Gun trusts have become quite popular in the last few years, especially considering the national discussion and controversy over firearms. Gun trusts have become so prevalent, in fact, that the Bureau of Tobacco, Firearms, and Explosives (“ATF”) has even controversially stepped into the fray to regulate them. As with most things floating about the national conversation, there is a lot of information on the internet pertaining to gun trusts, and much of it is dubious, at best.
Many states’ laws are such that the benefits of gun trusts are numerous. In those states, such as Pennsylvania, individuals may own certain National Firearms Act (“NFA”) weapons, such as silencers, short-barreled shotguns, and fully automatic weapons. In order to purchase these NFA weapons, however, the individual must go through ATF and present certain personal information, such as a photo ID, signature, and fingerprints, to the chief law enforcement officer (“CLEO”). As a legal entity, however, a gun trust has no photo ID, signature, or fingerprints, thus expediting and streamlining the process. Besides saving time, this can be useful for law-abiding citizens to obtain NFA weapons in locations where the CLEO may refuse to sign off on the required documentation.
New Jersey, unfortunately, is not one of those states. The weapons that most people desire to purchase and possess through a gun trust are generally prohibited in New Jersey. For example, silencers and short-barreled shotguns (referred to as “sawed-off shotguns” in New Jersey) are prohibited in New Jersey pursuant to N.J.S.A. 2C:39-3. Likewise, fully automatic and “assault rifles” are prohibited unless one is licensed by applying the Superior Court of New Jersey pursuant to N.J.S.A. 2C:58-5.
There are, however, other benefits to gun trusts. Besides streamlining the NFA purchase process in states where NFA firearms are allowed, the gun trust acts as a great way to transfer firearms from generation to generation, without worrying about going through probate (trusts are executed by the trustees, not the probate process). Trusts are also private, whereas a will is publicly available for anyone who may want to peruse them when executed. Thus, it is conceivable that someone could discover which of your beneficiaries inherited which firearm. To some, this is a concern.
In New Jersey, however, all firearms transfers require that the receiver of the firearm has a valid Firearms Purchaser Identification Card (“FID”) and that the seller or grantor signs a written statement that he or she has identified the individual. Importantly, these two requirements are waived when the transfer is “for the passing of a firearm upon the death of an owner thereof to his heir or legatee, whether the same be by testamentary bequest or by the laws of intestacy.” N.J.S.A. 2C:58-3(j). While a passive reading may seem to indicate that a trust would allow the passing of a firearm from the settlor (creator of the trust) to the beneficiary, this is not the case.
An heir is defined under New Jersey law as “those persons, including, but not limited to, the surviving spouse, the domestic partner and the descendants of the decedent, who are entitled under the statutes of intestate succession to the property of a decedent.” N.J.S.A. 3B:1-1. The term “legatee” is not defined in the New Jersey estates statutes, but is generally defined as one who receives a legacy, which is a bequest via will.
What this means is that, under a strict or literal reading of the statute, the property, or res, of the trust would not be excluded from the normal firearms transfer laws of New Jersey. A trust is, by definition and design, not a will. Because the language of the exception is strictly the language of the passing of property through a will and last testament, rather than more general language (such as the term “beneficiary”), any transfer via trust is going to require the beneficiary to have a valid FID and the “seller” to issue a statement that the receiver has been identified by the seller. If you are transferring any handguns, then you must follow the requirements for transferring a handgun.
An individual must also consider that in order to create the trust, it must be funded. This generally means that the settlor would transfer the property into the trust that he or she desires to be distributed to the beneficiaries at a given point in time. In most trusts, this is not an issue. However, when dealing with firearms, this means that all of the procedures required for the transfer of a firearm must be completed at the creation of the trust and then again on distribution. This also means that at least one Certificate of Eligibility will be required, resulting in the disclosure of information concerning the firearm and the individuals. For many firearms owners in today’s environment, providing the government with firearms information linking them to their individual firearms is akin to a firearms database, and they are understandably wary.
Thus, although it is not private, leaving your guns to your family (or any other individual) through your will and last testament is generally the best route in the opinion of Thompson Law Offices. State law specifically exempts this particular transfer from the normal transfer requirements, which should be a great relief in a state renowned for its strict adherence to the letter of its firearms laws.
In addition, the practical effects of the publicity of the will are not great. Most people are not in the habit of perusing executed wills and unless the will is contested, the probate process should be fairly low-key and streamlined, and at least not particularly public. For those individuals concerned with firearms databases or registries, while the information is considered public, it is not formalized, as is the case with the Certificate of Eligibility, which should provide some relief to those concerns.
Finally, you do not need to worry about the eligibility of your beneficiary to own a firearm, as state law allows 180 days for an ineligible beneficiary to dispose of the firearm to receive the property value of the gun. (Note that the statute states that the individual may retain ownership of the firearm, not possession). Thus, the burden is on the individual receiving the firearm to comply with the law, not the testator (person making the will).
For questions pertaining to the creation of a will concerning firearms, or additional questions regarding gun trusts in New Jersey, call for a consultation at (888) 866-6947. (Please note that there is a small fee for consultations on gun trusts).