Ownership and possession of firearms is heavily regulated. As a result, many people unknowingly violate the law.
Transfer of Guns as Part of a Decedent's Estate
Even experienced attorneys sometimes fail to give adequate attention to the transfer of firearms as part of a decedent's estate. Some of the restrictions and requirements established under state and federal law exempt transfers of firearms by inheritance, but most provisions of these laws will still apply. Transfers may require a background check and completing state and federal forms. These rules apply to both hand guns and long guns, and can complicate the liquidation of an estate.
Transfer on the books of a licensed dealer can be difficult to arrange. Many licensed dealers do not wish to become involved in the transfer of a firearm they did not sell as part of their business. Those that do will charge a premium for the transfer service. Many dealers will offer to "buy out" an entire collection, but will offer a fraction of the value of the collection.
Prohibited Persons: Individuals who are prohibited from possessing firearms or ammunition
Both Federal and Colorado laws specify very broad categories of individuals who are prohibited from possessing firearms or ammunition. Such people are referred to as "prohibited persons." If the person designated to receive your firearms is a prohibited person, it is a crime for your personal representative of Trustee to deliver a firearm to such a person. Worse still, what if your personal representative or Trustee has a criminal record or is otherwise a prohibited person himself? Even if criminal liability is not an issue, it can be very time-consuming to try and recover a firearm from a prohibited person, and explain how such an error was made.
Prohibited persons include many people one would not necessarily think of as being under any sort of legal disability. Examples of those who are deemed by law to be "prohibited persons" include:
- Anyone under the age of majority.
- Any person who is an unlawful user of, or addicted to, any controlled substance.
- Any person who has been admitted to the United States under a nonimmigrant visa.
- A person who has ever been adjudicated as an incompetent, or has ever been committed to any mental institution for inpatient care and treatment. The commitment could have occurred briefly any number of years ago; the legal disability has no time limit.
- A person who is the subject of an active protection from abuse order, if provided for the relinquishment of firearms during the period of time the order is in effect.
- Any person who has ever been discharged from the Armed Forces under dishonorable conditions, for any reason.
- Any person who, having been a citizen of the United States, has renounced his citizenship.
- Any person who has ever been convicted of a misdemeanor crime of domestic violence (simple assault on a spouse).
A particularly troubling source of disqualification is the conviction of a crime punishable by imprisonment for a term exceeding one year. This type of disqualification will attach to an individual convicted of such a crime, regardless how old the conviction, and without regard to whether the sentence was actually imposed or served.
Problems Transporting Firearms
There are also special problems pertaining to transportation of firearms. Colorado law makes it a crime to transport firearms in vehicles other than in specified ways. Federal law and internal policies of shippers will also restrict shipment or receipt to or from individuals in other states. Although federal law generally precludes one who does not hold a federal firearms license from sending or receiving firearms from out-of-state, there are some special rules for receiving firearms from out-of-state by bequest.
Surviving family members will sometimes divide up and hand out the gun collection before probate, not realizing they are committing one or more state or federal crimes in the process. This can present thorny ethical problems for legal counsel when the unlawful transfer of the firearms eventually comes to his attention, and there are still tax returns and declarations to make.
At Law Offices of Karen Brady, we can help you plan properly for your firearms. If you have an estate that involves firearms or ammunition, give us a call.