All sportsmen and sportswomen, who own from one to an entire collection of firearms, should carefully determine the best way to pass down their firearms to the next generation. Using a revocable living trust to pass down the firearms quickly and privately to loved ones instead of a standard will makes the most sense for North Carolina firearms owners.
Regular firearms (standard-length manual or semi-automatic rifles, shotguns, and pistols) have long been passed down to the next generation as a bequest of personal property in “simple will” documents. But unfortunately, passing down firearms using a simple will does not make good sense for many gun owners, for these reasons:
- Public Process. The probate legal process accompanying a will following death, where the deceased person’s property is passed down to beneficiaries, is a public process;
- Because of such public disclosure, thefts of valuables identified in probate (such as firearms) sometimes occur;
- The State Tracks Estate Firearms. NC probate procedures require each individual firearm in an estate to be separately identified and receipted during probate;
- Probate is Expensive. Many assets which go through probate are charged probate fees, and probate is complicated enough that many estates need to hire an attorney to assist them through the probate process;
- Probate is Slow. The probate process may take a year or more, with assets potentially tied up in probate for months;
- Simple Wills Do Not Contain any Firearms Transfer Provisions. Simple wills typically have no provisions insuring that the gun transfer process is done legally–will executors not familiar with the proper gun transfer process may be criminally liable for an improper transfer, with prison terms up to 10 years in length, and thousands of dollars in fines possible;
- The Gun Owner’s Estate May Be Financially Liable For Improper Gun Transfers. If an estate firearm is not transferred properly by an untrained executor, and as a result that firearm causes harm or injury, an aggressive plaintiff’s lawyer may seek to attach estate assets as compensation.
No gun owner would voluntarily wish for his family gun collection to be tied up in probate and publicly disclosed, but that is how the process works in North Carolina. And no gun owner wants his family gun collection publicly disclosed thus subject to theft.
During North Carolina probate, each individual firearm in a deceased gun owner’s collection is required to be separately identified and receipted, with each receipt kept by the county government. Unfortunately, recent history teaches us that our government cannot always be trusted to protect such sensitive gun owner information.
For example, in the weeks following the December 14, 2012 Sandy Hook school shootings, The New York Journal News published an interactive map, made with state government-collected information, displaying the names and addresses of gun permit owners in New York’s Westchester and Rockland counties. This disclosure caused a nationwide furor among gun owners.
Australia’s 1996 gun confiscation program largely relied on government data (such as the data identifying individual guns that North Carolina collects in probate) to identify and collect citizens’ firearms that had recently been outlawed by the Australian government.
REVOCABLE LIVING TRUSTS ALLOW FIREARMS TO BE PASSED DOWN PRIVATELY
Revocable living trusts (RLTs), a common estate planning tool, provide significant benefits to gun owners . When valuables, such as firearms, are transferred to beneficiaries via RLTs, the process is private, not public–in fact, firearms passed down via RLTs do not have to go through probate.
The NFA gun trusts that most gun owners have heard of are actually modified revocable living trusts. But because NFA, Title II firearms (including silencers, short-barreled rifles and shotguns, and automatic weapons) are so strictly regulated, NFA gun trusts are too restrictive for most gun owners who typically do not own a NFA weapon or device.
A properly-designed RLT for the regular firearms owner combines proper gun transfer provisions for the RLT’s trustees while being flexible enough to also hold all of the gun owner’s other types of valuables, financial assets, and real property, keeping all of the gun owner’s various assets out of probate.
In summary, a properly-drafted general revocable living trust (with gun transfer provisions) can provide these benefits to gun owners:
- Guns not inventoried. The owner’s gun collection will not be inventoried by the state;
- Private transfer. The owner’s firearms and valuables are transferred privately;
- No delays. Gun transfer happens without the delays of probate;
- Cost effective–the same trust that holds the owner’s firearms can hold his other valuables, financial assets, and real property;
- Improper firearms transfer prohibited. Trust provisions prohibit improper firearms transfer, including transfer to prohibited persons.