Firearms in a revocable trust

[PWC]

Good thread on NFA arms and gun trusts here.

But what about non NFA firesrms in a "normal" trust to beat probate? Hopefully the trustee is/will remain not a prohibited possessor and desireous of having firearms or redistributing them.

Are there any legal things to watch out for to protect the trustee, inheritors and keep the gov't away?

 

[D.B. Cooper]

I've been thinking about this a lot too. First of all, I'm not a lawyer. I didn't even play one on television. And I didn't sleep in a Holiday Inn last night. You should always seek professional legal advice. (I did. It was expensive and worth it.) What I write here is based on my own experience with a revocable trust.

My first question is why would you put your guns into a trust as opposed to putting them in your will?

With a trust, you can put certain limitations on what the trustee can do with the guns.

A revocable trust for your guns will allow you to direct a third party to hold onto and maintain your guns for an heir, if said heir is not old enough to take possession at the time of your death or if said heir doesn't want them.

This differs from a will in that the guns (or any other property for that matter) are preserved for a time in someone's care as opposed to going immediately to your heir. For example, if I just leave my guns to my son, he will simply sell all of them and buy video games. If I leave them to another family member (my cousin in my case) they become his property and leave the possession of my immediate family forever. He leaves them to his sister's kids and that's the end of that.

As far as legal things to protect the trustee? From what do you believe you need to protect the trustee? As long as your guns are all legal to own and the trustee meets all of the requirements to own them, you shouldn't have any issue.

HOWEVER...

If your trustee lives in a state that passes new gun laws after your death, he or she will be legally required to follow those laws, and there will be a legally documented and recorded list of every firearm and serial number. SO...If an assault weapon ban passes that requires turn in/buy back, your trustee will be required to adhere to those laws. In the case of a state ban, your trustee may be be required to either adhere, or relocate the guns to another state. If your state passes storage laws (e.g. guns must be kept in a safe-as we've seen in Australia and England) your trustee will be required to go to the expense of adhering to that law. (It is possible for you to set up a bank account in the name of your trust with some funds specifically for the costs associated with maintaining your guns or adhering to such new laws.)

Conversely, if you simply put your guns into a will, the person who gets them can do as they wish with them, including selling guns rather than complying with the regulations if/when they change.

With a will, you can avoid the creation of a list of your guns by simply leaving "all my guns" to whomever you choose. For example, my dad left me "all his tools" (that was the verbiage in his will). He didn't inventory every single tool he had acquired during his 50-year career in his will. However, if you choose to distribute your guns to numerous people, you'll have to create a list (Jimmy gets my shotgun, Jenny gets my 22 etc etc.)

Lastly, a word about probate. You want to avoid this like the plague. The only people who win in probate are the lawyers. You can avoid this by seeing an attorney who specializes in estate planning and expressing your wish to stay out of probate. They know all the tricks to this, and the secret is having a solid, legal, non-contestable plan for your estate. We did this with my mom before she died. It cost several thousand dollars but it was money well spent.

 

[AlexanderA]

In my opinion, trusts are being overused in the gun world. People are creating trusts, that normally would never have dreamed of doing so.

 

[D.B. Cooper]

In my opinion, trusts are being overused in the gun world. People are creating trusts, that normally would never have dreamed of doing so.

You might be right. Speaking for myself, if I had someone to immediately leave my guns to in a will, I'd go that route.

 

[JTHunter]

At this time, the grand-nephew that I intend to have my "collection" is only an "early teenager". Considering that half of said collection is handguns, he has few years to go and I question my "durability". While I have a trust that a lawyer set up 2 years ago, the guns weren't specifically referred to in it. As I have pictures with brief descriptions saved to a Word document, I have printed those three pages and put it in the binder for the trust with specific instructions that they are for the nephew. As I frequently drive an elderly parent to various doctors or events, it isn't inconceivable that we could both go at the same time in an accident. The big problem there is that I am the executor for that parent as my sibling lives over 200 miles away.

 

[PWC]

We established a blanket trust years ago, and "everything" we own jointly and individualy is in the trust. There are no lists of what's there in the trust, but there are lists of what heirs have expressed an interest. Some things are not listed. Anything acquired since is automatically included in the trust.

We chose a trust over wills, specificaly to avoid probate. A will=probate and average settlement time is 2 yrs as opposed to immediate trust.

I don't live on NY or NJ, but I want to make sure the law can't interfere with normal inheritance or bequethment.

 

[AlexanderA]

We chose a trust over wills, specifically to avoid probate. A will=probate and average settlement time is 2 yrs as opposed to immediate trust.

Comments:
1. It's not an either/or proposition. You can have both a will and a trust. Assets placed in the trust are taken out of the probate estate.
2. A will does not necessarily have to be probated, if there are no assets in the probate estate.
3. Depending on the family situation, the best solution might be for assets to pass outside of probate and outside of the trust. Examples would be joint ownership with right of survivorship, insurance proceeds, survivor pensions, etc. Things like houses and cars generally pass this way.
4.The probate process is often depicted as a huge hassle. It's not. In many cases you can probate a will without the assistance of a lawyer.
5. I would not list guns specifically in a will, because probated wills are public records. (Trusts are not.)
6. The list of people that you want to inherit from you is a very fluid thing. The prime example is divorce, but there are all kinds of other falling-outs among family members. You need to be able to review the choices periodically.
7. For many people, therefore, not having a will or trust at all is a viable choice. The state has a list of those who would inherit under intestate succession. If you're OK with that, you don't have to do anything.

 

[george29]

Revokable trust = still your property whilst alive.
Irrevocable trust = belongs to the trust even whilst alive.

 

[Frank Ettin]

Revokable trust = still your property whilst alive.
Irrevocable trust = belongs to the trust even whilst alive.

That’s not accurate.

• A trust is not a legal entity and cannot own property. Legal title to property in trust is held by the trustee, subject to the terms of the trust.
  
• A revocable trust (a living trust) may be terminated or modified by the settlor during his lifetime without the consent of contingent beneficiaries.
  
• However, the settlor requires the consent of the beneficiaries to terminate or modify the terms of the trust.

That’s just a simplistic overview of a complex, technical subject.

 

[Craig_AR]

That’s not accurate.

• A trust is not a legal entity and cannot own property. Legal title to property in trust is held by the trustee, subject to the terms of the trust.
  
• A revocable trust (a living trust) may be terminated or modified by the settlor during his lifetime without the consent of contingent beneficiaries.
  
• However, the settlor requires the consent of the beneficiaries to terminate or modify the terms of the trust.

That’s just a simplistic overview of a complex, technical subject.

1. This shows clearly why we need to get the RIGHT lawyer to advise us on firearms-related legal issues. Lawyers specialize, just like doctors. You would not go to an radiologist for a bowel resection; don't go to a corporate mergers and acquisitions lawyer for a self defense case, and don't go to a self-defense lawyer for an estate plan.

2. WRT revocable trusts for estate planning, we went to a law practice that specializes in that area. They provided us with a combination of a revocable trust, a living will for end-of-life decisions, a pour-over will that works in conjunction with the trust for any items in the estate inadvertently left out of the trust, and a set of instructions on how and what to formally move from personal ownership into the trust (e.g. real property and financial accounts). And yes, the language of the trust is such that it includes physical property not specifically listed, so our firearms are included, just like our furniture, jewelry, etc.

3. Reminder, as mentioned above, Gun Trusts for NFA items are a separate subject from estate-planning revocable trusts, and should be handled by a lawyer specifically experienced with NFA gun trusts.