What happens to a MG if the owner dies?

[Tinker]

I'm curious. A scenario......

What if Joe Public goes through all the hoops and expense to own a machine gun. He has fun with it for a few years, but gets ran over by a herd of elephants on the way to work one day. Joe's wife collects the life insurance but could care less about Joe's full auto toy in the safe. Does the ATF just come get it? The local cops? Does it just sit in the gun safe? Thanks.

 

[MErl]

It is the property of the heir (once they transfer it tax free on a form 5) and they can do with it as they please.

 

[Tinker]

Merl,

Slight scenario change.....Joe and his wife bite it in an elephant stampede....So Joe's son (with this #5 form) can just keep on shooting the machine gun until he croaks one day?

 

[MErl]

Yep. Whoever is named in the will or otherwise inherits it gets it. They can use it, sell it, destroy it, whatever. The time between the death and the approved form I don't know about, probably just keep it in a safe during that time.

This is a big advantage of a trust is it immediately transfers within the language of the trust.

 

[Telekinesis]

Once the registered owner dies, the machine gun (or other NFA weapon) goes to the executor of the estate. At that point whoever gets the MG (per the will) fills out a tax free form 5. Once the form 5 comes back approved, the executor gives the machine gun to the heir. That person is now the legal owner of the gun and can do with it as he pleases. He can shoot it or sell it.

 

[Sam1911]

One thing I've always kind of wondered (but was afraid to ask because I'm not confident enough to admit that there are things I don't know ... ) -- the executor is then NOT in unlawful possession of a Title II firearm not registered to him/her? Assuming the form 5 doesn't come back in a few minutes, and might take months, the executor has a rather hot potato on his/her hands for a while, no?

 

[Telekinesis]

I have always been cautious about that issue myself. However, I had a friend pass away a few years ago with several machine guns in his collection, and his wife asked me and anoter friend to help with the firearms in his estate. We looked through the NFA handbook and called the ATF and they said that she could keep the guns with her seeing as she was the executor. I will note that this is a little different than the OP's example in that my friend's wife was both the executor and heir.

Also, if you look in the NFA handbook published by the ATF, they mention an executor being able to take a NFA weapon to an heir living in another state without the need to transfer it through dealers. Just drive it over and hand it to the heir (once the form 5 is approved of course). For that to be possible, the executor has to be allowed to possess the weapon even though it's not registered to him.

From a practical standpoint, as long as the executor keeps the gun in a safe and isn't going out to the range and shooting the MG, he likely wont have any issues.

I would expect that if questioned by the ATF, you would need to produce a copy of the original form 1 or 4 for the MG, the death certificate for the person who the gun is registered to, and a copy of the will that says you are the executor. That should cover the executor from a legal standpoint.

 

[Sam1911]

I would expect that if questioned by the ATF, you would need to produce a copy of the original form 1 or 4 for the MG, the death certificate for the person who the gun is registered to, and a copy of the will that says you are the executor. That should cover the executor from a legal standpoint.

I agree that it should, and that it almost must. I just was (am?) unclear on the exact legal principle involved.

I'm sure there's a legal term for that -- whereby something is illegal by statute, but another statute or part of the same statute creates a "bubble" wherein that thing must happen. I'll see if I can query our legal minds...

 

[JRH6856]

If the will is probated, the executor is acting under the authority of the probate court, which should give them adequate protection. It the will is not probated, I think it is still in the "bubble". Either way, as long as the executor acts according to law and transfers the property in a timely manner without making personal use of it there should be no legal problems. If the executor is the heir, they need to complete form 5 and wait for the response before he can exercise full ownership privilege and make use of it.

Since I am not a lawyer, I too, I'm interested in what the legal minds have to say.

 

[Aaron Baker]

Sam,

As an attorney, I can tell you that there IS a legal theory underlying this situation.

It's called: the ATF doesn't want to prosecute widows.

Technically, the widow is not lawfully in possession of the NFA firearm. She is not the individual named on the stamp. In fact, the estate of the owner isn't the entity named on the stamp either. But the ATF has never prosecuted in this situation--that's their policy.

I believe (but I could be mistaken) that part of the proposed regulations under 41P is some language that allows possession by executors.

This is one of the (technical) benefits of a trust. The trust names successor trustees who are legally allowed to possess the firearm during the time it takes the Form 5 to process. With a well-drafted trust, there's no issues with there being no one who can legally possess the firearms during the period after the death of the trust's grantor. In practice, it's not necessary to have a trust just to avoid this non-issue. (There are other benefits to trusts, of course.)

Aaron

 

[Frank Ettin]

...I can tell you that there IS a legal theory underlying this situation.

It's called: the ATF doesn't want to prosecute widows.

Technically, the widow is not lawfully in possession of the NFA firearm. She is not the individual named on the stamp. In fact, the estate of the owner isn't the entity named on the stamp either. But the ATF has never prosecuted in this situation--that's their policy....

Sam asked me to have a look, and I found some interesting material.

There's this 1999 letter on ATF letterhead (emphasis added):

...We may lawfully provide registration information to the executor of an estate. If there is any question regarding the registration status of the firearms in the estate for which you are assisting the executor, advise the executor to contact the NFA Branch directly and provide proof of his or her appointment as executor.

If there are unregistered NFA firearms in the estate, these firearms are contraband and cannot be registered by the estate. The executor of the estate should contact the local ATF office to arrange for the abandonment of the unregistered firearms.

For registered NFA firearms in the estate, the executor should take action as soon as possible to arrange for the proper registration of the firearms. Possession of an NFA firearm not registered to the possessor is a violation of Federal law and the firearm is subject to seizure and forfeiture. However, we do allow the executor a reasonable time to arrange for the transfer of the registered firearms in a decedent’s estate. This generally should be done before probate is closed.

It is the responsibility of the executor of the estate to maintain custody and control of the firearms and to transfer the firearms registered to the decedent. The firearms may not be transferred to another party, such as a firearms licensee, for consignment or safekeeping. This would be a transfer subject to the requirements of the NFA....

I also found this article, "Fiduciaries and Firearms -- Dealing with Guns in Estate Planning and Administration", on an attorney site by an estate planning lawyer:

.... If the decedent had lawfully possessed an NFA weapon, the executor must have the registration and tax documents. The Federal regulations allow an executor a "reasonable time" (generally, before the estate is closed) to transfer a lawfully possessed NFA weapon to an heir or beneficiary, provided that the recipient may lawfully possess it. The transfer must be made in accordance with all federal and state laws and must be properly documented. ...

...

If an executor has any NFA weapons and he cannot find any documentation, he should consider contacting the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) to find out if they were properly registered. If they were not, the executor should arrange with ATF for their "abandonment." Failure to comply with the regulations could have serious consequences for the fiduciary. Mere possession of an undocumented NFA weapon could result in confiscation of a car or house in which it was found. Other punishments may be even more draconian. For more information on Class III and NFA weapons, please see the materials on our website: www.CTGunLawyer.com and also David Goldman's site, www.guntrustlawyer.com....

 

[Sam1911]

Great insights, guys. Thanks!

 

[Jim K]

Well, in no way are the regulations determined by BATFE not wanting to prosecute widows. That, as an attorney should know, is not up to BATFE anyway, but to the U.S. Attorney.

In fact, BATFE regulations have pretty well reconciled two issues - the laws on inheritance, and the NFA, whose original text never mentioned inheritance or the death of an owner. The BATFE web site has a good explanation of the process.

The Form 5 is basically the same as the Form 4 except it involves no tax. Once approved, it is the registration and transfer authority, as well as the authority to take/ship the gun across state lines to the heir (same as a Form 4 for a buyer). If the gun cannot be taken or shipped, it must be shipped to a Class 3 dealer in the transferee's (heir's) state. No Form 5 is required for the gun to be transferred to the executor; for legal purposes, he/she is the registered owner, since he/she is acting legally as the decedent.

The issue has been covered except for a couple of points. Assuming the decedent had a will, and IF the executor cannot legally possess a firearm, then a court must name a new executor in accordance with the laws of the state of decedent's former residence or the state of probate. If the executor can possess a firearm, but the heir cannot, then the executor must either transfer it to another heir (on a Form 5) or dispose of the firearm in whatever legal manner he/she may choose, such as selling it and turning the money over to the heir. Note that "cannot legally possess" might be either individual disability (e.g., a criminal record) or disabililty due to the law in the executor's or heir's state or locality.

If the registered owner dies intestate (without a will), the laws of the state are followed and the presumed heir(s) should consult an attorney and BATFE to secure a legal transfer.

Once the heir has legal possession, he/she can then sell or otherwise dispose of the gun in any legal manner, including abandoning it.

Jim

 

[Aaron Baker]

Well, in no way are the regulations determined by BATFE not wanting to prosecute widows. That, as an attorney should know, is not up to BATFE anyway, but to the U.S. Attorney.

Jim, I'm not sure what your experience or background is, and I have no desire to get into a pissing match over this.

However, I stand by my position that, currently, the reason that executors don't have legal problems is because the ATF does not have a desire to prosecute morally innocent parties. That's a political minefield.

As an attorney, I am aware that AUSA do not go seeking out cases to prosecute. They prosecute the cases that are brought to them by law enforcement. If the ATF doesn't want to see widows put in prison, then the AUSA is never going to get that case referred to them.

In fact, BATFE regulations have pretty well reconciled two issues - the laws on inheritance, and the NFA, whose original text never mentioned inheritance or the death of an owner. The BATFE web site has a good explanation of the process.

I don't agree. The regulations themselves don't address executors. At all. Their policy addresses it. And policy can change at the drop of a hat. The ATF is notorious for that.

The ATF's current position was well-stated by Frank Ettin. That is:

Possession of an NFA firearm not registered to the possessor is a violation of Federal law and the firearm is subject to seizure and forfeiture. However, we do allow the executor a reasonable time to arrange for the transfer of the registered firearms in a decedent’s estate.

As the ATF's 1999 letter states, in the italicized portion above, it is not legal for someone other than the registrant, including executors, to possess an NFA firearm. However, the ATF allows the executor a reasonable time to do a transfer.

Currently, 27 CFR 479.81 through 27 CFR 479.93 doesn't exempt executors from prosecution for illegal possession.

One of the only GOOD components of the ATF's proposed rulemaking under 41P is the provisions they want to add that would actually legally protect executors. Without quoting the entire proposed rule, it says in part:

Sec. 479.90 Estates.

(a) The executor, administrator, personal representative, or other
person authorized under state law to dispose of property in an estate
(collectively ``executor'') may possess a firearm registered to a
decedent during the term of probate without such possession being
treated as a ``transfer'' as defined in Sec. 479.11.

Ultimately, what it comes down to is that the ATF policy currently allows executors a reasonable period of time to do a transfer without prosecuting them for an illegal transfer, but technically they could be prosecuted. They're trying to amend the regulations to make their policy into regulation, which would completely eliminate the risk of prosecution.

Aaron

 

[Carl N. Brown]

Keep the ATF, the executor of the estate and probably personal attorney familiar with NFA, all "in the loop". I believe this is especially true for a papered war trophy because there is a lot of confusion about that. And since we are all mortal, if you own an NFA item, let your heirs know where to find the paperwork.

 

[Frank Ettin]

...Ultimately, what it comes down to is that the ATF policy currently allows executors a reasonable period of time to do a transfer without prosecuting them for an illegal transfer, but technically they could be prosecuted...

It really can't be overemphasized that this is policy, not regulation of statute. It is a reasonable, practical policy; but since it is not enshrined in regulation or statute it's easy to change at any time.

Also, this policy assumes that the decedent's estate is being wound up through formal legal process, under court supervision when required. So --

• If there's a will, someone has filed the will for probate with the proper court; and someone has received Letters Testamentary from the court designating him as the executor (the personal representative of the decedent).
  
  
• If there's no will or trust, someone has filed to have the estate subject to court supervised administration; and someone has received Letters of Administration from the court designating him as the administrator (the personal representative of the decedent).
  
  
• If there's a trust, the trustee is handling matters as a fiduciary in accordance with the trust document and applicable state law.

So if uncle Sid dies and nephew Ernest just takes Sid's properly registered machine gun home to hold until the family can all get together in Aunt Frieda's living room to work out what to do with Sid's stuff, Ernest probably can't reasonably expect any accommodations from the ATF.

 

[Jim K]

It is true that "policy" can be changed, and that the president could do that by an EO, but are there any such plans? It might be hard to get traction in court if BATFE chooses to have the US Attorney (dog wagging the tail?) to prosecute an executor for following a policy that has been in effect for decades.

But I agree that the policy should be formalized as part of the CFR, for protection of executors and to clarify such situations as a NFA item owner who dies intestate.

Jim