Why Do I Need an NFA Firearms Trust?
By David M. Goldman
No CLEO Signature Required
The ATF requires that all individuals obtain approval from their chief law enforcement officer (the CLEO) as part of the application process to obtain a Title II firearm from another individual or Class 3 dealer. Many CLEOs around the country are refusing sign or even acknowledge the ATF forms. There is no legal remedy in most states to force the review of these forms. If using an NFA firearms trust to purchase a weapon, Form 4 does not require the CLEO’s signature.
No Fingerprints or Photographs Are Required
When using an NFA firearms trust to acquire Title II firearms, no fingerprints or photographs are required. This is a cost savings and can also significantly decrease the time required to take possession of the items. Often fingerprints have to be retaken because they are not acceptable for the FBI’s criminal database.
Individuals who submit their ATF forms to their CLEO are often concerned about who will have knowledge of their firearms. They also express concerns that they will come under additional scrutiny because the police will have knowledge that they are in possession of these more restricted firearms. With an NFA firearms trust, neither the CLEO nor the police are given notice that you will be in possession of or own the NFA firearms.
If you become incapacitated your family or friends are the ones who step forward to help you. In doing so, they may come in contact with the restricted items and put themselves at risk of violating the NFA without knowledge. An NFA firearms trust help protect these individuals from violating the NFA by providing them clear instructions on what they are and are not permitted to do.
When you die your individually owned firearms will be part of your “probate estate.” Probate proceedings will be necessary to transfer your guns under your will or to your heirs and are part of the public record. Because a family member or a friend usually handles probate proceedings, it is important not to unknowingly place them at risk of violating the NFA. With an NFA firearms trust, your firearms are not subject to probate or public record. Your beneficiaries will be protected because they will receive guidance on how and under what circumstances the items can be legally transferred to others. If you have children, an NFA firearms trust has specific provisions to protect them and make sure they do not receive the property if they live in a location where it is illegal to possess NFA firearms, and most importantly they are mature and responsible enough that you would want them to have the firearms.
Co-Owners and Authorized Users
If an individual purchases Title II firearms then he or she is the only one permitted to use or have access the firearms. Many people incorrectly believe that it is ok to let others use their NFA firearms when in their presence. However, the NFA would consider this a transfer and be a violation of the law. When your spouse or someone else knows the combination to your firearms safe, you may be violating the restriction on letting others access or possess your firearms. Improper possession through constructive possession is a form of unauthorized possession, and a violation of the NFA. If you use an NFA firearms trust to purchase Title II firearms, you can designate additional owners and authorized users. You can eliminate the risk associated with an improper constructive possession with a simple signature authorizing that person to be in legal possession of the items. This can help protect you and your family from the penalties of violating the NFA.
Reducing Risk of Legal Changes
Many groups are attempting to limit the ability to transfer firearms to their family or friends. With an NFA firearms trust an adult child, family member, or friend can be made a co-owner of the trust. While the ownership of the NFA firearms trust can be changed, the NFA firearms trust is still the registered owner of the firearms and no transfer has taken place under the NFA.
Penalties for Violating the National Firearms Act can be Severe.
Each violation of the National firearms act subjects the owner to forfeiture of all weapons, 10 years in prison, and fines of up to $250,000. An NFA firearms trust provides guidance to the creators, managers, and beneficiaries of the trust to help them avoid violating the NFA.
Benefits of a NFA Firearms Trust Over a Corporation or LLC
Corporations and LLCs have annual fees associated with them. Business entities are not private and much information about the individuals associated with them is contained in public records. Corporations and LLCs have annual state fees and other costs associated with the maintaince of the entity. Often business entities are subject to the requirement to file sales tax and income tax returns. If you already have a business entity that is used to purchase NFA firearms, the business is at risk if the managers or anyone else ever misuse a firearm. Each manager of a corporation of LLC can purchase firearms and subject the entity to the penalties for violating the NFA. To make a change to the people authorized to use, purchase, or possess the firearms, the secretary of state needs to be updated with the changes in the management of the company. This can cost money and take a substantial time to complete. In addition, business entities do not deal with incapacity or death like an NFA firearms trust does. Unlike with a corporation or LLC, an NFA firearms trust does not require any annual recording fees and documents do not need to be filed with the state. To make a change to an NFA firearms trust, one simply amends the trust to change who can use, purchase, or possess the firearms without risk of criminal liability for violating the NFA.
Benefits of a NFA Firearms Trust over a Revocable Trust
There are more than 50 differences between a traditional trusts and an NFA firearms trust. Only a few of the issues will be discussed here. Most trusts do not instruct how to purchase, who may use, or who may have access to Title II firearms. They also do not give the people involved with the trust enough information to properly sell or transfer assets. If you become incapacitated, it may be necessary to sell some assets. When you die, these restricted firearms need to be transferred properly. An NFA Firearms trust provides information to determine if:
- it is permissible to transfer the items;
- the items are legal in the state where they will be transferred to;
- the beneficiary is legally able to be in possession of or use the firearms; and most importantly
- the successor trustee is given the ability to determine in their own mind, if the beneficiary is mature and responsible enough to receive the firearms.
A normal trust allows the trust to be revoked even if it’s assets become illegal upon revocation. Also a normal trust allows a trustee to resign while they are still in possession of restricted firearms. A trustee may also find that with a normal trust, an agent acting under a power of attorney may take actions that are in violation of the NFA and subject them to criminal penalties.
Most people using traditional trusts purchase NFA firearms incorrectly. They usually purchase them as an individual and then transfer the weapons into the trust. Although the ATF may approve a transfer from the dealer to the trust, they never approved an individual transfer from the dealer nor a transfer from the individual to the trust.
Many free trusts on the Internet or from other sources have been found to be invalid. Lately we have seen many dealers and manufactures providing trusts to customers or helping them to fill out the trusts in order to purchase firearms. The problem with using an invalid trust or one not signed correctly or at trust that is not complete is that the trust does not exist. If the trust does not exist, even if the ATF approves a transfer to the trust, you will be illegally in possession of the firearm and subject to the penalties of the NFA. Even valid trust have substantial problems with dealing with incapacity, death, and transfer of the firearms as they instruct the trustees to take steps that create liability to the beneficiary put the assets at risk of seizure, and put both the trustee’s and beneficiary at risk of the penalties for violating the NFA.
© Copyright 2010, American Bar Association.