More than 40 years of experience

Should you own a gun without a gun trust in Maryland?

Transcript

A gun trust is a revocable or irrevocable trust used to take title to firearms,

Most firearms owned by Marylanders are Title I weapons – ordinary pistols, shotguns, and rifles. Consider a gun trust if you own a firearm, even a single rifle or pistol. All firearms are heavily regulated, so it is easy to commit a felony without knowing it, simply by transporting and/ or giving it to your son or daughter, or grandchild.

A gun trust is a mechanism for orderly transfer of firearms upon the death of the owner (grantor) to a family member or other heir. But the transferee must go through the background check and identification process before taking possession of the firearm. In Maryland, the transferee must have a Handgun Qualification License or HQL

Although any legally owned firearm can be placed into a gun trust, typically they are used for weapons classified under the National Firearms Act of 1934 or The Gun Control Act of 1968, such as a fully automatic machine gun, a short-barreled rifle or shotgun, or suppressor (also called a “silencer”) These are typically referred to as “Class III” or Title ll” firearms. A suppressor, can legally only be used by the person to whom it is registered and no one else. A violation is a felony. So, if a family member or a friend fires a few rounds with a suppressor at a local range, or the backyard, that is a felony. A gun trust makes it easier to allow the use of Title II weapons by multiple parties. Each person who has access to and use of weapon should be a co-trustee of the trust and go through the required background checks, identification requirements and Maryland law.

Privacy is another benefit of placing Class I Firearms in a gun trust. In Maryland, an executor or personal representative of an estate must file an inventory with the Register of Wills. Probate inventories are public documents, available for review by everyone who wishes to see it. The value of the firearm and its serial number are typically listed in the inventory. If the firearm is owned by the trust, it is not included in the inventory because it is not owned by the decedent.

Ease of transfer without probate proceedings is yet another benefit. Most Class I firearms are transferred informally upon the death of the owner. The owner dies and the firearm is handed over to a family member without observing any of the Federal and Maryland statutes. This is a violation of both Federal and State laws. Transferring a firearm through a gun trust eases the transfer process.

Another benefit is a gun trust facilitates the transfer of a collection of firearms. Depending upon the size of the collection it may be possible to set up a separate income producing trust. There are many advantages available through a gun trust and disposition of Class I firearms in estate planning.

Another benefit relates to the possible incapacity of the owner. If a gun owner becomes incapacitated, it is most likely illegal for that owner to own the firearm. When a gun owner becomes incapacitated with its concomitant problems, gun ownership is not a high priority among the other issues to be handled. If a gun trust owned the firearm there would be no violation. Trusts cannot be physically or mentally incapacitated. In Henderson v. United States 1305S. CT 1780 (2015), a felon was prohibited from possessing firearms. The court held in 18 U.S.c. section 9220 (g) that would not prevent the petitioner, (felon), from disposing of his firearms in ways that guaranteed he would never use them again, e.g. by placing those guns in a secured trust [gun trust] for distribution to his children after his death.

Except in very limited circumstances, Federal law prohibits anyone under the age of 18 from knowingly possessing a handgun, or ammunition and any person from selling, delivering, or otherwise transferring a handgun to a person under 18. A knowing violation under certain circumstances is punishable up to 10 years in prison.

My practice has been to recommend Class III firearms be placed in one gun trust and Class 1 firearms be placed in a separate gun trust. There are any number of other reasons for using gun trusts; this is just illustrative of the more common ones.

The contents of this brief article are not to be taken as legal advice. There is no substitute for meeting with an attorney and obtaining responses to your situation. I do not recommend one-size-fits-all trusts from the Internet. I have looked at some of them and do not believe they are appropriate in many situations.

 

Michael Freilich, Esq.

Posted on January 25, 2021

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