Are you interested in legally having access to Title II firearms and also being able to legally provide access to such Title II firearms to other trusted family members (or even trusted friends)? If so, an “NFA Gun Trust” may be the right choice for you.
“Title II firearms” include, among others, short barreled rifles and shotguns, suppressors and silencers, as well as other less commonly owned devices.1
Under the National Firearms Act (“NFA”), a “person” cannot legally possess a Title II firearm unless such “person” is the registered owner of such firearm.2 Any illegal possession of a Title II firearm is punishable by up to 10 years in prison and a $10,000.00 fine3, with the firearm being subject to forfeiture.4
Fortunately, for purposes of the NFA, a “person” is not only an individual, but can also be a trust (as well as a partnership, an association, a company, or a corporation).5
Although recent regulations promulgated by the Bureau of Alcohol, Tobacco, Firearms and Explosives under ATF Regulation 41F (which became effective July 13, 2016)6 increased the burdens of registering ownership of Title II firearms to trusts, the most burdensome being required background checks for all “responsible persons” (who are those with rights to make major decisions or possess Title II firearms), there are still various advantages to establishing NFA Gun Trusts.
One primary advantage of such a trust is that more than one individual (so long as these individuals are not generally prohibited by applicable federal and state law from possessing and/or accessing firearms) can lawfully possess and/or access the Type II firearms that are registered to the trust.
Another important advantage of establishing an NFA Gun Trust is that the trust, if drafted properly, can allow for the Type II firearms registered in the name of the trust to continue to be owned by the trust even after the original grantor(s) and trustee(s) of the trust pass away. The use and control of these Type II firearms, as well as the beneficiaries who will ultimately be distributed these firearms, can thus be established and continue to be governed by the NFA Gun Trust in perpetuity. Should it ever become illegal to transfer Type II firearms due to a change in the legal landscape, the true benefit of this advantage of “continuity” will be realized.
Given the serious risk of criminal prosecution for illegal possession of Type II firearms, it is imperative that NFA Gun Trusts are drafted properly with adequate thought, deliberation, and consideration. To properly implement an NFA Gun Trust, you should work with your attorney to understand and properly achieve your intended result. For example, some considerations which you may wish to address include: (i) the individuals who will be given access to the Type II firearms to be owned by the trust, (ii) whether there are risks associated with providing such individuals access, (iii) whether you as the creator of the trust will have more rights to the trust firearms (such as the right to sell) than the other individuals who you may wish to only have access to the trust firearms, and (iv) who are the ultimate beneficiaries to be distributed the firearms once the trust terminates.
To prevent taking action that would violate applicable law, adequate instructions, warnings, and specific requirements and procedures on how to legally handle, possess and transfer Type II firearms should also be properly noted in the trust documentation, for the benefit of both the initial trustee(s) and subsequent successor trustee(s) of the trust, as well as the beneficiaries of the trust. Of course, as an NFA Gun Trust is also an estate planning tool and can be used to own any firearm, whether Type II or not, adequate consideration also needs to be given to your overall estate planning needs. NFA Gun Trusts can be a valuable tool if you are interested in Type II firearms. As the risks of using an improperly or inadequately drafted NFA Gun Trust are potentially severe (including criminal prosecution), appropriate consideration should be given by you and your attorney in discussing, drafting and implementing your NFA Gun Trust.