Published: December 19, 2016 in the New Jersey Law Journal
By: Elaine M. Cohen and Tara S. Sinha
Testators and fiduciaries beware
There are federal and state regulations that govern the purchase, ownership, and transfer of firearms. The focus of this article is to notify parties who make a Will and fiduciaries, as well as their legal counsel, about the requirements regarding the transfer of firearms upon the death of a resident of New Jersey. This article will also discuss a new federal rule that clarified a fiduciary’s duties with respect to firearms.
The National Firearms Act (“NFA”) (1934) as amended by Title II of the Gun Control Act of 1968 governs the manufacturing, importing, sale and taxation on the transfer of firearms. The federal law was recently amended to clarify the obligations of a fiduciary, discussed below.
Federal laws govern the transfer and taxation of “NFA firearms,” which are defined as follows:
- A shotgun having a barrel(s) less than 18 inches long;
- A weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels less than 18 inches long;
- A rifle having a barrel or barrels less than 16 inches long;
- A weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or barrel(s) less than 16 inches long;
- Any other weapon as defined in 18 U.S.C. § 5845(e);
- A machine gun;
- A muffler or a silencer for any firearm whether or not such firearm is included within this definition; or
- A destructive device.
An executor, administrator or personal representative needs to determine whether the firearm owned by the decedent qualifies as a “NFA firearm.” The vast majority of us are not familiar with firearms and the determination of whether a firearm qualifies as a “NFA firearm” can determine whether federal or state laws govern the transfer of the firearm. Thus, we recommend that a fiduciary or legal counsel seek the assistance of a federal licensed firearms dealer if he/she is unable to determine what type of firearms the decedent possessed, since the law treats a revolver differently than a semi-automatic or automatic firearm. In the interim, the fiduciary is responsible to maintain custody and control of any firearm until proper transfer to a beneficiary or other transferee. It should be noted, it is the fiduciary’s personal responsibility to maintain custody and control of the firearm; the firearm may not be transferred to another individual, such as a firearms dealer or license-holder, for safekeeping or sale.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (the “ATF”) maintains a National Firearms Registration and Transfer Record. A fiduciary can contact a local ATF NFA branch to determine the registration status of a particular firearm held by a decedent. Unregistered firearms are considered contraband and are subject to forfeiture. An unregistered firearm cannot be registered by the estate; accordingly, the fiduciary must contact an ATF office to arrange for the abandonment of the firearm. Before the administration of the estate is completed and the probate proceeding is closed, the fiduciary should arrange for the transfer of registered firearms owned by the decedent to either a qualified beneficiary or a third party.
On July 13, 2016, new federal regulations were adopted (27 CFR § 479.90a), governing the transfer of a firearm held in an estate. The new regulations made significant changes to the prior law. Specifically, the regulations provided that a fiduciary’s possession of a firearm registered to a decedent during the pendency of probate is not considered a transfer. However, the fiduciary must, prior to the close of probate, submit an application to the ATF to transfer the firearm. The process varies if the firearm is being transferred to a beneficiary of the estate or a non-beneficiary.
If the property is being transferred to a beneficiary, the fiduciary must complete and file ATF Form 5 – Application for Tax Exempt Transfer and Registration of Firearm. The heir’s fingerprints must accompany the application. If the ATF determines that any federal, state, or local law prohibits the heir from receiving or possessing the firearm, the ATF will not approve the application.
If the firearm is being transferred to a non-beneficiary (i.e. unrelated purchaser), the fiduciary must file ATF Form 4 – Application for Tax Paid Transfer and Registration of Firearm. Form 4 must be accompanied by the transferee’s fingerprints and photographs. In addition, the application must be certified by an appropriate law enforcement official having jurisdiction where the transferee resides. Acceptable certifying officials include chiefs of police, county sheriffs, heads of State police, district attorneys, state attorneys general, or judges of state courts having authority to conduct jury trials in felony cases.
Regardless of whether the firearm is being transferred to an estate beneficiary or a non-beneficiary, the fiduciary must also provide the following information and documents to the ATF:
- documentation of the fiduciary’s appointment as personal representative;
- a copy of the deceased owner’s death certificate;
- a copy of the decedent’s Last Will and Testament (if any);
- any other documentary evidence of the fiduciary’s authority to dispose of property; and
- any other document related to or affecting the estate’s disposition of the firearm.
It should be noted that these rules only apply to NFA firearms. It is also important that the fiduciary be aware of any state laws and restrictions since, as noted, if federal, state, or local laws prohibit transfer of the firearm to the heir or transferee, the ATF will not approve the transfer application.
In New Jersey, the licensing, possession, and transportation of firearms is regulated by statute N.J.S.A. 2C:58-1, et. seq., and administrative rules, N.J.A.C.13:54-1.1, et. seq.. An heir or legatee can receive a firearm from a fiduciary without obtaining a permit to purchase a handgun or a firearms purchaser identification card so long as that person would otherwise be legally qualified to obtain such documents.
New Jersey, similar to most states, has prerequisites for obtaining a permit to purchase a handgun or a firearms purchaser identification card. Under the New Jersey regulations, the applicant must meet the following conditions:
- For a firearms purchaser identification card, he/she must be 18 years of age or older; to obtain a handgun, 21 or older;
- Never convicted of any crime or a disorderly persons offense involving domestic violence;
- Not subject to a restraining order that prohibits the possession of a firearm;
- Not drug dependent as defined by N.J.S.A. 24:21-2;
- Never confined to a hospital, mental institution, or sanitarium for a mental disorder;
- Not be a habitual drinker;
- Not suffer from a physical defect or disease that makes him/her unsafe to handle a firearm;
- Never knowingly gave false information on an application for a permit to purchase a handgun or a firearms purchaser identification card; or
- Cannot refuse to waive the right of confidentiality for records from any institutional confinement.
An applicant will also be denied if the local law enforcement chief determines that it would not be in the interest of the public health, safety and welfare for the applicant to possess a firearm.
In the event that an applicant has previously suffered from a physical defect or disease, mental disorder, or alcoholism, the applicant may be issued a permit or identification card if he/she can produce a certificate of a medical doctor or psychiatrist licensed in New Jersey or other satisfactory proof that he/she is no longer suffering from that particular disability in a manner that would interfere with the handling of a firearm.
Thus a testator should consider whether the heir or legatee can actually possess a firearm when considering the testamentary disposition of the firearm. An heir or legatee who does not qualify to acquire a firearm may retain ownership of the weapon for the purpose of selling the firearm for a period of 180 days; this period may be extended by the chief of police of the municipality where the heir/legatee resides or the Superintendent of the New Jersey State Police. However, during the pendency of this 180 day period, the firearm must be placed in the custody of the chief of police or Superintendent.
Neither the statutes nor the regulations address the fiduciary’s responsibility or liability with respect to the disposition of the firearm. Previously, legislation was introduced to require a fiduciary to notify the local police in the municipality where the decedent resided of the decedent’s death and to turnover the firearm pending transfer to the heir/legatee. However, such legislation was not passed. Nonetheless, to minimize issues regarding an heir/legatee’s ability to take possession of a firearm and to avoid potential fiduciary liability for improper transfer of a firearm, a fiduciary should consult with estate counsel familiar with New Jersey firearms laws and, when in doubt, the fiduciary may consider turning over the firearm to the local police or State Superintendent for safekeeping while the fiduciary arranges disposition of the firearm.
In today’s world, with the prevalence of gun violence, changing regulations concerning firearms, and the proliferation of lawsuits relating to improper gun storage and handling, it is imperative that individuals who lawfully own firearms give careful consideration to how they wish to pass those firearms to others after their deaths. It is also important that fiduciaries and estate counsel be aware of the rules and regulations governing the succession of firearms. Legal practitioners should become familiar with both federal law and the laws of the jurisdictions in which they practice governing transfers of firearms.
Sinha and Cohen are attorneys with Witman Stadtmauer in Florham Park.
Reprinted with permission from the December 19, 2016 edition of the New Jersey Law Journal. © 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited