Live in MD - Can I set up a trust that resides in VA?

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1894

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Just a little outside the box thinking. If I were to move to MD, Can I get a UPS address (probably have to set up a business first to be the Settlor) in VA and keep / purchase firearms in VA as long as those items never enter MD?

I figure most of my shooting would be done in VA anyway. Thinking a gun safe in a storage unit... There are probably better ways.

I know this sounds kinda shady. I really don't mean it that way. I just don't like being told what I can't do, and want to keep things legal and above board. After all, I'm posting this question on the most popular (and helpful) firearms forum on the internet - and I know what that means.

Putting on my turnout coat and waiting for the flames...
 
I suppose you could form a trust or corporation out of state. A trustee may reside in a different state than the trust. However, at least in the case of an NFA trust, a firearm can not be taken out of the state where registered without the trustee having filed and received an approved BATFE Form to temporarily transport the firearm outside of the registered state.

The trust owns the firearm. I think you would need BATFE approval to terminate the trust.

Also, a trust itself can't get a C&R license, in case that was a question.

Personally, this is seems to be a pretty cumbersome way of going about things. If you don't like "being told what to do," you are not going to like living in DC or Maryland. If you have the firearms in a VA trust, you can't bring those items home (in MD, for instance) without the ATF approvals mentioned above. You'd be adding substantial cost (including ongoing storage cost).

IMHO, if you need to resort to these kinds of gyrations, you are better off looking at moving a few miles south into VA - keeping things legal, above board, manageable, and realistically simple.
 
wojo: I concur with your opinions. I just can't not consider every option. Sometimes it's just an exercise in thought, sometimes a real world possibility. By the time the storage, legal, PO box costs are considered, it makes more sense to just live in VA.

But, what if I want a 15 min commute to a DC job and am happy w/ an 870 at the bedside for home defense but want the cool toys too? Once I start thinking about things, I have to explore the edges. Not my fault. My mommy told me I could do anything if only I wanted it bad enough.:neener:

Yes, it's a silly question for someone who actually wants to be legal. Because that person would also want it to be financially reasonable. Since this is the legal forum, and from what I know of attorneys, I figured this to be a reasonable question since it pushes the boundaries of the law and makes no sense realistically...:D
 
What kind of guns? The only guns you cannot bring into MD would be so-called "assault weapons." Machineguns are OK, but must be registered with the state within (I think) 48 hours, no problems with handguns or conventional long guns. (You have to notify BATFE of the change of address and that you will be taking the items across state lines. FWIW, MD has no laws at all on suppressors or short barrels, only on machineguns.)

I am not sure on NFA firearms, but I don't know of any law that says you cannot store other guns anywhere you want - no reason for a trust.

Jim
 
wojownik said:
...The trust owns the firearm....
Click to expand...
Actually no, it does not. A trust is not a legal entity and can not own anything. The trustee(s) has legal title to any assets held in trust. A trustee may be a natural person or an artificial person (i. e., a corporation).

People might talk in casual terms about a trust owning something or having assets, but that's only a shorthand for the more detailed, technical reality.

It's kind of like the old "I say clip, but you know I mean magazine" discussion. If one lawyer talks to another about the assets of a trust, they both know that what is really meant is the property owned by the trustee in trust. But to someone without the background to understand the shorthand, it appears that there is some legal entity called a "trust" which owns certain property. That illustrates how a casual misuse of terms can lead to a serious misunderstanding. As the Chinese say, "The first step toward wisdom is calling things by their right names."

The legal reality is that the trustee (a person -- natural or artificial (a corporation) as the case may be) holds (owns) the assets in trust, subject to the terms of the trust document, for the benefit of one or more beneficiaries. Let's look at some definitions of "trust":

  1. The Free Dictionary:
    Trust

    A relationship created at the direction of an individual, in which one or more persons hold the individual's property subject to certain duties to use and protect it for the benefit of others.

    Individuals may control the distribution of their property during their lives or after their deaths through the use of a trust. There are many types of trusts and many purposes for their creation. A trust may be created for the financial benefit of the person creating the trust, a surviving spouse or minor children, or a charitable purpose. Though a variety of trusts are permitted by law, trust arrangements that are attempts to evade creditors or lawful responsibilities will be declared void by the courts.

    The law of trusts is voluminous and often complicated, but generally it is concerned with whether a trust has been created, whether it is a public or private trust, whether it is legal, and whether the trustee has lawfully managed the trust and trust property.

    Basic Concepts

    The person who creates the trust is the settlor. The person who holds the property for another's benefit is the trustee. The person who is benefited by the trust is the beneficiary, or cestui que trust. The property that comprises the trust is the trust res, corpus, principal, or subject matter. For example, a parent signs over certain stock to a bank to manage for a child, with instructions to give the dividend checks to him each year until he becomes 21 years of age, at which time he is to receive all the stock. The parent is the settlor, the bank is the trustee, the stock is the trust res, and the child is the beneficiary.

    A fiduciary relationship exists in the law of trusts whenever the settlor relies on the trustee and places special confidence in her. The trustee must act in Good Faith with strict honesty and due regard to protect and serve the interests of the beneficiaries. The trustee also has a fiduciary relationship with the beneficiaries of the trust.

    A trustee takes legal title to the trust res, which means that the trustee's interest in the property appears to be one of complete ownership and possession, but the trustee does not have the right to receive any benefits from the property. The right to benefit from the property, known as equitable title, belongs to the beneficiary.

    The terms of the trust are the duties and powers of the trustee and the rights of the beneficiary conferred by the settlor when he created the trust....
    Click to expand...

  2. The Law Dictionary:
    ...An equitable or beneficial right or title to land or other property, held for the beneficiary by another person, in whom resides the legal title or ownership, recognized and enforced by courts of chancery. See Goodwin v. McMinn, 193 Pa. 046, 44 Atl. 1094, 74 Am. St. Rep. 703; Beers v. Lyon, 21 Conn. 613; Seymour v. Freer, 8 Wall. 202, 19 L. Ed. 300. An obligation arising out of a confidence reposed in the trustee or representative, who has the legal title to property conveyed to him, that he will faithfully apply the property according to the confidence reposed, or, in other words, according to the wishes of the grantor of the trust. 4 Kent Comm. 304; Willis, Trustees, 2; Beers v. Lyon, 21 Conn. 613; Thornburg v. Buck, 13 Ind. App. 446, 41 N. E. 85....
    Click to expand...

  3. Nolo Press:
    ...A trust is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. You can be the trustee of your own living trust, keeping full control over all property held in trust....
    Click to expand...

  4. Wikipedia:
    In common law legal systems, a trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a settlor, who transfers some or all of his or her property to a trustee. The trustee holds that property for the trust's beneficiaries. Trusts have existed since Roman times and have become one of the most important innovations in property law....
    Click to expand...

There's really no difference between a gun trust and any other trust, except that one would expect that in something called a gun trust the property owned by the trustee(s) would be guns (and maybe some special attention would be called for to assure compliance with state and federal gun laws). Beyond that, there can be a lot of variation in the terms of a trust. The settlor's purposes, the nature of the property to be held in trust by the trustee(s), the settlor's tax concerns, provisions for a successor trustee, provisions for successor beneficiaries, etc., will all figure in the way a trust document will be written.
 
Hi, Midwest,

If I understand correctly, the OP Is talking about bringing guns he already owns into MD; the new law allows that for handguns with no problems or registration. A license is not required to OWN a handgun, only to buy one in MD and there are some exemptions. Transport will not be a problem if the gun is unloaded and not accessible to the person(s) in the car.

The OP wanted to know if he could keep his guns in VA and live in MD, but didn't indicate what kind of gun(s) would be involved. The only kind he CANNOT legally bring into MD are semi-automatic "assault weapons" (as defined in the law).

Jim
 
Asking a possible legal question on a forum is iffy at best. Get it wrong and you could have dire consequences. No disrespect to all posting.

You dance around the flames and you can get burned... J s/n.
 
Jim K said:
Hi, Midwest,

If I understand correctly, the OP Is talking about bringing guns he already owns into MD; the new law allows that for handguns with no problems or registration. A license is not required to OWN a handgun, only to buy one in MD and there are some exemptions. Transport will not be a problem if the gun is unloaded and not accessible to the person(s) in the car.

The OP wanted to know if he could keep his guns in VA and live in MD, but didn't indicate what kind of gun(s) would be involved. The only kind he CANNOT legally bring into MD are semi-automatic "assault weapons" (as defined in the law).

Jim
Click to expand...
I'm reading here that handguns as well as assault weapons are regulated firearms and must be registered with the state.


http://www.mdshooters.com/showthread.php?t=114585

"Current Maryland residents are not required to register their grandfathered "assault"/"copycat" firearms, but persons who move to Maryland after October 1, 2013, would be required to register such firearms (see no. 8 below).

8. Anyone who moves into the state would be required to register "all regulated firearms" with 90 days after establishing residency (see page 52). This would apply to all handguns, except muzzleloaders and antiques (pre-1899), no matter when or where they were acquired. The registration requirement also be applied to any "assault" firearm that was lawfully possessed by the new resident prior to October 1, 2013. There will be a $15 application charge, which will cover any number of handguns/regulated firearms. It appears to me that criminal penalties would apply for failure to register a handgun within 90 days, but I would appreciate some lawyer well versed in the criminal code looking at that question. If I am right, a new resident might find grandpa's old service revolver in a trunk in a few years, take it down to the local gun shop to sell it, and end up arrested for failure to register the handgun within 90 days of establishing residency."
.
 
I was wrong and apologize; I thought that provision had been killed, but obviously they slipped it through. The requirement for residents to register regulated firearms was killed, but that got through. A typical example of the sneaky way this state legislature operates.

Again, sorry for the error and my apologies.

Jim
 
My intentions are, simply put, to retain my current (or as close as possible) enjoyment of my 2A rights if I have to move to MD. I didn't specify what types of guns because I'm not sure what will strike my fancy. I know plenty of options right now that I can't buy (or posses) in MD. Some are currently in my safe - like the AR that I bought after 10.1.13 - that I can't take into MD. At. All. Ever.:fire:

I'm trying to keep things simple by looking at residency in VA. At this point, I'm not sure that's going to work out. So, I'm just looking at my options. I know this is a convoluted mess. I was just wondering if I was the first person to think of something like this. IIRC, businesses can own firearms (including NFA) according to federal law. I know plenty of people who have businesses set up on paper for various reasons (none yet for firearms ownership, several though, have trusts).

I think I need to look into VA firearms law - not MD. See what their requirements are. I know we're getting into grey areas here. The last thing I want is to be the, "test case," and end up doing 15 years b/c I wanted to be legal.

Also, to whomever posted that it's sketchy to ask for legal advice on the internet - did you check the name of this sub-forum? Some of the smartest people you will ever know are on TheHighRoad. This little section of the internet is devoted to floating ideas before we try them IRL, and I have received some sage and salient advice here. So, it is to HighRoaders that my questions go. This way, my attorney can't overbill:D
 
Frank - a typo on my part - I am aware that the trustee owns the firearm. What a world of difference "ee" makes - the limitations of speech to text dictating.

Anyway, part of what I had in mind was the Mark Witaschek case in DC last year - Witaschek was a DC resident, but claimed that he never kept his firearms in DC - they all remained across the river at a relative's house in Virginia.

His ex-wife (bad divorce case) called the cops, alleging he had firearms in his DC residence. DC police raided (warrantless, BTW), found no firearms, but did find a shotgun shell - a dud at that. DC authorities found that enough to arrest Witascheck and pursue charges against him for some 18 months. However, they also went so far as to venture across the river - into Virginia - to demand entry to the relative' house to get Witascheck's firearms. The relative wisely refused entry.

You can kinda get the drift here - keeping firearms in VA - even in trust by a DC resident - may be an inconvenient technicality to the zealous DC keepers of the peace, as the trustee still owns the firearms.
 
1894,

If I understand your question correctly, then no, this isn't going to help you out at all because you would still personally be a resident of MD, and thus could only purchase firearms AS a resident of MD. They could be owned "in Trust" of course, but purchase and/or possession of them by you would be limited to what a Marylander can do, own, and possess.

Even if you drive to VA and try to buy a firearm there, your residency will still be MD, and a gun shop will have to follow all of MD's laws in transferring a firearm to you. So if something's illegal in MD, they can't sell (or transfer) it to you. If something requires a waiting period or whatever in MD, you'll still have to follow those requirements even if the shop is in VA. And you'll be limited to purchasing "long guns" in VA anyway as handguns have to be purchased in your state of residence which is still MD.

Your trust won't change any of that at all.

The only thing that WOULD change it is if you can own two residences, and live in VA for some part of the year. Then you are considered a VA resident during that portion of the year you're actually living there -- and so could purchase any VA legal firearm there during that time.
 
^^ This. Which BTW also happened to be part of the reasoning behind the DC prosecutors pursuit of Witaschek - as a DC resident, he didn't bother registering any of those firearms regardless of where they were being kept. In court, however they focused their case around that single shotgun shell found in his DC residence.
 
Sam, I'm taking what you stated to mean that setting up a business in VA would be as pointless as a trust.

I guess you only get a loophole is if your office is on K st...

Plan B: (always have a plan B) sell everything I can't take into MD to a friend who will (yes, I trust him that much) sell them back to me once I can get a place in VA.

Thanks everyone. If nothing else, it was an entertaining mental exercise.
 
Why sell? Find a place to store the guns in VA. Problem solved.

That being said, it would be a very interesting trick...because the trust could buy guns.
 
Mike,

That's what I'm trying to do! But, I'm sure VA regulates who can possess firearms within its borders. Trying to determine the borders of that supposed entity that can possess/purchase without in state residency. Doesn't look good.

Also, it wouldn't so much be a sale. Hey friend, wanna buy these (insert # of guns here) for $1? He'd have a bill of sale in case anything happened (burglary, etc.) and get to play with them whenever he wants. When I move to a more reasonable place, they'll be mine again. If something happens where he falls in love with a couple and doesn't want to let them go or, has to sell a few - that's cool too. It's not about the guns themselves. It's about what the gov't is trying to tell me v/s what Ben Franklin told me. "...If you can keep it."
 
Why sell? Find a place to store the guns in VA. Problem solved.
Click to expand...
That works for guns he already owns, but not for anything that would tickle his fancy later on and he'd want to purchase.

And it only works for something like a storage locker or deposit box.

If that "someplace" means giving them to a friend to "store" then that gets into a whole 'nother can of worms because now that's an interstate transfer of firearms between non-licensed individuals.

That being said, it would be a very interesting trick...because the trust could buy guns.
Click to expand...
Ownership and possession are related, but not the same. Read Frank's post 7 again. The trust can't really own anything. The trustees do, "in trust."

Besides, you as a private citizen can own a gun elsewhere, trust or not, but taking possession of it is a different matter. That's the "transfer" and that's what you need to fill out a 4473 for. I can make out a bill of sale to sell you a pistol and you can send me money and I can send you a receipt saying this gun is yours. That's perfectly legal. But you can't come and take possession of it without going through an FFL dealer, and since it's a pistol, that dealer has to be in your home state.
 
This is now, and will remain, solely an exercise in thought.

Mods, I get that this train of thought is pushing HighRoad standards - I don't want to do that. Feel free to delete this post, but if you do, please send me a pm.

One last try, then I promise I'll let this idea die. This one I wouldn't be able to do financially (and wouldn't do it if I could) because I'm sure at some point I'd get burned by the strawman argument.

Would it be possible to live in MD, own a business in VA, The business would be the settlor, an employee (a resident of VA & possibly the CEO of the business) would be the trustee (with the ability to purchase and sell using FFL's as required by existing law) and the terms of the trust set to allow me access to the firearms governed by the trust while I'm in VA? Or, would I be legal to access the firearms as owner of the business? Or, would I skip GO and go directly to jail?

It's not that I'm trying to skirt the law. The other side is attempting to ban ammo because they can't ban the gun. Fight fire with fire.
 
1894 said:
...Would it be possible to live in MD, own a business in VA, The business would be the settlor, an employee (a resident of VA & possibly the CEO of the business) would be the trustee (with the ability to purchase and sell using FFL's as required by existing law) and the terms of the trust set to allow me access to the firearms governed by the trust while I'm in VA? Or, would I be legal to access the firearms as owner of the business? Or, would I skip GO and go directly to jail?...
Click to expand...
And at this point you've gone beyond what we can help with here. If you really want to explore this kind of thing you need your own lawyer.
 
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