Reminder: Bequeathment trumps transfer laws!

[jtnf]

I have made the point before, after helping a family hash through the disposition of a small collection when the Dad died... and I'd like to repeat myself if all y'all will humor me.

US Federal Law is very explicit... Bequeathed firearms are transferrable from the estate of the deceased to the named recipient, directly, after Probate is completed in the home state of the deceased.
No FFL to FFL transaction required, even if interstate, even in the case of handguns.
I believe the only concern is that any rifles be made AWB compliant, in the five States and Commonwealth(s?) that cling to the 1994 definition.

Some details, as I understand them (IANAL.)
Guns must be explicitly called out for transfer to named individuals, and should be called out on paper.
The guns do not need to be explicitly identified but the person receiving them does ("All my hand guns go to little Jimmy, my Sisters' kid, and all my shotguns go to my neice Sally" is Good Enough for Gov't Work.)
The Executor or Executrix has 180 days after the probation of the estate to distribute firearms.



Why is this topic on the tip of my brain, and why do I risk repeating myself? Because I am now the proud owner of not one, but TWO Glock handguns that I cannot transfer to myself, as I am a Subject of the Commonwealth of Massachusetts and the Glocks are out of state. One is a gift, and the other an unofficial bequeathment.

So... Friends, Gun Owners, Countrymen, lend me your ears. Get paper and maintain it! Or (like my friends described in the first paragraph above) your Heirs may be LUCKY to get 1/2 of low auction value OR the intended recipient may not be able to take ownership at all.

Something to think about on this fine Friday summer evening.

 

[milktree]

In your not-a-lawyer opinion, is "My guns get split between Timmy, Sally, Jane, and Rita, as the executor sees fit" sufficient?

 

[EJFudd]

It's an interesting topic... exactly how a gun owner getting on in years needs to focus hard (and probably employ a firearms-savvy lawyer) to get the wording "just right" so that his/her wishes can and will be followed without any big hassle, big expense, unnecessary delays and/or potential legal entanglements. Shouldn't be that tough, really, but we live in a complicated world. A lot of old folks simply aren't aware of the need for that level of precision and detail in their wills when it comes to who should get their firearms. In many cases, their will and elder law lawyers simply aren't up on firearms law or aren't made aware of such intended bequeathment details simply because the old folks in question have already made it crystal clear within the family of who should get what... only rarely thinking that that sort of thing needs to be committed to paper and, in fact, within the will itself.

 

[OfficerObie59]

Guns must be explicitly called out for transfer to named individuals

I don't think that's quite true.

Generally, federal law permits a person to receive a firearm from a citizen of another state without going through an FFL transfer, provided:
1) it was received via a bequeath or intestate succession (no will);
2) the receiving party is not prohibited from receiving the gun in his home state;
3) the receiving party is not a federal PP.

See 18 USC 922(a)(3)(A), the party giving the firearm, and 922(a)(5)(A), the party receiving the firearm.

Why is this topic on the tip of my brain, and why do I risk repeating myself? Because I am now the proud owner of not one, but TWO Glock handguns that I cannot transfer to myself, as I am a Subject of the Commonwealth of Massachusetts and the Glocks are out of state. One is a gift, and the other an unofficial bequeathment.

Curious: How do you have an unofficial bequeathment? It's either in the will or it's not.

Remember that implicit in a "bequeath" is the fact that someone gifted it to you in their will, either specifically ("I will to jtnf my Glock handgun/all my guns and firearms") or you got it as part of the residuary (i.e., whatever was left over once all the property and money bequeathed was dolled out).

The Executor or Executrix has 180 days after the probation of the estate to distribute firearms.

Also note that if you're referring to the "180 days" under MA law, that generally refers to the grace period a person has to obtain an FID or LTC when they get a gun as part of an estate. The issue is that no one really seems to know what that 180 day period commences, as the law seems to indicate it starts upon death--and good luck having an estate wrapped up in 6 months.

 

[jtnf]

Thanks for the feedback - I had hoped this topic would inspire discussion.

"Unofficial" means, very simply, a friend died intestate (no will) and his guns were transferred to a mutual friend. The mutual friend now has some duplication in his collection, therefor the widow and the mutual friend agreed that I should get the dupe.

The 180 days is my rememberies from conversations mainly with LenS - I honestly don't know whether it's a federal mandate.

The reasoning for keeping language vague in a will or other binding bequeathment document, obviously, is that collections change over time. I'd hate to have to pay an attorney for re-writing a will ever time I bought or sold a gun.


Interstate Succession means a direct heir (child or spouse,) so the transfer can happen in the absence of a will, I assume?

 

[Rob Boudrie]

Interstate Succession means a direct heir (child or spouse,) so the transfer can happen in the absence of a will, I assume?

The term is "intestate succession", not "interstate succession", and it refers to the transfer of property to heirs under law when no will exists.

Intestate succession does not mean dying without one's gonads.

 

[OfficerObie59]

"Unofficial" means, very simply, a friend died intestate (no will) and his guns were transferred to a mutual friend. The mutual friend now has some duplication in his collection, therefor the widow and the mutual friend agreed that I should get the dupe.

Be careful. You were neither bequeathed those guns in a will, nor received them via intestate sucession.

 

[OfficerObie59]

The reasoning for keeping language vague in a will or other binding bequeathment document, obviously, is that collections change over time. I'd hate to have to pay an attorney for re-writing a will ever time I bought or sold a gun.

You can generally do that with personal property and it's not an issue. When it comes to buying and selling land, you really should draw up a new will.

Legally, ou can also write a will to bequeath the contents of a container to someone, and use the container to move personal, tangible property (no stocks, bonds, deeds, etc.) in and out of it to control the devise--a gun safe comes to mind. It's certainly not the best practice though.

Drawing up a will really isn't a big deal. Granted, MA makes you do will old-school with 2 witnesses, and all that stuff, but it's a little bit of estate planning that will save your family and friends a shitload of time and money.

 

[milktree]

If an individual is not named specifically in a will, but is ... referenced, is that sufficient?

I realize that's a wishy-washy hand-wavy question, so I'll give an example:

Say Billy-Bob dies and his will says, "my gun collection shall be distributed among my many friends as the executor sees fit."

Would that allow the executor to give the guns to anyone as he sees fit as though each person were specifically named?

 

[OfficerObie59]

If an individual is not named specifically in a will, but is ... referenced, is that sufficient?

I realize that's a wishy-washy hand-wavy question, so I'll give an example:

Say Billy-Bob dies and his will says, "my gun collection shall be distributed among my many friends as the executor sees fit."

Would that allow the executor to give the guns to anyone as he sees fit as though each person were specifically named?

Remember, IANAL, but that's called a "Testimentary Power of Appointment" and is generally legal to do. It breaks down into categories of "special" and "general". A general power of appointment gives your executor broad discretion to give the property to whomever he wants, including himself. A special power of appointment would allow the executor to give out the property to a limited, definable class of people (e.g., "my gun collection shall be distributed among my many nieces and nephews as the executor sees fit").

Here, your devise is likely to be considered a general power because the class is so undefined--who are your friends? That could be almost anyone.

Just bear in mind that gives a crap load of power to your executor. I suspect most attorneys would advise against it.

 

[jtnf]

Be careful. You were neither bequeathed those guns in a will, nor received them via intestate sucession.

Oh, I know. That's why I only visit that one when I'm on vacation!

I believe both guns are gen 3 or 4... Here's hoping that Martha will cave rather than enter her next campaign carrying the Comm2A suit.

 

[EJFudd]

Here is a question I've wondered about for the legal Gurus:

The GOAL page on inheritance reads as follows: "If the inheritor is out of state, then have the executor/executrix ship the guns to a licensed dealer in that state OR have the inheritor pick them up directly." Obviously, the latter is a much cheaper, simpler way to go if practical.

Assuming the GOAL page is correct, does this last part (in BOLD) still apply if an unlicensed executor/executrix has temporarily turned the guns in question over to a licensed relative or other person for temporary safe keeping? Second part of the question: Would it matter if the temporary turnover to the licensed person for safe keeping occurred before or after 180 days?

A broader question might be: Can a licensed person help in any way to facilitate the inheritor "picking them up directly"? Or should the term "pick them up directly" be taken literally (i.e., passed from the hands of the executor/executrix directly into the hands of the out-of-state inheritor with no intermediary)?

Anyone want to tackle that?

 

[Len-2A Training]

Also note that if you're referring to the "180 days" under MA law, that generally refers to the grace period a person has to obtain an FID or LTC when they get a gun as part of an estate. The issue is that no one really seems to know what that 180 day period commences, as the law seems to indicate it starts upon death--and good luck having an estate wrapped up in 6 months.

Jason Guida (Atty and former FRB Director) explained to me that the executor/executrix has 180 days AFTER SETTLEMENT OF THE ESTATE to get licensed IF that person is KEEPING the guns. I never asked about transferring to ANOTHER unlicensed party and whether they had 180 day grace period. Interesting question, but I'm unsure if that immunity extends to another level and wouldn't want to be the test case. There are MANY TOO MANY LEOs/Chiefs out there that think that an unlicensed executor/executrix can NOT possess them legally in order to dispose of them in accordance with the wishes of the deceased as it is now.

Drawing up a will really isn't a big deal. Granted, MA makes you do will old-school with 2 witnesses, and all that stuff, but it's a little bit of estate planning that will save your family and friends a shitload of time and money.

Last year when I taught my MA Gun Law Seminar at the Westford Sportsmens Club a participant brought up an interesting point and STRONGLY suggested using a DIFFERENT written instrument (NOT a Will) to dispose of the guns/ammo/etc. I now teach this in my seminar. She was somehow involved in a case where the probate judge ruled that they had to get professional appraisals of all the guns/equipment (cost $$) and the result of this pushed the entire estate over $1Million, resulting in a horrendous inheritance tax situation. A recent discussion with a retired financial planner (also a student of mine) put a fine point on this. MA has a $1Million exemption to inheritance tax, however if you go $1 DOLLAR over this, ALL of the estate is taxed at 16% (all his figures)!!!!!

Now a $1Million may sound like a lot to a lot of you reading this, but many of us bought houses years ago that are now worth $400K++, if by the time you die you have a 401K, IRA, 403B, other stock/mutual fund/insurance/annuity/etc. investments, you may well trip over that line of $1Million and your estate having to pay MA $160K (16% of $1Million) minimum may well defeat what your wishes are for them to have a significant part of your estate.

The woman in my seminar suggested a separate written document specifying how guns/ammo/gear gets distributed on death and thus it isn't probated. Do as you wish, IANAL and I'm just passing the info along. My retired financial planner friend has his house on the market and is moving to a state where there are no inheritance taxes!! He's 70 yrs old and this is part of his final financial plan!!

Here is a question I've wondered about for the legal Gurus:

The GOAL page on inheritance reads as follows: "If the inheritor is out of state, then have the executor/executrix ship the guns to a licensed dealer in that state OR have the inheritor pick them up directly." Obviously, the latter is a much cheaper, simpler way to go if practical.

Assuming the GOAL page is correct, does this last part (in BOLD) still apply if an unlicensed executor/executrix has temporarily turned the guns in question over to a licensed relative or other person for temporary safe keeping? Second part of the question: Would it matter if the temporary turnover to the licensed person for safe keeping occurred before or after 180 days?

A broader question might be: Can a licensed person help in any way to facilitate the inheritor "picking them up directly"? Or should the term "pick them up directly" be taken literally (i.e., passed from the hands of the executor/executrix directly into the hands of the out-of-state inheritor with no intermediary)?

Anyone want to tackle that?

GOAL's info is BAD . . . NO FFL should EVER be involved in inheritance, period. There is a lot of info on GOAL's website that is wrong legally and I recently heard from another instructor (a MA gun law knowledgeable person) that he has also tried to correct them to no avail. I haven't actively tried (and won't) but spent some time on the phone with the one GOAL BOD member that I will deal with explaining a number of these errors. I no longer look there for any legal advice and suggest that others do the same!!

The proper answers to your question have been covered in the Sticky on inheritance, if you are interested, you should invest the time to read it there. Part of your question is really "can I loan a gun to another person who doesn't own it for safe-keeping" and that has been answered many times as well (including yesterday in another thread).

 

[jtnf]

Thanks for weighing in Len - My own situation notwithstanding, I guess I just want to draw attention to the perils of not planning for the inheritance. I didn't even think of inheritance tax situation.

 

[OfficerObie59]

Last year when I taught my MA Gun Law Seminar at the Westford Sportsmens Club a participant brought up an interesting point and STRONGLY suggested using a DIFFERENT written instrument (NOT a Will) to dispose of the guns/ammo/etc.

There are indeed other ways to skin the cat of an estate, but a will is by far the most straightforward. Gun trust or joint ownership comes to mind, but those can have their own perils, too.

I say explore them if you're getting a whole estate planning plan in place, but if you're one of those people without anything, it's better to have a will than to die intestate and leave it to state law to decide who gets your stuff.

 

[IPSC_DRL]

There are indeed other ways to skin the cat of an estate, but a will is by far the most straightforward. Gun trust or joint ownership comes to mind, but those can have their own perils, too.

I say explore them if you're getting a whole estate planning plan in place, but if you're one of those people without anything, it's better to have a will than to die intestate and leave it to state law to decide who gets your stuff.

QFT.

Everyone should have at least a testamentary (simple) Will. It does not have to expensive or complicated if you don't have a lot of "moving parts" in your financial life. The last thing you want is to have the courts decide what is best for you without any guidance from you.

A good estate plan should always include a Will, Healthcare Proxy, and a durable power of attorney.

 

[EJFudd]

The proper answers to your question have been covered in the Sticky on inheritance, if you are interested, you should invest the time to read it there.

I've read the inheritance sticky multiple times and I just finished reading it again after your post. It does not fully address my question. Perhaps it was covered in a different inheritance thread or maybe I am not putting two and two together to logically make four. Or maybe, as suggested in another thread, I just need new reading glasses.

Part of your question is really "can I loan a gun to another person who doesn't own it for safe-keeping" and that has been answered many times as well (including yesterday in another thread).

And I know the answer to that one like I know the back of my hand. But it still doesn't address the legality of having a licensed relative or friend help the unlicensed executor/executrix by: a) temporarily holding/storing the guns, quite possibly well beyond the 180-day window and, b) eventually acting as an intermediary/facilitator/transporter/whatever between the executor/executrix and the out-of-state inheritor.

I'm guessing that in the real world, delays and getting help like this happen a lot. I'm just asking for a simple yes or no answer whether it is by-the-book legal or not.

 

[EJFudd]

Last year when I taught my MA Gun Law Seminar at the Westford Sportsmens Club a participant brought up an interesting point and STRONGLY suggested using a DIFFERENT written instrument (NOT a Will) to dispose of the guns/ammo/etc. I now teach this in my seminar.

{snip!}

The woman in my seminar suggested a separate written document specifying how guns/ammo/gear gets distributed on death and thus it isn't probated. Do as you wish, IANAL and I'm just passing the info along.

The separate (inheritance instructions) document makes a ton of sense if it is legal. I see in the sticky where you raised the possibility that verbal distribution instructions (pre-death, obviously!) might also be legal for purposes of avoiding the "lists" issues and FFL transfer fees via the inheritance rules provided the verbal instructions were clear, understood by all parties and not disputed, etc.

Do you still feel that is a viable option?

 

[OfficerObie59]

The separate (inheritance instructions) document makes a ton of sense if it is legal. I see in the sticky where you raised the possibility that verbal distribution instructions (pre-death, obviously!) might also be legal for purposes of avoiding the "lists" issues and FFL transfer fees via the inheritance rules provided the verbal instructions were clear, understood by all parties and not disputed, etc.

Do you still feel that is a viable option?

Verbal testimentary instructions are worth about as much as the paper they're printed on.

 

[EJFudd]

Verbal testamentary instructions are worth about as much as the paper they're printed on.

I'll take that as a big NO!

 

[Len-2A Training]

I've read the inheritance sticky multiple times and I just finished reading it again after your post. It does not fully address my question. Perhaps it was covered in a different inheritance thread or maybe I am not putting two and two together to logically make four. Or maybe, as suggested in another thread, I just need new reading glasses.


And I know the answer to that one like I know the back of my hand. But it still doesn't address the legality of having a licensed relative or friend help the unlicensed executor/executrix by: a) temporarily holding/storing the guns, quite possibly well beyond the 180-day window and, b) eventually acting as an intermediary/facilitator/transporter/whatever between the executor/executrix and the out-of-state inheritor.

I'm guessing that in the real world, delays and getting help like this happen a lot. I'm just asking for a simple yes or no answer whether it is by-the-book legal or not.

180 days is irrelevant to your question. Any licensed party can hold guns for another (whether they are licensed or not). Method of getting the guns to the named party should not be an issue as long as nobody uses the USPO for handguns. FFLs should NOT be part of any equation here. Unlicensed executor/executrix is PERFECTLY LEGAL to hold the guns for distribution AND to distribute them (including shipping them) to the named person to inherit them.

The separate (inheritance instructions) document makes a ton of sense if it is legal. I see in the sticky where you raised the possibility that verbal distribution instructions (pre-death, obviously!) might also be legal for purposes of avoiding the "lists" issues and FFL transfer fees via the inheritance rules provided the verbal instructions were clear, understood by all parties and not disputed, etc.

Do you still feel that is a viable option?

Obie stole my response!

Verbal will ONLY work when there are unbiased witnesses (plural) and NOBODY contests it. When goods/money is involved this is very likely to NOT happen per plan so it is a very bad idea.

I'll take that as a big NO!

A written letter witnessed and notarized would be best. Otherwise things can be caught up in the courts for years and years.


As for the inheritance tax issue . . . I was unaware until very recently when said friend filled my ears with WHY he was selling out and abandoning MA!

 

[EJFudd]

180 days is irrelevant to your question. Any licensed party can hold guns for another (whether they are licensed or not). Method of getting the guns to the named party should not be an issue as long as nobody uses the USPO for handguns. FFLs should NOT be part of any equation here. Unlicensed executor/executrix is PERFECTLY LEGAL to hold the guns for distribution AND to distribute them (including shipping them) to the named person to inherit them.

I will take that as a "yes" to my question about the legality of helping an unlicensed executor/executrix fulfill his/her duties by taking possession and ultimately helping deliver the inherited guns to the out-of-state inheritor.