Gun Owners Beware: Your Heirs Could Go To Jail Without Estate Planning

By Stephen J. Silverberg
New York Elder Law Attorney

More of your neighbors own guns than you think; yes – even in suburban Long Island’s North Shore. However, unlike other parts of the county where gun ownership is more public, transferring firearms upon death is rarely a part of anyone’s estate plan.

If you own a gun or a gun collection and you die without proper planning for your firearms, your heirs may unwittingly commit a felony: gun ownership without a license. It is probably not something you want your family to remember you for, and not a burden you want to place on your loved ones.

To be clear, New York State prohibits the manufacturing, transporting, disposing of, or possession of an assault rifle, which includes any semi-automatic rifle with a pistol grip or silencer, a telescoping or folding stock or a magazine that holds over five rounds of ammunition. The law also applies to semi-automatic shotguns and pistols with similar features. Even when a weapon was legally purchased before January 15. 2014, the effective date of New York’s law, it is illegal to sell, exchange or dispose of the weapon to a New York resident. Ownership can only pass to an individual authorized to possess such a weapon outside the State of New York. A Gun Trust WILL NOT allow you to skirt New York law.

A Gun Trust is the best way to dispose of any weapon without running afoul of New York’s stringent gun laws. It also assures compliance with federal statutes and prevents the weapon from falling into the wrong hands. A Gun Trust helps prevent acts of violence with your weapon.

To create a Gun Trust, we create a revocable or irrevocable management trust used to take title to firearms. The revocable trust is more common as it allows for more flexibility during the lifetime of the grantor.

A Gun Trust simplifies the legal transfer of a weapon upon the death of the grantor even to a member of your immediate family member. The person receiving the gun, the transferee, must go through the required background check and identification process before they may legally take possession of the gun. The grantor needs to name two people qualified to receive the weapon in case one of them does not pass the background check and ID process. Even the trustee of a Gun Trust must submit to a background check.

An incapacitated person may not own a firearm. If the owner of a single gun or a collection becomes incapacitated and there is no spouse or another person eligible to possess the guns, the person taking possession of the firearms may be committing a felony.

By putting the firearms in a trust, the successor trustee would then take possession upon the incapacity of the grantor and can distribute or keep the firearms, depending upon the legal intentions that the grantor has expressed in the trust document.

Establishing a Gun Trust shows your commitment to responsible gun ownership. If you are a gun owner with a legally owned gun or a firearm collection, we can help you.

About the Author
Stephen J. Silverberg is nationally recognized as a leader in the areas of estate planning, estate administration, asset preservation planning, and elder law. He is a past president of the prestigious National Academy of Elder Law Attorneys (NAELA), and a founding member and past president of the New York State chapter of NAELA.