Ohio Gun Trusts: What You Need to Know

Handgun and Firearms Transaction Record

If you have made an estate plan, you have probably considered how you will dispose of property ranging from your home down to your wedding ring. But if you own certain firearms, you may need to take special steps to transfer them in a way that offers clarity and protects your loved ones from unwittingly violating gun laws.  Ohio gun trusts can streamline the transfer of firearms, making life simpler not only for your survivors, but for the executor of your estate.

What is the purpose of an Ohio gun trust? Primarily, to ensure compliance with federal law. Certain firearms are regulated by the National Firearms Act of 1934 (NFA), and by Title II of the Gun Control Act of 1968, a revision of the NFA. Weapons governed by these laws include short-barreled rifles, short-barreled shotguns (including sawed-off shotguns), machine guns, silencers, and grenades. Firearms covered by these federal laws may be referred to as "NFA firearms" or "Title II firearms."

NFA firearms are required to have a serial number and must be registered with the federal bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). These weapons may only be possessed and used by the registered owner, and if a weapon covered by the NFA or Title II is not already registered, ownership is illegal.

There is also a tax imposed on the transfer of an NFA weapon ($200) in most cases, and the owner must get approval for the transfer.

Benefits of a Gun Trust

You can create a gun trust and the weapons in it can remain in the trust after you die. The trust can help avoid some of the transfer requirements associated with NFA weapons, but that is far from its only benefit. Weapons held in a gun trust can be possessed or used by anyone named as a trustee of the trust. This offers flexibility if, for instance, you have three adult children who might want access to the weapons at various times.

More importantly, the gun trust can help keep your survivors from unknowingly violating federal criminal law. If you owned registered NFA weapons that were not in a gun trust, and they were included in your estate, your heirs could end up owning and possessing weapons in violation of the NFA. Further, if the executor of your state is not familiar with the relevant gun laws, he or she could unwittingly transfer a weapon in violation of the law.

You can include non-NFA weapons in a gun trust, as well. Although there are less stringent transfer requirements for such weapons, having them in a gun trust can simplify transfer and keep them from falling into the wrong hands.

As with other types of trusts, a gun trust will keep your firearms from having to go through probate at your death. However, a gun trust must be drafted in compliance with federal and state law, and is different in nature than a simple revocable living trust, so be sure your estate planning attorney has experience with this type of document.

Changes to Gun Trust Law

On July 13, 2016, the law regarding the manufacture and transfer of some weapons changed; machine guns, silencers, short-barreled rifles and shotguns, destructive devices, and any other weapons governed by the NFA. This change in the law, ATF Rule 41F, alters the procedures for trusts that receive regulated firearms.

One significant change is the addition of a definition of "responsible person." That term refers to an individual who manages a trust, partnership, or certain other entities. According to Rule 41F, a responsible person with regard to a trust or other entity is:

  • Settlors/Grantors
  • Trustees
  • Partners
  • Members
  • Officers
  • Board members
  • Owners
  • Beneficiaries, if the beneficiaries have the power under the trust or state law "to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm on behalf for, or on behalf of the trust."

A "responsible person" must fill out ATF Form 5320.23 ("Responsible Person Questionnaire" as well as submitting a photograph and fingerprints.  These materials are submitted to the designated chief law enforcement officer (CLEO). The requirement of a signed certification from the CLEO has been eliminated from the law.

Rule 41F is intended to promote safety by ensuring that anyone possessing NFA firearms, whether an individual owner or the responsible person of a trust, undergoes the same level of legal scrutiny. The changes were designed to reduce administrative burdens and ensure that dangerous weapons are possessed only by qualified persons.

If you own NFA firearms and want to ensure for their safe disposition after your death, consider having an experienced Ohio probate and estate planning attorney prepare a gun trust to streamline the transfer and protect your survivors.

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Categories: Estate Planning, Trusts