1. Firearms Trust, Gun Trusts and NFA Weapons Trusts
  2. Avoiding Extortionate “Preferential Transfer” Claims following Commercial Bankruptcies
  3. Problems Passing an “Instant Check”
  4. Firearms Law and Inheritance
  5. Financing your Litigation
  6. Fairness in Marcellus Shale Dealings

Firearms Law and Inheritance

There is probably no consumer product as heavily regulated as firearms.  State and federal statutes govern every conceivable aspect of the purchase and sale of anything that shoots.  There are so many laws and regulations governing the ownership, possession, transportation and transfer of firearms that virtually nobody, including most lawyers, can say they know them all.  As a result, well-intentioned people often violate the law without even knowing it.

Transfer of Guns as Part of a Decedent’s Estate

One area where even experienced attorneys sometimes foul up is the transfer of firearms as part of a decedent’s estate. Some of the restrictions and requirements established under the Federal firearms laws do not apply to transfers of firearms by interstate succession, but most provisions of will apply. Transfers to anyone other than a legatee will require full compliance with federal and state laws which require each firearm to be transferred on the books of a licensed dealer, filling out a federal form 4473 and, in some cases, a Pennsylvania “record of sale” form, and a background check through the federal National Instant Check System (“NICS”) or Pennsylvania Instant Check System (“PICS”). These rules apply to both hand guns and long guns, and can complicate the liquidation of an estate.

Trasfer on the books of a licensed dealer can be difficult to arrange. Many licensed dealers do not wish to become involved in the transfer of a firearm they did not sell as part of their business. Those that do will charge a premium for the transfer service. Many dealers will offer to “buy out” an entire collection, but will offer a fraction of the value of the collection.

Prohibited Persons: Individuals who are prohibited from possessing firearms or ammunition

Both Federal and Pennsylvania laws specify very broad categories of individuals who are prohibited from possessing firearms or ammunition. Such people are referred to as “prohibited persons.” Some legatees will turn out to be “prohibited persons,” and it is a crime for the Administrator to deliver a firearm to such a person. Even if criminal liability is not an issue, it can be very time-consuming to try and recover a firearm from a prohibited person, and explain to a client how such an error was made.

Prohibited persons include many people one would not necessarily think of as being under any sort of legal disability. Examples of those who are deemed by law to be “prohibited persons” include:

  • Anyone under the age of 18 for long guns, or under the age of 21 for hand guns.
  • Any person who is an unlawful user of, or addicted to, any controlled substance.
  • Any person who has been admitted to the United States under a nonimmigrant visa.
  • A person who has ever been adjudicated as an incompetent, or has ever been committed to any mental institution for inpatient care and treatment. The commitment could have occurred briefly any number of years ago; the legal disability has no time limit.
  • A person who is the subject of an active protection from abuse order, if provided for the relinquishment of firearms during the period of time the order is in effect.
  • Any person who has ever been discharged from the Armed Forces under dishonorable conditions, for any reason.
  • Any person who, having been a citizen of the United States, has renounced his citizenship.
  • Any person who has ever been convicted of a misdemeanor crime of domestic violence (simple assault on a spouse).

A particularly troubling source of legal disability is the conviction of a crime punishable by imprisonment for a term exceeding one year. The disability will attach to an individual convicted of such a crime, regardless how old the conviction, and without regard to the sentence actually imposed or served. Examples would be one convicted in North Dakota in 1978 of defiant trespass, or one who while in college, in 1968, pled guilty to possession of marijuana.

To complicate matters further, the phrase “one year” does not necessarily mean “one year.” Due to some definitional magic in the statutes, one may be convicted of a crime punishable by more than one year, but not suffer the legal disability provided for in the law if their conviction was under state law, was classified at the time of the conviction as a misdemeanor (but only if that state calls it a “misdemeanor”), and the crime was not one of a long list of crimes which calls for permanent disability regardless of potential sentence. Under these particular circumstances, “more than one year” can actually mean “more than two years.”

There are also many crimes defined under federal and state laws which are disqualifying regardless of the potential sentence. An example would be a “misdemeanor crime of domestic violence.” If any of these particular crimes are involved, the disability will attach regardless of when or where the conviction occurred. Examples under Pennsylvania law include a conviction of any drug offense, being convicted of D.U.I. three times within a five year period, or for impersonating a law enforcement officer.

The exemption for interstate transportation of firearms acquired by bequest does not apply if the recipient of the firearm is a “disqualified person.” There is, therefore, the prospect of liability attaching to counsel or an estate administrator for turning a firearm over to a legatee who is a disqualified person. This suggests at least some rudimentary inquiry by the representatives of an estate is prudent before sending guns off to a person they do not know.

To complicate things further, a legatee might be erroneously identified as a “prohibited person” by one of the several government agencies involved in the process of performing background checks. Errors arise from a variety of sources, such as two identical names, errors in spelling, recording social security numbers or in very old court records. Such errors are distressingly common.

Further, if a record is incomplete, authorities in Pennsylvania will presume the worst, and leave it to the individual to prove otherwise. For example, if a teenager was convicted of “theft” of the opposing football team’s mascot in 1972, the conviction may simply have been recorded as “theft,” or with a section number in a penal code for theft, without specifying the nature or degree of the crime. Although the “theft” in question may actually have been a summary offense punishable by a maximum $50 fine, some forms of theft included under the same section would be punishable by more than one year in prison. If the record is ambiguous, Pennsylvania authorities will disqualify such a person from possessing a firearm or ammunition until the intended transferee can prove the “theft” was not actually a disqualifying offense.

Indeed, it is often difficult for one who does not have more than a passing familiarity with firearms to even know they are dealing with a “firearm,” as the term is defined in federal and state statutes. For example, the part of an automatic weapon which is given a serial number and registered under the National Firearms Act is often the sear, which is an internal part that looks nothing like a “gun.” Under federal law, that one part is the “firearm.” A sear registered before 1968 is legal to transfer, and can be worth tens of thousands of dollars to collectors. To one not familiar with Class III weapons, a registered sear looks like an odd-shaped piece of metal, and could easily be thrown away with the rest of the small parts lying around the work bench following the owner’s demise. (If it has a serial number on it, don’t throw it away!) This is another area in which unscrupulous firearms dealers will frequently make quite a bargain for themselves.

Problems Transporting Firearms

There are also special problems pertaining to transportation of firearms.  Pennsylvania law makes it a crime to transport firearms in vehicles other than in specified ways.  Federal law and internal policies of shippers will also restrict shipment or receipt to or from individuals in other states.  Although federal law generally precludes one who does not hold a federal firearms license from sending or receiving firearms from out-of-state, there are some special rules for receiving firearms from out-of-state by bequest.

Surviving family members will sometimes divide up and hand out the gun collection before probate, not realizing they are committing one or more state or federal crimes in the process.  This can present thorny ethical problems for legal counsel when the unlawful transfer of the firearms eventually comes to his attention, and there are still tax returns and declarations to make.

At Greystone Legal Associates, we have dealt with such issues, and can assist counsel with the lawful and efficient disposition of firearms or ammunition held in an estate.  If you have an estate that involves firearms or ammunition, give us a call.  We will support you with the expertise necessary to avoid costly and embarrassing errors.

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