Who Can And Can’t Inherit Your Guns?By Jim Gianelli
Like many of us, you’re a sportsman. You hunt, target shoot and over many years have put together a valuable collection of firearms.
There’s that .45 semi-automatic, a couple of deer rifles, a .12-gauge shotgun for squirrel hunting, an elephant gun you got for that Kenyan safari back in the ’80s, the AR-15 you bought long before the state outlawed them, and at least a half-dozen more rifles and pistols.
Now that you’re getting older, you’d like to bequeath your collection to your brother, who’s been a longtime hunting companion, and to your children, who have been firing guns since they were grade-schoolers and are enthusiasts themselves.
So you draw up a will stating which guns go to which relatives and assume that your executor or trustee will deliver them after your death, right?
No topic is more politically polarizing or inspires more passionate debate than government regulation of the transfer of firearms. We’ve all heard the rhetoric: “You’ll have to pry this gun from my cold, dead hands.” “Guns do not kill people; people kill people.” “The only thing that stops a bad man with a gun is a good man with a gun.”
Tragedies like the 2012 Sandy Hook school shootings and other mass attacks in the U.S. have only intensified the debate.
No state, however, has clamped down on firearm transfers harder than California. So restrictive are its regulations, in fact, that some of my clients have considered moving out of state to avoid them.
The issue is especially relevant here in the Central Sierra. Most of our firm’s clients own guns, and planning for their transfer via wills or trusts is a key part of our business. Because of the complexity and importance of complying with transfer laws – and the severe consequences of failing to do so – executors and trustees charged with handling the estates of gun owners must have a firm understanding of California’s regulations.
These regulations vary not only by what weapon is to be inherited, but by who is in line to receive them.
Assault weapons, for instance, are for all practical purposes nontransferable under California law. And if the relative to whom you’d like to bequeath your deer rifle or target pistol happens to be a drug addict or an ex-felon … well, that’s not going to happen either.
First, let’s look at the firearms to be transferred.
Severely restricted firearms
“Severely restricted” is not a term found in California or federal law, but it describes a range of weapons that are heavily regulated by both.
Included are assault weapons (among them, the AK-47 and Uzi) listed in Categories 1 and 2 of California Penal Code Section 30510. Also severely restricted are .50-caliber BMG rifles, as well as machine guns, sawed-off shotguns and other weaponry listed in the National Firearms Act of 1934 – which was passed at the height of the era’s gangland activity.
You can theoretically take possession of such firearms with a Dangerous Weapons Permit issued by the California Department of Justice after proof you have “good cause” and with approval of the local sheriff or chief of police. But in reality, this almost never happens. It is thus clear that California is intent on eliminating severely restricted weapons by making their transfer almost impossible.
So what happens upon the death of a person who owns such severely restricted firearms? The weapons must be either:
- Removed from California
- Sold to a federally licensed firearms dealer
- Turned over to law enforcement
The above, thanks to legislation that went into effect on Jan. 1 of this year, now also applies to magazines holding more than 10 rounds (and larger ones altered to hold only 10 rounds) unless the owner came into their possession before the year 2000. Violators face a $1,000 fine.
So how serious is California about eliminating these weapons?
Transfer of assault weapons or .50 BMG rifles can create felony liability. Mere possession of a severely restricted firearm registered to someone else can lead to a felony or misdemeanor charge.
Yes, executors of wills appear to be protected from prosecution, but the same exemption has not yet been extended to trustees of revocable trusts – which more and more often are being set up to handle estates. This may make it necessary to open a probate and appoint an executor to assure a trustee is protected from criminal possession of severely restricted firearms.
Finally, be aware that “gun trusts” are no longer a refuge for severely restricted weapons. Aimed at circumventing the Dangerous Weapons Permit and sheriff’s approval rules, gun trusts are legal entities or corporations which in some states – starting in Florida in 2006 – have served as repositories for bequeathed weaponry.
The California Legislature has since closed this loophole, and now the person or persons in charge of any gun trust must obtain the required permits and approvals. Gun trusts may still be effective, however, as a way to transfer less restricted guns in California.
Less restricted firearms
The majority of weapons owned and used in California and throughout the nation fall into this category. Included are hunting rifles, shotguns, revolvers and semi-automatic pistols bought for personal or home protection.
But does this mean their transfer is easy? Not at all.
The safest and simplest way to transfer any firearm from one person to another, even in distribution of an estate, is through a Federal Firearms Licensee (FFL) who also has the necessary California licenses to deal in firearms.
Not only do such dealers know firearms, but they can carry out required background checks on intended recipients. I’ll discuss this more in part two, in the next issue of FAN.
Antiques, curios and relics
“Antique” is defined by California and Federal law as firearms and ammunition for those firearms manufactured prior to 1899.
“Curios or relics” are defined as:
- Firearms of “special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons.” Such weapons must be at least 50 years old.
- Weapons certified by the curator of a government-owned museum to be “curios or relics of interest.”
- Any other firearms which derive substantial monetary value from being novel, rare or bizarre, or by association with some historical figure, period or event.
Yes, antiques, curios and relics can legally be transferred without going through an FFL, but before doing so I recommend consulting the Bureau of Alcohol, Tobacco, Firearms and Explosives guide to firearms meeting the legal definitions (online at atf.gov). A qualified FFL should verify a firearm’s classification before transfer.
And since January of 2014, transfer of antiques, curios and relics can’t be made unless the recipient has both a California Certificate of Eligibility and a Federal Curio or Relics license. Even then the firearm must be registered with the California DOJ.
Bottom line: Going through an FFL, exemptions notwithstanding, still is the safest and simplest way to go.
After reading all this, you may wonder about the real risk of noncompliance.
Is law enforcement really hell-bent on arresting offenders of the gun transfer laws? Are they going to kick our doors down, put us into the back of a squad car and drag us to jail in the middle of the night for transferring guns to our family members after a loved one’s death?
Of course not. But what if? What if an illegally transferred gun is used in a crime? What if such a gun is used by a family member or friend to commit suicide? This is, of course, when it gets dicey, and the issue becomes all too real for the person entrusted with a gun’s transfer.
Remember that severely restricted weapons – including automatic assault weapons, sawed-off shotguns and some .50-caliber rifles – are all but impossible to transfer in California.
In this article, I’ll discuss how to bequeath less-restricted firearms, including most rifles, pistols and shotguns, as part of estates or trusts.
For instance, can you leave your vintage lever-action Winchester rifle to Uncle Joe, who served time on a robbery rap back in ’97? Or can your Beretta go to your sister, who means well but can’t seem to shake that meth habit? What about leaving your shotgun to your 13-year-old nephew Bobby, who despite his tender age is a seasoned hunter who knows gun safety rules by heart?
The answers to these questions are no, no and no. Now let’s take a closer look at who can and cannot inherit firearms.
Under California law, you can’t transfer or bequeath long guns (shotguns or rifles) to minors. A minor who possesses such weapons cannot be prosecuted. But anyone who gives, sells, bequeaths or transfers one to someone under 18 – including the executor of a will – can be criminally liable for doing so.
California does not allow minors to have handguns, and they themselves can be prosecuted in juvenile court for possession. There are, however, certain exceptions – such as having the written consent of parents or legal guardians if weapons are for target shooting or hunting.
But if your child finds a loaded firearm in your house, you’ll be the one in trouble: Under state law, those who keep loaded guns at home and accessible to children under 18 can be prosecuted. If a child finds the weapon and “brandishes it publicly or causes injury with it,” penalties can be far more severe.
The no-gun list
For executors or trustees, it is important to know who is prohibited by federal or California law from possessing rifles, pistols or shotguns. The list:
- Anyone convicted of domestic violence, whether misdemeanor or felony, and anyone who is under a restraining order from an intimate partner and is found to present a threat to that person or to that person’s children’s safety.
- Those who unlawfully use or are addicted to narcotics (although the feds consider marijuana a narcotic and California does not). Narcotic use does not include spirits or tobacco, therefore chronic alcoholics unless mentally ill are not prohibited from owning firearms.
- Anyone found by the courts to be mentally defective or who has been committed to a mental institution. Under California law, this includes those deemed by a court to be a danger to others, mentally disordered sex offenders, and those found not guilty of a crime by reason of insanity or found mentally incompetent to stand trial.
It also includes those in custody because they present a danger to themselves or others, individuals undergoing intensive treatment for mental illness, and those placed in a conservatorship because of a grave disability caused by a mental disorder or chronic alcoholism.
- In California, anyone who has violated probation, restraining orders or injunctions by possessing firearms.
This state also has a longer list of misdemeanors – those involving violent or aggressive behavior – that generally result in a 10-year ban on firearm possession.
As executor of a will that bequeaths a number of firearms, how can you determine whether any of the beneficiaries are on the above no-gun list?
The best way is to hire a federal firearms licensee-dealer (most local gun shops are FFLs). In handling the transfer of weapons from the estate to those in line to inherit them, the dealer completes required background checks on all would-be recipients.
The executor or trustee should come to the dealer with the heir and the firearm to make a private-party transfer. The heir completes a required U.S. Bureau of Alcohol, Tobacco and Firearms form (No. 4473), and the dealer fills out a Dealer’s Record of Sale (DROS) with background check information on the firearm and the heir. The firearm is then left with the dealer. The recipient – if he or she clears the state background check – can collect it after 10 working days.
Executors and potential recipients should also be aware of a new California law requiring those living with anyone on the no-gun list to keep all firearms in a gun safe, a locked trunk or other secured container. Weapons must also be locked, disabled with a firearm safety device, or stay on the person of their owner.
If the firearm recipient lives out of state, federal law requires that the transfer be handled by both a California dealer and by an FFL in the beneficiary’s state.
The executor or trustee charged with distribution of weapons from an estate may make no more than five handgun transfers per calendar year (although each transfer can include as many handguns as he or she wishes) to avoid being considered an unlicensed dealer. For rifles, transfers must only be “occasional and without regularity.”
California law exempts certain in-family transfers from the above FFL requirements. Covered are transfers from parent to child or child to parent and grandparent to grandchild or grandchild to grandparent – as long as all involved live in California, all children and grandchildren are 18 or older (21 for handguns) and no more than five such family transfers are made each year.
When weapons are transferred, recipients must first obtain a firearm safety certificate (issued by a licensed dealer after a written test is passed). Also a new state law that took effect this year requires those receiving any firearm (including rifles and shotguns) have general firearm safety certificates.
In family transfers, a recipient may pick up a bequeathed firearm immediately (no waiting period necessary) and take it home. A report of the transfer (Operation of Law or Intrafamilial Firearm Transaction Report), including which family members and firearms are involved, must be delivered to the California Department of Justice within 30 days of the transfer (online, oag.ca.gov/firearms).
Not exempt from the FFL requirement are weapon transfers involving stepparents, siblings, cousins, aunts, uncles or in-laws.
Transfers between spouses or domestic partners likewise must go through dealers, and the receiving spouse or partner must have a safety certificate. A firearm may only have one registered owner, who must go through a background check.
The safety-certificate requirement does not apply to estate executors or administrators in temporary possession of firearms pending distribution. But trustees get no such exemption and must, until the state law is changed, obtain certificates.
If an executor, administrator or trustee transports firearms to a dealer for processing or a recipient takes a weapon home, another set of requirements kicks in:
- He or she must be a U.S. citizen 18 or older who permanently or temporarily lives in California and is legally qualified to possess the firearms being carried.
- Handguns must be unloaded and in a locked container (this does not include the glove compartment but does include the trunk of a car). Shotguns and rifles need not be carried in a locked container but must be concealed, typically in an unlocked carrying case. Ammo must be carried apart from the firearms.
Closing advice to executors
- Locate and identify each firearm in the estate immediately. Keep those weapons in a secure location, preferably a locked safe, until transfers are legally completed.
- Because transfer of severely restricted firearms (assault rifles, sawed-off shotguns, etc.) in California is virtually impossible, arrange for disposal of such weapons by removal from the state, sale to an FFL, destruction or relinquishment to law enforcement.
- If you have any doubts whether a would-be recipient can legally possess the firearm he or she is bequeathed, go through an FFL regardless of other exemptions. For safety and simplicity, this should be the rule rather than the exception.
Before accepting the responsibility of being an executor of a will or trustee of a trust involving the transfer of firearms, know that you must become familiar with all laws relating to the storage, transportation and transfer of guns to beneficiaries. Always err on the side of being conservative and safe. The consequences of not doing so are too extreme.