By Julia M. Lindeman – Three60 Law Group PLLC
Regardless of your individual stance on the Second Amendment, at some point we may represent clients who own firearms. As trusted members of their advisory team, we have a responsibility to advise our clients on the correct way to plan for the safe administration of these firearms after their death. Regardless whether your client wishes to bequeath firearms in trust, outright to a variety of beneficiaries, or simply at the discretion of the executor, it is important to be knowledgeable of the applicable state and federal statutes and regulations so that you can build a truly custom estate plan that provides a roadmap for a smooth probate administration process with respect to these firearms after her death.
The Statutes
Let’s begin with a quick summary of the main statute at play here: RCW 9.41.113, also known as the Firearms Transfer Act. This statute provides that when either the seller/transferor or buyer/transferee is in the state of Washington at the time of the transfer, all firearms sales or transfers must be conducted by a federally licensed firearm dealer. If neither of the interested parties is a licensed firearm dealer, the parties are required to hire one to facilitate the transaction. Unless specifically exempted by state or federal law, prior to the sale the firearms dealer will facilitate a National Instant Criminal Background Check System (NICS) background check for the transferor and transferee. Bona fide gift transfers between immediate family members, sales or transfers of an antique firearm, transfers or sales to a law enforcement agency, or temporary transfers in life or death situations are a few of the exemptions from these requirements.
As of the date of this article, Congress has not expressly preempted state or local law regarding firearms or ammunition regulation. However, one must still consider how federal law interplays with the laws of the decedent’s state. For example, the National Firearms Act (NFA) is a federal tax law that imposes a mandatory tax and registration requirements on all firearms covered by the Act, and any transfers that do not meet this federal requirement would be illegal.
The Planning Phase
When your client wishes to transfer a firearm through a testamentary document, first advise her to think carefully about who she should select as the executor or trustee. This is because that fiduciary, in addition to his ordinary duties, will have the burden of ensuring that all firearm transfers are conducted pursuant to the requirements set forth not only in RCW 9.41.113, but also any applicable federal laws, such as the NFA mentioned above. Even if the fiduciary is a professional, if he is not a licensed firearm dealer, he should anticipate adding a licensed firearms dealer to his team of advisors during the probate or trust administration process. If your client owns a large number of firearms with a long list of anticipated beneficiaries, it would be prudent to either name a fiduciary who is already licensed, or if not licensed, specifically identify a licensed dealer in the document with whom the fiduciary is required to consult during the administration process and prior to making distributions to any beneficiaries. Adding this third-party consultant will also help the fiduciary with ensuring that all state and federal transfer laws are complied with.
Other planning considerations include providing adequate contingent or remainder beneficiary language in case the primary beneficiary becomes ineligible under the statute to receive the firearm. Care should also be taken on the planning side to ensure that the fiduciary is not inadvertently exposed to unforeseen liability when firearms will be assets of the estate. For example, because many fiduciaries are rightfully concerned about leaving firearms in a vacant residence, specific instructions on the handling of the firearms during this pre-distribution period should be made. If the fiduciary is concerned about theft, particularly if the firearms are rare, it is recommended that any such firearms be held for safekeeping by a qualified third party until final distribution. Expanding the “Definitions” section of the planning document to include state and federal definitions of key terms (e.g., “NFA firearm,” “gun,” “weapon,” etc.) is also a good idea.
The Probate and/or Trust Administration Phase
Now, even though you have thoroughly planned for your client and her firearms, the loop is not quite closed. The final phase comes at death. Your client has passed away, and the executor of her estate, who you now represent, comes to you asking about what to do with the firearms formerly owned by the decedent. He is asking questions about protection, cashflow, and expenses. He has also looked at the will or trust and is intimidated by the list of firearms specifically bequeathed to a rather large number of individual beneficiaries. But don’t worry, you tell him – it’s all navigable waters. Because you have done such excellent planning, the document includes specific instructions on the handling of the firearms prior to distribution and compliance with state and federal statutes with respect to the distribution of the firearms to the intended beneficiaries. The fiduciary has the tools in his toolbox to deal with the firearms safely, cleanly, and exactly how the decedent intended.
If the fiduciary discovers weapons in the residence and is concerned about liability associated with the legal status of the weapons or safely keeping the weapons in the residence during administration, he should contact local law enforcement. Though policies will slightly differ depending on the jurisdiction, a police department may temporarily hold the guns for safekeeping until a qualified third-party broker is found and will handle the destruction of any illegal weapons.
In summary, two of the most important tools that fiduciaries have are 1) an informative document and 2) knowledgeable counsel on their team. By providing both of those things with respect to firearms, you have done a great service by ensuring a relatively smooth and cost-efficient probate process as to these potentially troublesome assets.
[1] RCW 9.41.113(2)(a).
[1] RCW 9.41.113(3).
[1] RCW 9.41.113(4)(a)-(i).
Originally published in the Washington State Bar Association Real Property Probate and Trust Newsletter Fall 2018.