Transfers from a Decedent's Estate

hdwhit · Sep 19, 2017

I have gone through the search function to look for this and what I did find, either didn't seem on-point or wasn't clear to me.

This is my situation:

As of 1977, I became a resident of the state of Arkansas.
In 1980, I purchased a Ruger Mini-14 rifle for myself.
When my father saw and shot the rifle, he really wanted it (and since he was paying for me to go to college), I gave it to him.
I subsequently left Arkansas and became a resident of Texas.
Despite having variously established residency between Arkansas and then Texas over the years, I am currently a Texas resident.
My father (age 93) will soon move into an assisted living apartment.
The assisted living facility does not allow him to bring his guns with him.
He has no problem transferring them to me (I am his only surviving heir)

As I read the applicable statute, because I am a resident of a different state, for me to take possession of his guns, I would need to do the transfer through an FFL.

If, I was able to establish residence in Arkansas prior to my father going to his assisted living apartment (at which point it seems I would, if nothing else, be constructively in possession of his guns) then he could transfer the guns to me as one Arkansas resident to another, otherwise it would have to go through an FFL. Is this correct?

And, if he were to pass away prior to my establishing Arkansas residency, even though I am the sole beneficiary of his will and his executor, the fact that the guns were not specifically mentioned in the will would still require they be transferred through an FFL?

The Tax Court said 26 U.S.C 41 was the most complex provision in the Internal Revenue Code, but I can navigate it easily; while the requirements of this provision leave me befuddled.

Thanks for any insight you can provide.

Klint Beastwood · Sep 19, 2017

What about interfamiliar transfers?

JohnKSa · Sep 19, 2017

What about interfamiliar transfers?

I don't believe that's a thing. There's no exception that allows interstate transfers to take place between family members without engaging the services of an FFL.

Bequests are the only exception I'm aware of that allows the transfer of a firearm between non-licensed persons who are not residents of the same state without the help of at least one FFL.

As I read the applicable statute, because I am a resident of a different state, for me to take possession of his guns, I would need to do the transfer through an FFL.

Correct.

If, I was able to establish residence in Arkansas prior to my father going to his assisted living apartment (at which point it seems I would, if nothing else, be constructively in possession of his guns) then he could transfer the guns to me as one Arkansas resident to another, otherwise it would have to go through an FFL. Is this correct?

I don't know what you mean by "establishing residence". I don't know a legal recipe for doing that. If you're talking about moving to Arkansas or actually taking up residence in Arkansas then that's one thing. But if you're trying to come up with some scheme to try to "establish residence" in a state where you don't really live, then that's not a good strategy.

But yes, if you are both residents of the same state then (as long as there's no state law against it) you can transfer ownership without engaging the services of an FFL.

And, if he were to pass away prior to my establishing Arkansas residency, even though I am the sole beneficiary of his will and his executor, the fact that the guns were not specifically mentioned in the will would still require they be transferred through an FFL?

I've wondered about this too. I'll be interested to see the answer.

Klint Beastwood · Sep 19, 2017

JohnKSa said:
I don't believe that's a thing. There's no exception that allows interstate transfers to take place between family members without engaging the services of an FFL.

Bequests are the only exception I'm aware of that allows the transfer of a firearm between non-licensed persons who are not residents of the same state without the help of at least one FFL.Correct.

Im not saying your wrong because to be honest, i dont really know what im trying to say here...but this came to mind when i was reading...
figured maybe different states would be more lenient or maybe just different enough that it might be worth investigating to see if there was something similar.

https://web.archive.org/web/2015102...ansferring_Firearms_Among_Some_Family_Members

JohnKSa · Sep 19, 2017

...maybe different states would be more lenient...

The interstate transfer restrictions I'm talking about are from federal law. Other than bequests, interstate transfers of firearms require the services of an FFL per federal law. State law (for example California law) can be more strict and impose more/more stringent requirements, but there's nothing a state can do that would let you circumvent the federal law.

Your link is about CA law. Apparently CA law restricts transfers more than federal law but provides an exception for transfers between family members. That wouldn't apply to any states other than CA (or states with similar laws) and even then wouldn't allow interstate transfers (or any other kind of transfers) that are prohibited by federal law.

In other words, that exception would let you off the hook in terms of intrastate transfers in CA, but can't do anything to let you off the hook in terms of interstate transfers because they are still regulated by federal law.

When it comes to federal law, a state can be more strict, but it can't be more lenient--a state can't legalize something that's illegal per federal law because federal law will still make it illegal.

Frank Ettin · Sep 19, 2017

To the OP:

Just do the transfer through an FFL. That will be easier and more straightforward than trying to get around the Gun Control Act.

Note that while handguns must be transferred through an FFL in the transferee's State of residence, federal law will permit a long gun to be transferred by any FFL as long as (1) the long gun is legal in the transferee's State of residence; and (2) the transfer complies with the laws of the State in which it takes place; and (3) the transfer complies with the law of the transferee's State of residence. So you might be able to find an Arkansas FFL to handle the transfer.
Establishing Arkansas residence for the purpose of the Gun Control Act might not be that simple. One's State of residence for the purposes of federal law is (27 CFR 478.11):

The State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State.....

Click to expand...

Your intent to make Arkansas your home will be established by evidence of actions consistent with such intent: buying or renting a place to live; registering your car and getting an Arkansas driver's license; finding a doctor; moving your stuff; looking for work (unless you're retired); etc. Furthermore, you've basically told the whole world that you don't intend to make Arkansas your home. You're just doing this to get a gun without going through an FFL.

Frank Ettin · Sep 19, 2017

Klint Beastwood said:
Im not saying your wrong because to be honest, i dont really know what im trying to say here...but this came to mind when i was reading...
figured maybe different states would be more lenient or maybe just different enough that it might be worth investigating to see if there was something similar.

https://web.archive.org/web/2015102...ansferring_Firearms_Among_Some_Family_Members

Cut it out. You're wrong, and John is correct.

State law is irrelevant. Since we're discussing a transfer of a gun between residents of different State it's federal law that matters. Federal law here supersedes the laws of any State.

Federal law requires that the transfer go through an FFL, and there are no exceptions under federal law for intrafamilial transfers.

GAF · Sep 19, 2017

hdwhit,

You are trying to take the most convoluted route to achieve your goal.
Do what Frank says and make this process much easier on yourself.

cjwils · Sep 19, 2017

hdwhit said:
And, if he were to pass away prior to my establishing Arkansas residency, even though I am the sole beneficiary of his will and his executor, the fact that the guns were not specifically mentioned in the will would still require they be transferred through an FFL?

This has been discussed before somewhere (maybe on another forum). The answer was that guns do not need to be specifically mentioned in the will. If the will says something like "I give my personal property to my son," that would be sufficient.

Spats McGee · Sep 19, 2017

cjwils said:
This has been discussed before somewhere (maybe on another forum). The answer was that guns do not need to be specifically mentioned in the will. If the will says something like "I give my personal property to my son," that would be sufficient.

If you have any cases that would back that up, I'd sure like to see them. I have my doubts.

pintler · Sep 19, 2017

"I have my doubts."

Spats: I'd love to hear your reasoning. If the will (or intestate rules) leaves personal property to Fred, and the personal property happens to include guns, who would now own them other than Fred?

https://www.atf.gov/file/3871/download reads:
"Another exception is provided for transfers of firearms to nonresidents to carry out a lawful bequest or acquisition by intestate succession. This exception would authorize the transfer of a firearm to a nonresident who inherits a firearm under a will or by State law upon death of the owner. See18 U.S.C. §922(a)(5)(A)."

The USC section reads "except that this paragraph shall not apply to (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence,..."

I don't see any 'if specifically mentioned in the will' language. The fact that intestate succession is allowed would seem to argue against such an interpretation, I'd think???

Frank Ettin · Sep 20, 2017

pintler said:
....I don't see any 'if specifically mentioned in the will' language. The fact that intestate succession is allowed would seem to argue against such an interpretation, I'd think???

A bequest is specifically a gift by will.

Intestate succession is the passage of property upon death without a will. Intestate succession is governed by state law. The intestacy laws of each State define with particularity who is entitled to share in the property of someone who has died without a will and what percentage of of the estate, after the payment of debts and taxes, each participant may acquire.

Spats McGee said:
cjwils said:

This has been discussed before somewhere (maybe on another forum). The answer was that guns do not need to be specifically mentioned in the will. If the will says something like "I give my personal property to my son," that would be sufficient.

Click to expand...

If you have any cases that would back that up, I'd sure like to see them. I have my doubts.

Details can be important. What if the estate includes real property, and there is personal property associated with the real property -- e. g., a working farm (real property) and farm equipment (personal property) necessary to operate the farm?

What about debts? Will available real property be liquidated to raise money to pay the debts? Or will the debt burden fall on the heir(s) to the personal property, and what personal property will be liquidated to pay those debts?

Are there any relatives who might be likely to contest the will in question?

The correct answer to the OP's question:

hdwhit said:
....if he were to pass away prior to my establishing Arkansas residency, even though I am the sole beneficiary of his will and his executor, the fact that the guns were not specifically mentioned in the will would still require they be transferred through an FFL?.....

is: Possibly not, but you should consult a qualified lawyer.

Spats McGee · Sep 22, 2017

pintler said:
"I have my doubts."

Spats: I'd love to hear your reasoning. If the will (or intestate rules) leaves personal property to Fred, and the personal property happens to include guns, who would now own them other than Fred?

First of all, let me apologize for the tardy reply. I just haven't had time to post much or do the research. Second, I'll admit that I have no case law directly on point that says one absolutely, positively must indicate by name, make and serial number exactly which firearm is being transferred by bequest or intestate succession. I do think there's a valid question as to whether specific identification could be required on the federal level, particularly in light of the fact that federal law allows for an interstate transfer by "intestate succession." For example, I have a hard time imagining a judge agreeing that specific identification of the firearm would be required, when a situation has been contemplated (and even written into the code) in which the decedent did not even have a will. That, however, does not resolve the state law questions.

With those caveats, here's what I do know: (1) 18 USC § 922, which contains the general rule (which boils down to "no interstate transfers without involving an FFL") and the exception to that rule for bequests and intestate succession, is a matter of federal law; (2) bequests and intestate succession are matters of state law; (3) which puts the inheritance of a firearm into that very strange area known as "the intersection of federal and state law." Thus, federal law, the law of the decedent and the law of the putative heir must all be considered in determining the validity of the transfer. I also know that (4) the BATFE can be a little persnickety when it comes to interstate transfers. It's worth the cost of a transfer not to be on the receiving end of a federal indictment.

pintler · Sep 22, 2017

Thank you very much, Spats.

So, dear old Dad dies. His will says 'all my worldly goods go to my beloved daughter Alice'; nothing more. Those worldly goods include firearms. Dad lived in Montana, Alice lives in Wyoming.

Alice is by temperament very cautious. She's also the executor of Dad's will. Your view of the most legally conservative approach is that Executor-Alice carries the guns to a Wyoming FFL, where Executor-Alice transfers them to Daughter-Alice?

I've done intra-family inter-state transfers at FFL's before, and so I can just imagine the looks when Executor-Alice announces she wants to transfer to Daughter-Alice. IMHE, it takes a lot of convincing at your typical FFL that there isn't a family exemption. The usual result, again IMHE, is a grudging 'well, since it's family no paperwork is required, but if you really want us to, we'll go through the motions'.

(BTW, I completely agree that state law can matter - IIRC Washington state's new UBC law requires some kind of paperwork for inheritances - I haven't been in that situation, so haven't looked at the details)

Frank Ettin · Sep 22, 2017

pintler said:
...So, dear old Dad dies. His will says 'all my worldly goods go to my beloved daughter Alice'; nothing more. Those worldly goods include firearms. Dad lived in Montana, Alice lives in Wyoming. ....

Things are pretty much never that simple, and the details matter. An answer based on those assumed, but improbable, facts might well be wrong in a real situation which is similar, but still a bit different.

Let’s not spin wheels.

CapnMac · Sep 23, 2017

pintler said:
So, dear old Dad dies. His will says 'all my worldly goods go to my beloved daughter Alice'; nothing more. Those worldly goods include firearms. Dad lived in Montana, Alice lives in Wyoming.

Alice is by temperament very cautious. She's also the executor of Dad's will.

All sorts of misleading presumptions in this hypothetical.
Even presuming Alice to be the only heir, it's highly uncommon that a sole heir is also the executor.
Even if the Will so appoints Alice, the Probate Court is at liberty to require a counsel for the decedent, and could appoint an ombudsman as well.

Presuming the probate has been completed, Alice typically piles the arms in her trunk and drive home to Wyoming.

But, in your specific example, Alice will have gone to her LGS in Wyoming and gotten their permission and information. She then goes to an FFL in Montana with the arms and says, "I'd like these to be shipped to this FFL [hands over info], please." They then deal with whatever fess are required (or have been negotiated).

But, as Franl has already pointed out, it's a flawed premise. Simply writing that "[name] is to receive all my worldly goods" is not only a badly worded will, its incredibly bad estate planning.

Shimitup · Oct 9, 2017

I had a thought about the Ruger Mini14. You purchased it, your name is on form 4473, is it not still yours? Are you not just picking it up to take it home?

Frank Ettin · Oct 9, 2017

Shimitup said:
I had a thought about the Ruger Mini14. You purchased it, your name is on form 4473, is it not still yours? Are you not just picking it up to take it home?

No, it's not his.

He gave it to his father when both he and his father were residents of Arkansas. He told us so in the first post.

So the rifle now belongs to and is in the possession of his father. And since the OP is now a resident of a different State, under federal law the rifle needs to be transferred to the OP through an FFL.

So if I were in a more charitable mood I'd suspect that you just weren't paying attention and missed some of the details laid out in the first post.

But since I'm not a very charitable guy sometimes, I'm more inclined to suspect that you were just trying to suggest what you thought was some clever chicanery to get around federal law. I don't think highly of that sort of nonsense.

You can put lipstick on a pig, but it's still a pig.

Shimitup · Oct 10, 2017

I

Frank Ettin said:
No, it's not his.

He gave it to his father when both he and his father were residents of Arkansas. He told us so in the first post.

So the rifle now belongs to and is in the possession of his father. And since the OP is now a resident of a different State, under federal law the rifle needs to be transferred to the OP through an FFL.

So if I were in a more charitable mood I'd suspect that you just weren't paying attention and missed some of the details laid out in the first post.

But since I'm not a very charitable guy sometimes, I'm more inclined to suspect that you were just trying to suggest what you thought was some clever chicanery to get around federal law. I don't think highly of that sort of nonsense.

You can put lipstick on a pig, but it's still a pig.

Frank, I don't think highly of such either. I did absorb all of the content of the OP's text. Since I'm not a lawyer I was just musing about what may be legal. not suggesting that it is. I hope that I did not come across as suggesting the OP engage in such chicanery. I'm assuming then that the agreement between he and his father is then legally binding regardless of paper documentaton and he would be committing perjury to claim otherwise in court.

I'm glad you chimed in, I was aware that you were following the post and hoping, and quite confident that you would clear things up.

Frank Ettin · Oct 10, 2017

Shimitup said:
....I'm assuming then that the agreement between he and his father is then legally binding regardless of paper documentaton and he would be committing perjury to claim otherwise in court....

Well, in any case, a gift is not an agreement; but that doesn't matter. Circumstances suggest that the OP intended the gun to be his father's. Even if the OP intended that he would retain what might be called a "reversionary interest" in the legal title (ownership) of the gun, i. e., the OP would get the gun back when the father is done with it, it's important to understand that the Gun Control Act or 1968 deals with physical possession, not necessarily ownership. This has been discussed here a number of times in the context of storing guns with someone in another State, but the same principles apply here. See this thread, for example.

patmccoy · Oct 10, 2017

[Simply writing that "[name] is to receive all my worldly goods" is not only a badly worded will, its incredibly bad estate planning./QUOTE]

Often, but not always, true. I have one child, in another state, and he does get it all. The current Uniform Credit suffices for the vast majority of the population not to need advanced methods. unless they wish to make additional bequests.

On an additional note, I have the question as to how using a living trust, with a pour-over will, affects the ownership and transfer of firearms to an out of state sole beneficiary who is also the trustee? Same method of FFL transfer?

Thanks.

Shimitup · Oct 10, 2017

Frank, thanks for the link to the other thread, quite thorough and informative.

Sunray · Oct 14, 2017

"...My father (age 93) will soon move into an assisted living apartment..." Your pop's not a decedent. Get him to make a living will(assuming that's legal in both States) and call your FFL.
"...don't think highly of that sort of nonsense..." Neither do the Fedrales.
Lotta fuss for a place that supposedly has no Federal firearm registration.

Pheasant Plucker · Oct 29, 2017

Why not just sell the gun while your father is still alive, neither you or your father are using the rifle. The cost of FFL, mailing, lawyering, possible federal prosecution and the aggrevation of having everyone arguing over the law aren't worth the issue it's causing. Just my two cents!

Transfers from a Decedent's Estate

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