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GUN TRUSTS

Why Do I Need an NFA Gun Trust?

Using an NFA Gun Trust provides numerous advantages to an individual who would otherwise purchase Title II firearms in his or her own name. The National Firearms Act (NFA) Gun Trust was developed to hold Title II firearms (including other weapons and suppressors as defined in the National Firearms Act of 1968) and to help expedite the purchasing process of these items. Title II firearms are highly regulated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) and cannot be transferred from dealer to individual, or from individual to individual, unless the transfer has been approved by the BATFE. An individual who possesses a Title II firearm without the approval of the BATFE is in possession of contraband and is subject to severe federal penalties which may include fines up to $250,000 and incarceration up to 10 years in federal prison.

Categories of Title II Firearms

Title II firearms consist of several categories: short-barreled shotguns, short-barreled rifles, machine guns, suppressors, and other devices, to name a few. The most common Title II firearms are defined in 26 U.S.C. § 5845 as follows:

  1. Shotgun. Shotgun with a barrel or barrels measuring less than 18 inches in length.

  2. Weapons made from shotguns. A shotgun-type weapon that has an overall length less than 26 inches or a barrel or barrels of less than 18 inches in length.

  3. Rifle. A rifle with a barrel or barrels of less than 16 inches in length.

  4. Weapons made from rifles. A rifle-type weapon that has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length.

  5. Any other weapon. Firearms that can be concealed on the person and have a shot that can be discharged through the energy of an explosive. Examples of “any other weapon” include pin guns, cigarette lighter guns, knife guns, cane guns, and umbrella guns.

  6. Machine gun. Weapons that are designed to shoot or can readily restore to shoot automatically more than one shot without manually reloading by single function of the trigger.

  7. Silencer/Suppressor. A device used for silencing, muffling, or diminishing the report of a portable firearm.

  8. Destructive devices:

  • (i) Explosive devices. Any explosive incendiary or poisonous gas bomb, grenade, mine, or similar device is considered a destructive device.

  • (ii) Large caliber weapons. A weapon that can expel or be converted to expel a projectile by the action of an explosive or other propellant — the barrel or barrels of which have a bore diameter of more than one-half inch — is a destructive device.

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With the above items being highly regulated based upon their classification as Title II firearms, the following have been exempt from the list and do not follow the same regulations, despite having characteristics of the items listed above:

  1. Unserviceable firearm. A firearm that is incapable of discharging a shot by the action of an explosive and is incapable of being readily restored to a firing condition.

  2. Antique firearm. Firearms defined by the NFA as antique firearms are not subject to any controls under the NFA. The NFA defines antique firearms based on their date of manufacture and the type of ignition system used to fire a projectile. Any firearm manufactured in or before 1898 that is not designed or redesigned for using rim-fire or conventional center-fire ignition with fixed ammunition is an antique firearm.

  3. Curios or relics. Firearms that are of special interest to collectors. A firearm that is recognized as a curio or relic is still an NFA firearm and remains subject to the registration and transfer provisions of the NFA.

Individuals Purchasing a Title II Firearm

An individual purchasing a Title II firearm, without using an NFA Gun Trust, faces the following potential risks/liabilities: 

 

  • Use by Others - An individual who purchases a Title II firearm must be present with all other persons who want to use the Title II firearm. If another person is left alone with a Title II firearm or has access to it, both parties potentially place themselves at risk of a federal felony.

  • Probate - At the death of an individual who owns a Title II firearm, the Title II firearm is held in the deceased individual’s estate. Neither the executor of the estate nor the family members can handle the Class 3 firearm because they are not authorized users, with very few exceptions and limited timeframes for possession.

  • Accidental Possession - Even if an individual does not physically possess a Title II firearm, one can be found guilty through constructive possess (that is, have knowledge of its existence and the power to control it). Thus, if a Title II firearm is registered to an individual personally and not to a trust, and that individual’s spouse has the lock combination to the gun safe where said item is stored, the spouse can be found in constructive possession of that item and at risk for a federal felony. 

The Advantages of Using an NFA Gun Trust

Using an NFA Gun Trust provides numerous advantages to an individual who would otherwise purchase a Title II firearm in his or her own name. The purchase would be in the name of the trust, not the individual, and because of this may gain the following advantages:

 

  • Timelines for approving BATFE applications may be reduced in the future and trusts submitting applications for multiple items within a 24-month timeframe have expedited processes.

  • The individual setting up the NFA Gun Trust, known as the Grantor, can list qualified individuals who may legally possess the restricted Title II items, freeing both the Grantor and their listed friends/family of criminal liability for unlawful possession.

  • When an NFA Gun Trust is used, the probate process may be avoided and the item(s) may be passed directly to a beneficiary in a streamlined process without going through a formal probate or waiting for BATFE approval if the item is left in the trust.

  • With a well drafted Gun Trust, the Grantor will be able to add and remove individuals who may possess the Title II firearms with ease and without the need to pay transfer tax fees to the BATFE. 

  • An NFA Gun Trust can help guide others through responsible sharing of Title II firearms.

  • With the use of an attorney’s assistance in drafting an NFA Gun Trust, the client receives the benefit of legal guarantee - that is, if laws change or specific advice is given, the attorney will be able to guarantee their product through their legal malpractice insurance policy which every licensed attorney in Idaho should carry, ensuring that both the trust which is drafted and the advice which is given comes with a peace of mind to the gun owner to help keep them out of trouble.

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