Can legal trusts be used to circumvent "non-transferable" clauses?


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BearGriz
December 21, 2012, 08:37 AM
I tried to see if this was already discussed, but couldn't find it. Basically I've heard of NFA trusts so you can avoid tax stamps, etc. when you die and want to pass on AOWs, suppressors, full-auto firearms etc. Can these type of trusts contain any items or must they be NFA-related?

In other words, can I set up a trust that has "AK-style" rifles, "high-capacity" magazines, and other potentially banable items in it? If I understand how these trusts work, the trust owns the banned items (speaking of a possible future), so when I die nothing is actually "transferred." Instead, my heirs are just added to the trust (which maintains ownership) and my heirs can use the items as much as they want. Does that sound right?

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BearGriz
December 21, 2012, 02:30 PM
Nobody knows or no one cares? :( I know that bumping is frowned upon, but I'd really like to get some opinions and thoughts on this.

Since I asked this question this morning, I did some research and all I can see is people talking about doing a trust for NFA items. I would really like to know if you can do it for other firearms as well.

Zoogster
December 21, 2012, 02:40 PM
You can. It is something that you want a lawyer versed in state and federal law to draw up.
Even then some will draw them up better than others.


But essentially the trust is the legal entity, so if anything is grandfathered to an existing owner, it should be grandfathered to the trust.
To accomplish that you obviously need the trust to be the owner before any transfer deadlines.
With a trust you can have multiple trustees and/or beneficiaries. How it works depends on how the trust is setup.
It is important to write it up correct the first time so what you want locked in place is, and what may need to change down the road is able to be changed by those in the future.
It needs to allow for use of the items, and adding names of those authorized to use them.

Law enforcement is also not a well versed lawyer, so you would need to keep copies of the proper paperwork with the guns, and be ready to explain it or have a lawyer ready to explain it if necessary.

Zoogster
December 21, 2012, 02:44 PM
Here is a Florida attorney with a post on his on website from 2009 mentioning just what you ask about:

http://www.guntrustlawyer.com/2009/02/assault-weapons-trust.html


He broke his link in that post, but you can fix it.

Ian
December 21, 2012, 04:24 PM
As far as this applies to a new upcoming law, there's really no way to know the answer without seeing the actual text of a proposed bill.

CharlieBT
December 21, 2012, 07:09 PM
That is an interesting idea. Please share what you learn. Query: would a trust, corporation or other perpetual legal entity have a 2nd Amendment right to own firearms? SCOTUS extends 1st Amendment rights to corporations.

Queen_of_Thunder
December 22, 2012, 10:09 AM
That is an interesting idea. Please share what you learn. Query: would a trust, corporation or other perpetual legal entity have a 2nd Amendment right to own firearms? SCOTUS extends 1st Amendment rights to corporations.
I would argue that if a corporation has a First Amendment Right then it also has a Second Amendment Right. I don't see how it would not but I'm no lawyer so take this for what it's worth.

AlexanderA
December 22, 2012, 05:59 PM
Query: would a trust, corporation or other perpetual legal entity have a 2nd Amendment right to own firearms?

Trusts, unlike corporations, cannot be "perpetual." There's something in trust law called the "rule against perpetuities."

dogtown tom
December 22, 2012, 06:29 PM
BearGriz I tried to see if this was already discussed, but couldn't find it. Basically I've heard of NFA trusts so you can avoid tax stamps, etc. when you die and want to pass on AOWs, suppressors, full-auto firearms etc. Can these type of trusts contain any items or must they be NFA-related?

In other words, can I set up a trust that has "AK-style" rifles, "high-capacity" magazines, and other potentially banable items in it? If I understand how these trusts work, the trust owns the banned items (speaking of a possible future), so when I die nothing is actually "transferred." Instead, my heirs are just added to the trust (which maintains ownership) and my heirs can use the items as much as they want. Does that sound right?

If you die your heirs can have all your NFA toys transferred to themselves tax free on a Form 5.....no trust needed.

Lurkerdeac
December 22, 2012, 09:12 PM
The rule against perpetuities can easily be drafted around and its been abolished in many states.

The main question is would any ban on transfer be drafted around this. It will be totally dependent on the wording of the legislation. I offer NFA gun trusts on my website and I've been contemplating pursuing this angle, but I think it's wrong to get peoples hopes up that they could preserve ownership when we don't know what the legislation will say.

Disclaimer...no legal advice is given here. If you need legal advice, see a lawyer.

BearGriz
December 25, 2012, 11:55 AM
I appreciate the responses, thanks! It sounds like it might work, unless the antis catch wind of it and write the law to prevent it. In the end, our best option is to fight any and all bans so we don't have to worry about this.

Merry Christmas!

kimbershot
December 25, 2012, 12:02 PM
i would have to guess that everything would depend on what state the item might ultimately end up in. my uzi sbr may be legal in my state, but a beneficiary in another state may not be able to accept it (ie ct = awb state).

Hawaiian
December 25, 2012, 12:28 PM
If any bill in it's final draft prohibits the sale or transfer of any firearm or magazine I will gift them to my adult son before the law goes into effect. I will list them all and have the transfer document notarized and file in it my safe deposit box.

BearGriz
December 25, 2012, 10:31 PM
Unfortunately none of my heirs will be old enough to own any of my firearms for quite a while. That is the main reason I'd seriously consider this option.

berettaprofessor
December 27, 2012, 05:00 PM
Brilliant Hawaiian! Will do the same!

Zoogster
December 27, 2012, 05:12 PM
Well the purpose of the OP is so it is not just a single transfer.

Transfering them to your son means they don't belong to you anymore either.
They belong to him. If there is restrictions on transfers after that date then they are stuck with him too.
That means he could not pass them on to his children. It also means if they were untransferable and he had to give them up such as if he became a prohibited person, or if he died, they would cease to be in the family because he couldn't own them and they couldn't be transfered to someone after the deadline.
With a trust though they belong to the trust. They don't need to be transfered to go on to be used by new people or later generations.

berettaprofessor
December 27, 2012, 05:41 PM
200 years from now, I really don't care who's using them. But I do care that my son gets them hassle-free. And that notarized paper doesn't need to see the light until the day I die. If that's illegal, then somebody please tell me now. (and yes, I'll consult a lawyer about it as well.)

mljdeckard
December 27, 2012, 05:54 PM
No one can say how a law which hasn't been written yet will work.

Hawaiian
December 28, 2012, 02:11 PM
In Oregon, I actually do not need any transfer paper under current existing law. I can just say, "Merry Christmas" and give them to him. However, by taking a few minutes to type up a list and have it notarized, I will hopefully be able to rebut any future challenge that the anti's present.

rmw
December 28, 2012, 02:12 PM
I would argue that if a corporation has a First Amendment Right then it also has a Second Amendment Right. I don't see how it would not but I'm no lawyer so take this for what it's worth.

That should also apply to an individual ,but unfortunately our government seems to be straying more and more away from that every day

I would also add , if you do not need a "permit/background check" to exercise your 1st amendment rights so why should you need it for your
2nd

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