Hillbilly Jim
Member
I know when I die my NfA items can be transfered [form 5] one time to a named individual.
My question can these items be transferred to a trust on a form 5?
My question can these items be transferred to a trust on a form 5?
Death of owner.
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medalguy
Member
The law states that the firearm/suppressor will be transferred to the next of kin on a Form 5. I don't think a trust would qualify but an attorney familiar with NFA goodies can give you a definite answer. Did you use an attorney to draw up your trust?
I think he's referring to NFA items he owns as an individual. If the Trust owns them then I think it has to go to the named beneficiary on the Trust. So I read it like he's talking about items he filed for as an individual where there is no defined beneficiary.
As medalguy said, an attorney would know but I would almost think that if you had a regular Will made out and listed your NFA items as going to a Trust that's already established, the ATF wouldn't be able to interfere with that. I know you can leave property in general to companies, I wouldn't think there is a distinction for NFA items, but my opinion doesn't mean much.
Edit: And if you can't do that, how else would it be handled if you are passing it down to your under age children and your spouse is deceased? You kind of need a Trust / Child sub trust for it to go to. Remember, just because it's a restricted item doesn't make it less of your legal property.
As medalguy said, an attorney would know but I would almost think that if you had a regular Will made out and listed your NFA items as going to a Trust that's already established, the ATF wouldn't be able to interfere with that. I know you can leave property in general to companies, I wouldn't think there is a distinction for NFA items, but my opinion doesn't mean much.
Edit: And if you can't do that, how else would it be handled if you are passing it down to your under age children and your spouse is deceased? You kind of need a Trust / Child sub trust for it to go to. Remember, just because it's a restricted item doesn't make it less of your legal property.
pjeski
Member
Can you provide a cite for that?
I see nowhere in 26 USC 5851–5853; 27 CFR 479.69, 479.70 and 479.88–93 that refers to transfers to heirs at all, unless it is covered by 26 USC 5852 "(f) Right to exemption No firearm may be transferred or made exempt from tax under the provisions of this section unless the transfer or making is performed pursuant to an application in such form and manner as the Secretary may by regulations prescribe."
This letter from the ATF: https://www.atf.gov/firearms/docs/t...earms-act-firearms-decedents-estates/download
says "A lawful heir is anyone named in the decedent’s will or, in the absence of a will, anyone entitled to inherit under the laws of the State in which the decedent last resided. NFA firearms may be transferred directly interstate to a beneficiary of the estate.
It's also covered in 9.5.3.1 of the NFA Handbook:
https://www.atf.gov/firearms/docs/atf-national-firearms-act-handbook-chapter-9/download
medalguy
Member
Sure, although I did mention "next of kin" I really should have mentioned "beneficiary of an estate", but then I'm not an attorney and subject to snakebite. It's also found in the instructions for the Form 5:
2a. Authority. As provided by USC 26 5812 and 5852, and 5853 any person seeking to transfer a firearm exempt from payment of tax must complete, in duplicate, an application on this form for each firearm.
2b. Exemptions from Transfer Tax. A registered firearm may be transferred without payment of the transfer tax if:
(4) it is being transferred to the beneficiary of an estate.
It's noted that in section d(2)(b) it does mention how to proceed if the transferee is an LLC or trust so that seems to answer the OP's question.
2a. Authority. As provided by USC 26 5812 and 5852, and 5853 any person seeking to transfer a firearm exempt from payment of tax must complete, in duplicate, an application on this form for each firearm.
2b. Exemptions from Transfer Tax. A registered firearm may be transferred without payment of the transfer tax if:
(4) it is being transferred to the beneficiary of an estate.
It's noted that in section d(2)(b) it does mention how to proceed if the transferee is an LLC or trust so that seems to answer the OP's question.
I am a bit hazy about trusts, but I thought a trust had to have members, not just one person. If so, and one member dies, an NFA item owned by the trust would not transfer at all, and would not be affected by one member's will or lack of it. The gun is not owned by that member who died it is owned by the trust which did not die. Or are there different rules for NFA items?
Jim
Jim
pjeski
Member
For that you have to ask the attorney that drafted the trust, or read the wording of the trust. Some trusts do not continue past the death of the grantor. Others may go on in perpetuity.
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