This one word can elicit so much fury and vitriol. It is often a polarizing topic that can pit members of the same community, place of worship, and even family against each other. In fact, I am certain that many of you reading this article are trying to decipher which side of the firearms issue this author falls on and whether or not that will bias this article. Be that as it may, the reality is that firearms do exist, and they are owned in increasing numbers by private citizens all around us. These conditions set the stage for potential issues as the owners of these firearms become incapacitated and eventually die.
PLANNING FOR THE INCAPACITY OF A FIREARM OWNER
In a recent NPR article, it was suggested that researchers estimate nearly half of people over 65 are gun owners or reside in a household with a gun owner. As an estate planning attorney, the presence of a firearm in a household can become a concern—particularly if one of my clients suffers from dementia or some other mentally debilitating event or condition which could cause them to be a danger to themselves or to someone else.
When JGB takes on a new estate planning client, they are asked to complete a “Client Information Sheet.” This sheet records family and financial data as well as one particular question that often draws suspicion from the client: “Do you own any firearms?” I often explain to clients that if the answer to the question is “no,” then you don’t have firearms; whereas, if the answer to the question is “yes,” or it is left unanswered, then you have firearms. The reason we ask this question is twofold: 1) the firm is trying to determine if we need to take any additional estate planning action with regard to a specific class of firearms known as “NFA” items; and 2) it alerts us the presence of firearms, so if the client is incapacitated in the future, we can advise the successor Agent/Trustee appropriately.
JGB recommends that our clients who own firearms discuss with their family and/or successor Agent/Trustee when and how they should “retire” from their ownership and use of firearms if they should become incapacitated. Having the client/owner of the firearms take the lead in this analysis and discussion should help minimize the feeling or perception that their firearms are being taken from them, as they are the authors of both the trigger event (pun intended) and the remediation actions for the appropriate transfer and/or liquidation of the firearms at that incapacitation point.
CUSTODIAN OF THE FIREARMS
It is essential that whomever the client/owner of the firearm chooses as the successor Agent/Trustee to take custody of the firearm(s) upon incapacity does not qualify as a “prohibited person” under state and federal law. This could cause a whole additional host of criminal/civil problems. The Gun Control Act (GCA), codified at 18 U.S.C. §922(g), makes it unlawful to ship, transport, receive, or possess firearms or ammunition, to include any person:
- convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
- who is a fugitive from justice;
- who is an unlawful user or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act, codified at 21 U.S.C. § 802);
- who has been adjudicated as a mental defective or has been committed to any mental institution;
- who is an illegal alien;
- who has been discharged from the Armed Forces under dishonorable conditions;
- who has renounced his or her United States citizenship;
- who is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner; or
- who has been convicted of a misdemeanor crime of domestic violence.
TAKING POSSESSION OF THE FIREARMS
Assuming the agreed upon incapacity event has occurred and the appropriate successor Agent/Trustee has been empowered to act and they are not a “prohibited person,” there are additional issues relating to actually taking custody of and transporting the firearms.
First, upon taking custody of the firearms, the successor Agent/Trustee should confirm the firearms are not loaded and then secure the items appropriately so they cannot be operated and/or accessed by anyone but the successor Agent/Trustee. The firearms are an estate asset and may have substantial value (either actual or sentimental). As such, they should be stored so as not to subject the firearms to unnecessary exposure to any elements or conditions that would negatively impact their value (moisture, etc.). If the successor Agent/Trustee is not familiar with how to make a firearm safe and properly store said firearm, then they should engage the services of someone that can provide them with this training and/or information. Most firearm dealers are very willing to provide helpful information on this subject.
Second, if the successor Agent/Trustee is not a resident of the state of the owner of the firearms and intends on transporting the firearms to a different state for safe-keeping or liquidation, they should discuss this with qualified legal counsel as there are numerous restrictions on transportation of firearms across state lines. Be advised, the limited exceptions for transporting firearms across state lines which may be available for “probate estate” cases when someone dies, do not apply to a situation when someone is instead incapacitated. The successor Agent/Trustee may wish to engage the services of an FFL dealer to assist in the legal transportation of the firearms across state lines to avoid any appearance of impropriety. Further, there are certain states/territories/possessions (such as the District of Columbia, New Jersey, and New York) that have extremely strict gun laws that could impact the successor Agent/Trustee if they are subjected to a traffic stop and vehicle search. Paying an FFL dealer to transport the firearms by a licensed and bonded common carrier can eliminate this issue.
LIQUIDATION OF THE FIREARMS
If the successor Agent/Trustee intends on liquidating the firearms, be mindful that these, again, may be valuable assets. Be certain to have them appraised by a qualified dealer/appraiser so that you are complying with your fiduciary duty to act in the best interest of the principal (the owner of the firearms). Be careful of private sales as the successor Agent/Trustee is legally responsible to ensure that they are not selling the firearms to a prohibited person. The successor Agent/Trustee can also consider either selling the firearms on consignment with a reputable dealer or selling the items to the dealer.
There is no simple answer with regard to anything firearms related in our society. Owners of firearms have a responsibility to keep them safe and use them for lawful purposes only. I submit that this responsibility also includes making certain that they have a safe and effective plan for “retiring” from the use and ownership of their firearms when they have an incapacity event. Do not hesitate to contact your JGB attorney if you have questions or concerns about incorporating your firearms ownership with your estate plan.
TrustGuard™ renewal enrollment for 2019 is now open. TrustGuard™ allows JGB Trust clients to feel secure knowing that their Trust plan remains current, effective, and relevant. TrustGuard™ is for our clients who are serious about protecting their investment in a Trust-based estate plan with an annual review of the plan. The annual fee includes a review of your trust plan and trust funding and annual updates. We have sent an invitation to enroll both to clients who were paid TrustGuard™ members in 2018 and those whose trusts were signed in 2018.
Enrollment for the 2019 TrustGuard™ period ends on February 28, 2019. JGB clients who do not re-enroll during the enrollment period will not have another opportunity to re-enter into the program.
Participation in TrustGuard™ is entirely voluntary; however, it is highly recommended given the political and financial volatility we have experienced during this part year as a nation. The program fee is billed at an annual flat rate. Any JGB clients who are not enrolled in TrustGuard™ will pay for services covered by TrustGuard™ at our standard rates. If you pay your TrustGuard™ enrollment fee before February 1, 2019, you need only pay the reduced rate of $600.00. Enrollments paid after February 1, 2019, but before February 28, 2019 (end of open enrollment), will be subject to the full TrustGuard™ fee of $700.00. Contact our office for a TrustGuard™ Enrollment Form.
DID YOU KNOW?
Did you know that the attorneys at Johnson, Gasink and Baxter, LLP have built their practice by working with great clients like you? We are now offering small estate planning classes for clients and their friends. Class attendees will learn about their estate planning options, the dangers and expense of probate, and how to effectively utilize a Revocable Living Trust plan. The classes are offered at the following dates and locations:
- Jan. 22nd at 2:00 and 7:00 at our Williamsburg office
- Feb. 12th at 2:00 and 7:00 at our Richmond office
- Mar. 12th at 2:00 and 7:00 at our Virginia Beach office
Don’t let something happen to your friends and loved ones without proper estate planning in place! Please contact Brooke Heilesen directly at 1 877 790 4555 to reserve a spot in a class.