It's great to have a place to talk about legal subjects that affect our gun ownership and gun rights. Be very careful of DIY solutions or things you read on the Internet. Law is rarely simple, and trust law is way more complicated than most people realize. If you read this post, you will understand as I do that a trust for guns is NOT the same thing as a conventional living trust. My professional opinion is that you should generally not combine the two.
Like Keith Wells, I am a Washington trust attorney also licensed to practice in Oregon, Alaska, before the Federal Bar and the IRS. I have studied trust law for 23+ years, teach locally and nationally, and actually have published systems out there in use by other attorneys. This area of law is not "simple". The things Keith wrote about so well are worth reading.
Trusts for guns were unknown to me up until about 18 months ago. One day, in a gun shop, I found out that I could own (gasp!) a silencer... but not legally shoot one. I learned that an entity could apply for a tax stamp without requiring me to risk going through my local sheriff first, giving up privacy and risking a rejection. Better, one of my favorite entities, the living trust, seemed ideally suited to help me out since it is not registered, does not pay separate income tax as designed, and is easy to change. I design trusts for WealthCounsel, LLC, supporting about 1300 law firms nationally so decided to build a gun trust.
During these last months I have done online and legal research, have talked to the BATFE, and have talked to gun shop owners and manufacturers who know how things work. The inescapable conclusion was that there are serious issues with ANY conventional living trust, from the worst to the best, used to own firearms. BATFE approval for a tax stamp aside, guns are not like stock certificates.
Mere access to a firearm by prohibited persons can lead to state and federal felony charges. Some people cannot have access to firearms even if not convicted of a crime... Know anybody that drinks too much or that uses controlled substances, for example? How about somebody that has a domestic violence past... and the combination to your gun safe?
I don't know about you, but I am married and my wife does not particularly like firearms and she is not comfortable with them. She has no idea what the law is with respect to silencers or pistols or carbines should I die and she wants to sell it all off. She is not even interested in the subject... unless I do something that really gets her mad... then she wants to sell off ALL of my treasures, calling them "your crap". Wow. That hurts. I like my treasures.
Transfer of a firearm the wrong way, to the wrong person, without required federal documentation can all be a felony. Even the best living trust I have ever written is SILENT about these issues. Worse, trustee powers or even distribution directions in such a trust can encourage those I appoint to administer or receive benefits when I am not in charge can tacitly allow or encourage accidental commission of felonies.
I regulary see BATFE kick back trust applications. Quicken Trusts, LegalZoom Trusts, free gun shop or Internet downloaded trusts... even attorney-drafted living trusts. I see them come back all the time. Often it's because somebody did not fill in the blanks... but even if BATFE approves them, the issues set out in the prior paragraph remain as ticking time bombs.
I wrote my first gun trust for myself and it was approved by BATFE without a hitch. (Well, my Form 4 got rejected because I submitted it on two pages instead of one, but that is another story). The more I tweaked the trust the more stunned I was to see how a conventional living trust has Trustee powers and instructions in it that create danger for Trustees and Beneficiaries alike. Normal trust design is way too broad for application to guns. If anybody wants specifics, or horror stories that are true, let me know. In fact, one of the moderators told me that a Forest Ranger (Law Enforcement) asked him to prove that he was in legal possession of a silencer today! I have similar stories from lots of people AND from officers I know. These include Seattle Police, Bothell Police, King County Sheriff's Office, Whatcom County Sheriff's Office, and a number of others.
If you are interested, you can learn a lot from
www.guntrustlawyer.com which is operated by my colleague, David Goldman, in Florida. Just like me, he will tell you stories and give you the facts on why a real gun trust is probably a better investment to protect your firearms, yourself, your friends and beneficiaries. I am a believer too. I will be happy to answer general questions about individual applications vs. the use of corporations, trusts, LLCs or other entities to acquire NFA firearms like silencers. My friend and fellow attorney Keith Wells, will too.
If anybody got a trust kicked back, did a DIY trust or got a free one at Ye Old Silencer Shop causing you to lose sleep at night, or if you want more information feel free to talk to me or to Keith Wells. ASK AWAY! We are happy to answer what we can.
Keith and I stand ready to help any forum member come to a better understanding of the pros and cons of each approach. The goal is for each of us to make a good individual choice on how to proceed, willing to be held accountable for our decision. It's kind of how I look at the Second Amendment - I have rights, I have freedom, but I am also accountable for my actions. That's why I also believe in firearms training for concealed carry, managing confrontation, managing a scene after one occurs! Being a good shot is the easy part compared to all of that.
Dennis Brislawn, J.D.
The Original "GunDocx" Attorney