One of the protections that many people are seeking is that which is provided by setting up a legally valid “Firearms Trust.” Under North Carolina law, a revocable living trust is an agreement between the individual making the trust (the Grantor) and one or more individuals selected to manage the trust (the Trustee(s)). The Grantor transfers assets—in this case, the firearms—to the trust and gives instructions to the Trustee(s) concerning the management of the assets while held in the trust. In a revocable living trust, the Grantor and the Trustee can be the same person. This means that you, as the firearms owner, can transfer your assets to the trust and still personally manage those assets while held by the trust.
The instructions set out in the trust document specify how the assets are to be used during the Grantor’s lifetime, as well as how they are to be distributed following the Grantor’s death. The term “revocable” in this setting simply means that the Grantor has the power to change the terms of the trust, or completely do away with the trust, if he or she wishes to. The Grantor also has the power to add or remove assets from the trust throughout its lifetime.
The NFA regulates the possession, use, and transfer (or purchase) of “Title II” firearms, which include machine guns, short-barreled rifles and shotguns, suppressors, destructive devices, and some others.
Under the NFA, if an individual person wishes to purchase a Title II firearm, or have a Title II firearm transferred to him or herself, that individual must include with his or her application a recent photograph, duplicate fingerprint cards, and a certification from the chief law enforcement officer—often the county sheriff (among other requirements). However, the NFA also allows for trusts to purchase or have Title II firearm transferred to them.
Taking into consideration some of the requirements of the NFA, there are several benefits to the use of a firearms trust arrangement:
- It avoids some of the requirements of the NFA. Using a firearms trust to purchase or receive a transferred Title II firearm means that the requirements for a recent photograph, fingerprint cards, and, most importantly, a certification from law enforcement, are waived. This is important because it is becoming increasingly difficult to get the chief law enforcement officer’s signature.
- Allows one or more person to possess and use the firearms which are held in the trust. If you name more than one person as a trustee or beneficiary, each may have the right to possess or the use the firearms held by the trust.
- Keeps the firearms in the trust even after the Grantor’s death. This is a benefit as it avoids the usual, somewhat complex, transfer requirements imposed by the NFA after the prior owner’s death. Essentially, this means that those who inherit the firearms can avoid paying the transfer tax, filing ATF paper work, and receiving permission from the Chief Law Enforcement Officer to keep the NFA firearms.
- Assists the Executor of your estate. Whomever is responsible for executing your estate may not be familiar with the laws regarding ownership, possession, and transfers of Title II and/or non-Title II firearms. As such, the executor could inadvertently violate criminal laws by transferring a firearm without going through the proper procedures. However, when firearms are kept in a properly formed trust, the executor is not involved and the terms of the trust—which should have been drafted to address the Grantor’s death—will control.
If you are searching for a way to obtain better legal protections for your Title II and/or non-Title II Firearms, not just now, but for future generations, then a firearms trust may be the proper legal solution for you. While there are many “do it yourself” options available for firearms trusts, it is important to note that many will not have been tailored specifically for the purpose of holding NFA Title II firearms. If you are relying on a firearms trust that has not been correctly formed, then you or others you know may be committing felonies simply by possessing the Title II Firearms. I will be more than happy to discuss your specific needs in order to determine whether a firearms trust is the correct legal entity for you.