The person who owns a copyright is sometimes referred to as having “title” to the copyright. A “title” is the document that establishes ownership to property, like the title to your car or house. But even in the absence of an official document, the owner of a copyright is often said to have title to it. Just like title to your car or house, title to a copyright can be sold or otherwise transferred. A person or company can have ownership (title) of a copyright transferred to it by means of an assignment (a sale in which all or part of a copyright is transferred) or through a will or bankruptcy proceedings. Since title to a copyright can be transferred, you may have to search copyright records to determine the current owner of a work you want to use. There are two ways to determine if copyright ownership has been transferred: by reviewing the copyright registration certificate issued by the Copyright Office, or by locating an assignment or transfer agreement. By reviewing the copyright registration certificate, you can find out who currently claims copyright and on what basis. For example, if a publisher has been assigned copyright to a work, it will file a copyright registration in its own name and indicate on the registration that it acquired copyright through a legal transfer. Also, many companies file the agreement that establishes the assignment, license, or transfer with the Copyright Office.
A Gun Trust is a way to avoid the transfer process described above. The Trust is an entity you create that holds the title to your firearms. You can name multiple trustees, who then share the right to possess and use the firearms covered by the Trust. Since the Trust stays in effect after your death, the executor of the estate isn’t involved, and the firearms don’t have to go through probate. Trusts are not intended to circumvent the law. However, some gun owners believe a Trust might help get around any future laws prohibiting transfer or inheritance of certain weapons. While a simple Revocable Living Trust generally ends once your assets are distributed after your death, a Gun Trust can be designed to last for multiple generations, and it must take federal and state gun laws into account. To create a Gun Trust, it’s essential to work with an attorney very familiar with the laws governing the use, possession, and transfer of weapons in your state. For example, you wouldn’t want to name a trustee who is prohibited by law from possessing the firearms, for example. Gun Trusts are useful for people who want to share the use of their weapons with others during their lifetime. But recent ATF rules have removed some of the advantages of a Gun Trust for inheritance purposes. Carefully consider the advantages and disadvantages before setting up a Trust; don’t fall for aggressive lawyers’ sales pitches without doing your own research and/or getting a second opinion.
Why you Need a Gun Trust?
If you’re not a gun collector, you likely haven’t heard the term “gun trust.” Even if you are, you may not understand what a gun trust is, how it works or how it can be of use in an estate plan. A gun trust is the generic name for a revocable or irrevocable management trust that is created to take title to firearms. Revocable trusts are more common, as they can be amended and changed during the lifetime of the grantor. Although any legally owned weapon can be placed into a gun trust (and we’ll get into why that could be a good idea later), these trusts are specifically used for weapons that are classified under the National Firearms Act (NFA) Title II of the Gun Control Act of 1968. Examples of Title II weapons include a fully automatic machine gun, a short-barrelled shotgun or a suppressor, sometimes called a “silencer.” The latter is a common piece of equipment that is purchased and owned by a gun trust. The trust is actually the owner of the firearm or suppressor.
Gun Trusts Provide Legal Protections to You and Your Heirs
So why might a gun trust become a necessary part of an estate plan when the grantor owns NFA designated Title II weapons? One obvious reason is that the transport and transfer of ownership of firearms that are so heavily regulated can easily become a felony without the owner even knowing they are breaking the law. A gun trust allows for an orderly transfer of the weapon upon the death of the grantor to a family member or other heir. However, the transferee must go through the background check and identification process before taking possession of the firearm. That means the grantor should name as the final beneficiary a person or entity they know will be able to accept the weapon if the initial designated heir cannot, due to failure of the background check. There are other reasons a gun trust can make sense. For instance, an NFA Title II weapon, such as a suppressor, can only be used by the person to whom it is registered and no one else. Violation of this law is a felony. Simply letting a friend or family member fire a few rounds with a Title II weapon at the local range or at the deer lease is a felony! A gun trust can be used to allow for the use of the Title II weapon by multiple parties. Each party who will have access to and use of the weapon must be a co-trustee of the gun trust and must go through the same required background check and identification requirements. It is worth noting that the vast majority of firearms purchased and owned by U.S. citizens are Title I weapons, such as ordinary rifles, pistols and revolvers, and not Title II. However, it is fair to assume that as gun sales increase, the purchase of Title II firearms will also increase, and the gun trust will be a valuable tool for those willing to go through the rigorous and lengthy process to legally obtain a Title II weapon. The process includes:
• The filing of the Bureau of Alcohol, Tobacco, Firearms and Explosives’ NFA Responsible Person Questionnaire,
• Submitting photographs and fingerprints when a trust or legal entity is listed as the transferee on an application to transfer an NFA firearm, and
• Paying the required ATF registration fee, currently $200.
Types of Weapons Held in Trust
Commonly, gun trusts are used for weapons that are regulated by two federal laws: The National Firearms Act of 1934 (NFA) and a revision of that law, Title II of the Gun Control Act of 1968. These weapons are often called NFA or Title II firearms. NFA weapons include machine guns, silencers, short-barrelled rifles, and short-barrelled shotguns (including sawed-off shotguns), grenades, and others. NFA weapons must have a serial number and be registered with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, commonly called the ATF or BATF. (If such a weapon isn’t already registered, you cannot register it; it is illegal to own.) They can be possessed and used only by the registered owner. To transfer a registered firearm, the owner must get ATF approval and pay a $200 tax ($5 for some items). Other federal laws also affect NFA weapons. For example, since 1986 it has been illegal to manufacture machine guns, and only those manufactured before that date may be legally purchased. (Firearm Owners Protection Act.) State laws may further restrict NFA firearms as well.
A Gun Trust Isn’t Just for Title II Weapons
For an owner of a large collection of firearms, it may make sense to transfer ownership of these weapons to a gun trust, even if the individual doesn’t own any Title II weapons. There are several benefits to doing this:
Protecting your privacy
First, most states require an executor to file an inventory of the probate estate. Probate inventories are public documents filed with the court and are available for anyone to see. All firearms included in an estate would be listed on the inventory, along with the market value of each item. A public document on file in the courthouse with a list of all firearms owned, as well as the value of each, may not be the best outcome for the heirs. If the firearms are owned by a trust, the firearms are not included in the probate estate and will not be listed on the inventory.
Allowing for the disposition of your collection
Second, if the collection has significant value and will be liquidated at the death of the grantor, a gun trust can also provide for the orderly disposition of the firearms by the successor trustee or remaining co-trustees. Depending on the language included in the trust, the proceeds from the sale of the firearms can be invested to provide an income stream to heirs or to charity.
Covering the possibility of incapacitation
Third, an incapacitated person cannot own a firearm, so if the owner of a substantial firearm collection becomes incapacitated and has no spouse or significant other who can legally possess the firearm, the person taking possession of the firearm could be in danger of breaking the law. If the firearms are placed into a trust, the successor trustee would take possession of the firearms upon the incapacitation of the grantor and can hold or distribute the firearms based on the grantor’s intentions and wishes, as outlined in the trust document.
Smoothing the way for your heirs
Lastly, the cost to create and administer a gun trust is relatively small compared with the potential negative consequences of running afoul of the complex laws surrounding the use and ownership of firearms, especially Title II firearms. Leaving a large collection of Title I weapons — or even a single Title II weapon — in an estate to be dealt with by an executor or trustee can be disastrous and avoidable with the use of a gun trust.
Using a Gun Trust to Pass on Firearms
Any gun owners have been hearing a lot about the benefits of “gun trusts,” which are specifically designed to hold ownership of firearms. Usually, these trusts are used for firearms that are subject to strict federal and state regulations, but they may include other kinds of weapons as well. Gun trusts can make it easier to handle firearms after the owner’s death—and may prevent surviving family members from inadvertently violating the law.
Crossing State Lines
Let’s say that in your Will you leave a collection of non-NFA guns to your daughter, who lives in another state. Federal law doesn’t prevent her from picking them up and driving them home across state lines. But she must comply with the laws of both her own state (and city) and yours pertaining to registration and transportation of firearms. For example, if her state requires a firearms permit, she will need to get one. It couldn’t hurt to research this you ahead of time and let her know the rules, since there are transport procedures to follow no matter where she’s driving. Keep in mind, though — and this is good advice for any transaction involving guns that laws are changing all the time. Does your research, stay informed, but if you have any doubt at all, consult a lawyer with knowledge of firearm laws. The last thing you want is someone you love getting pulled over for a routine traffic stop and getting booked for transporting firearms.
Federal and state laws forbid certain people to possess firearms. You can bequeath firearms to anyone you choose, but they will not be able to take possession of the guns if they are a “prohibited person” as defined by the ATF, or if they fall into certain additional categories that may be specified in the laws of your state. Prohibited persons under federal law include unlawful users of a controlled substance, people convicted of serious crimes or domestic violence misdemeanors, those judged “mentally defective,” and others. State laws impose additional restrictions. A record of specific felonies, violent misdemeanors, or mental conditions may disqualify people from owning guns. Some states restrict alcohol abusers from possessing firearms. Age requirements vary too; for example, minors (people under 18) may not possess firearms in California. If you’re in doubt, check with a lawyer who is familiar with your state’s gun laws and rights.
Sell or Surrender
If you have no interest in owning any of the firearms passed down to you, and the guns have considerable value, you can sell them to a licensed dealer — the same type we mentioned above to assist in transferring ownership. If you don’t care about the money and just want to get rid of them and make sure they don’t end up in anyone else’s hands again, you can surrender them to your local police department. While the rules for this vary depending on where you live, you should contact the station to find out the proper procedure before just driving down there with a bag of weapons. If you’re worried that you could get in trouble for even possessing or moving the guns, take a wild guess as to what we suggest you should do. Yep, check with a lawyer first. Have we said “check with a lawyer” enough times in this article? That’s because where guns are concerned, it really is a good idea, in any but the simplest of situations.
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506