AND POSSESSION OF THE INHERITED ASSAULT WEAPON OR DETACHABLE MAGAZINE, if the decedent lawfully possessed the assault WEAPON OR DETACHABLE MAGAZINE AND THE PERSON INHERITING THE ASSAULT WEAPON OR DETACHABLE MAGAZINE IS NOT OTHERWISE DISQUALIFIED FROM POSSESSING A REGULATED FIREARM;


There you have it. The big issue for minors and those under the age of 21 for specific guns is whether they are prohibited from owning the firearm(s) as a result of their age.

 

[fabsroman]

I am an estate planning and estate administration lawyer. Intestate succession is basically a will that the State creates for you. In some circumstances a will is unnecessary if you are comfortable with the intestate succession laws (bearing in mind the laws could change in the future). However, to receive firearms, an eligible person will be allowed to inherit them by either will or intestate succession.

Google "Maryland Intestate Will" and you'll see some good examples of how intestate succession works in Maryland (it's different in each state). Also, you may want to read up on familial and spousal shares (if you disinherit certain people they may still be entitled to assets).

You can't put non-NFA firearms into an NFA trust. Federal law allows NFA items to be held by corporations or trusts. There is no similar provision for non-NFA items. That being said, firearms, even under SB-281, are NOT treated differently than any other asset for estate administration/probate (bearing in mind the heir or legatee needs to be eligible to receive the firearm).

However, wills are only a fraction of an estate plan. The more important documents are powers of attorney because they are in effect while you are alive (wills only take effect once you die). Trusts are another estate planning vehicle (you still need a will even if you have a trust) that have a proper time and place for use.

You left out an Advanced Health Care Directive to appoint somebody to make health care decisions on their behalf when they are incapacitated and unable to make those decisions for themselves.

Most people do not think about this stuff until death is imminent, or they do not think about it at all. I had to deal with a matter in DC where a wife passed away and the husband thought he would get everything free and clear. He was shocked when he found out that the kids were entitled to a portion of the estate. To make matters worse, the wife was the sole owner of the house with no right of survivorship in the husband. It was a mess.

 

[fabsroman]

You are exactly right: "the decedent in effect owned nothing"

If an individual is required to have title to non-NFA firearms, the trust cannot hold title to the guns.

I'm not saying that some things have never slipped through an Accounting or Inventory of an estate in the history of mankind, but legally they should go through probate (at least for "regulated"). If its not "regulated," who knows it even exists?

Yep. My dad has a bunch of non-regulated firearms and they are all coming to me at some point. My siblings already know all about this.

 

[Not_an_outlaw]

That's a tough one I haven't given much thought to.
My wife wouldn't want them. (in time, maybe)
Both of my brothers live in NY and don't like firearms (yet, I'm working on that).
I don't have any children or have plans to make any.
No nieces/nephews.

Can I be your friend?