In North Carolina, a person may give firearms to his or her beneficiaries after their death by proper use of a will or a trust.
The people who the giver selects in advance to help settle his estate are called fiduciaries, and are either named “executors” (will) or “trustees” (trust or will.) Because executors or trustees perform the actual hands on, person-to-person transfer of firearms that are directed by the will or trust, executors and trustees need to understand federal firearms transfer laws, together with North Carolina firearms transfer statutes.
In North Carolina, the transfer rules are fairly reasonable, with very little paperwork, for the transfer of “regular firearms” (typical standard-length manual or semi-automatic rifles, shotguns, or handguns) through wills or trusts. But even without much paperwork, executors and trustees must remain alert–mishandling the transfer could result in a federal or state felony charge for transferring the firearm to an inappropriate recipient. Note that this article does not address NFA firearms or devices, such as suppressors, which require much stricter transfer procedures.
To avoid violating federal or state laws, executors and trustees must be careful not to transfer any firearm to a “prohibited person” under federal and state law, or to transfer a pistol to anyone under age 18, or to transfer a pistol to anyone without a proper permit.
The Federal Firearms Statute
Under the Federal Firearms Statute, originally passed as the Gun Control Act of 1968, it is the executor’s or trustee’s responsibility not to transfer firearms to the following nine types of “prohibited persons”:
- A person convicted of a crime punishable by imprisonment exceeding one year;
- A person who is a fugitive from justice;
- A person who unlawfully uses or is addicted to a controlled substance;
- A person who has been adjudicated as a mental defective or who has been admitted to a mental institution;
- An unlawful alien or a person who has been admitted to the U.S. under a nonimmigrant visa;
- A person who has been dishonorably discharged from the armed forces;
- A person who is a U.S. citizen but renounces his citizenship;
- A person subject to a court order that restrains him from harassing,
- stalking, or threatening an intimate partner;
- A person convicted in any court of a misdemeanor crime of domestic violence. 18 U.S.C. 922 (d)
The NC Felony Firearms Act
NC executors and trustees should be aware of the NC Felony Firearms Act, which prohibits firearms possession by 1) felons or certain other convicted criminals; 2) persons acquitted of certain crimes by reason of insanity; or 3) persons ruled by a court as mentally incapable of proceeding with certain criminal court procedures. N.C. Gen. Stat. § 14-415.1
An executor or trustee who transfers a firearm to any such person could be charged, in a criminal proceeding, with felony conspiracy, or for aiding or abetting the actor listed above.
Transfer of handguns is generally more restricted under both federal and state law.
In North Carolina, it is illegal for an executor or trustee to transfer an inherited handgun to the beneficiary unless the beneficiary 1) provides a proper NC pistol purchase permit issued by the Sheriff of the county where the beneficiary resides; or 2) provides a valid NC-issued concealed carry permit. N.C. Gen. Stat. § 14-402(a)
Under federal law, an unlicensed person, such as an executor or trustee, may not knowingly transfer a handgun (or handgun ammunition) to any person under the age of 18. 18 U.S.C. § 922(x)(1)
North Carolina law also provides that it is a felony for a person such as an executor or trustee to transfer a handgun to any person under 18 years of age. N.C. Gen. Stat. § 14-315
North Carolina law does, however, provide direction describing how executors and trustees can legally and properly transfer handguns on behalf of minors:
1) An executor or trustee may transfer a handgun on behalf of a minor beneficiary to a proper adult custodian under the North Carolina Uniform Transfer to Minors Act (NC UTMA); N.C. Gen. Stat. § 33A; also see N.C. Gen. Stat. § 14-269.7 and N.C. Gen. Stat. § 14-316
2) An executor may distribute a handgun on behalf of a minor beneficiary to his or her proper parent or guardian, as detailed in N.C. Gen. Stat. § 28A22-7
Federal law currently does not provide age limitations or guidelines for the transfer of long guns (standard length rifles or shotguns.)
North Carolina law prohibits anyone from permitting a child under the age of 12 to possess a firearm, unless the person has the permission of the child’s parent or guardian and the child is under the supervision of an adult. N.C. Gen. Stat. § 14-316
Recommendation for Transferring Long Guns on Behalf of Minor Beneficiaries
North Carolina does clearly spell out (see above) rules for properly transferring a handgun on behalf of a minor beneficiary to an adult custodian, parent, or guardian. Because, like handguns, long guns are also hazardous if improperly used, for liability reasons I recommend that executors and trustees, on behalf of minor beneficiaries, only transfer long guns to proper adult custodians, parents, or guardians under North Carolina law. Custodians, parents, or guardians are typically in a much better position to make wise decisions affecting minors under their care than more removed estate executors or trustees.
Out of State Transfers
Sometimes, will or trust beneficiaries may live outside of North Carolina.
Federal firearms law prohibits the interstate shipping of firearms door-to-door from one unlicensed person to another. 18 U.S.C. 922(a)(3)
To comply with Federal law, the executor or trustee must ship to a federally-licensed firearms dealer (FFL) in the beneficiary’s state of residence. 18 U.S.C. 922
The state and local gun laws where the beneficiary lives are very important. In some cases, proper transfer requires using an in-state FFL to transfer the firearm(s) to the other FFL located in the beneficiary’s state of residence. Under U.S. Postal regulations, handguns may be sent via the Postal Service only from one FFL to anther FFL.
Executors and trustees should make themselves aware of any local requirements regarding firearms transfers. For example, during probate proceedings, the Forsyth County, NC Clerk of Superior Court’s Estates Division requires a witnessed receipt indicating that the beneficiary received the firearm that was transferred.
With respect to firearms, because the potential penalties placed on executors and trustees by the federal and North Carolina governments can be so serious, and because executors and trustees could face civil liability for improper transfers, lawyers who draft wills and trusts should, in the document language, grant executors and beneficiaries the authority, discretion, and flexibility to use their best judgment when making firearms transfers to beneficiaries. Because the original donor who gifted the firearm has died, the executor and trustee must now be allowed to be the eyes and ears of the deceased donor, making responsible decisions on his or her behalf in real time.
An executor or trustee who feels uneasy or uncomfortable about a transfer should not be forced to make that transfer. The lawyer should provide reasonable options in the document language, such as allowing the executor or trustee to sell the subject firearm to a FFL with transfer of the proceeds to the beneficiary. Where an executor or trustee believes that a particular transfer is inappropriate, regardless of whether it is “legal” or not, the executor or trustee must be allowed to make a responsible decision.