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April 18, 2014
How do the New Laws on Firearms Affect How You Hold and Transfer Them to Heirs?

BACKGROUND

After the Sandy Hook Elementary School shooting in December 2012, Connecticut enacted new firearms laws, Public Act 13-03 and its amending act, Public Act 13-22. These laws impact how we may possess, purchase, transfer, hold, register and inherit firearms.

As of April 4, 2013, these new laws expand the definition of “assault weapons” by enacting a more restrictive classification. Firearms under this new classification now are prohibited from being sold in Connecticut. Anyone who had “actual or lawful possession” of such firearms may continue to possess them, but must have applied for a Department of Emergency Services and Public Protection (DESPP) certificate of possession for each firearm by January 1, 2014. The law also bans the sale, transfer and possession of ammunition magazines that hold more than ten (10) rounds, which are considered “large-capacity” magazines (LCM). Such magazines lawfully owned prior to enactment may be permissibly owned thereafter, however, before January 1, 2014, they must have been registered with the DESPP. Any person who moves into the state in lawful possession of an “assault weapon” shall, within ninety (90) days, render it permanently inoperable, sell it to a licensed gun dealer, or remove it from the state.

PA 13-3 prohibits non-dealers from selling or transferring a firearm other than a pistol or revolver to other non-dealers, unless DESPP authorizes the transaction or specified background check requirements are met. Such firearms include “any sawed-off shotgun, machine gun, rifle, shotgun or other weapon from which a shot may be discharged.” In addition, police may seize a person’s firearms without warrant or a court order, when they have probable cause that an individual may be either mentally unstable or intends to use the firearm to commit a crime.

First, the basics: The following chart lists requirements for ownership of firearms.

ESTATE PLANNING IMPLICATIONS

How does the new law pertain to transferring firearms to trusts or to heirs via a last will and testament? Existing law now prohibits anyone with a registered “assault weapon” from: (a) selling or transferring the firearm in Connecticut to anyone except a licensed gun dealer; or (b) otherwise transferring the firearm except by: (i) bequest (through a Will) or intestate succession (without a Will); or (ii) prior arrangement by DESPP or a local police department in case the owner wishes to relinquish or destroy the firearm. Any individual who inherits title to a properly registered “assault weapon” must, within ninety (90) days of obtaining title: 1) apply to the department of public safety for a certificate of possession; 2) render the firearm inoperable; 3) sell the firearm to a licensed gun dealer; or 4) remove the firearm from the state. In this regard, firearm owners should now inform their intended heirs to obtain a certificate of possession immediately after inheriting the “assault weapon”. In addition, the prospective heir should take steps now to obtain the proper permit or eligibility certificate.

The bill also allows the trustee of a trust that includes a registered “assault weapon,” upon the death of the testator or settlor, to transfer the firearm to a trust or, from a trust to a beneficiary eligible to possess the firearm (one with a valid permit or certificate). But the legislature only addresses “assault weapons” already included in a trust prior to the enactment of the new law. It is silent as to transferring “assault weapons” to a trust post-enactment and pre-death. Whether the legislative intent was to prohibit pre-death transfers of “assault weapons” to trusts or a mere oversight, the prudent course of action now is not to transfer “assault weapons” classified under the new statutes to trusts prior to death. The amending act also makes it clear that “assault weapons” manufactured prior to September 13, 1994 (“pre-ban” “assault weapons”) are not subject to PA 13-03. Therefore the law permits transfers of these pre-ban “assault weapons” to a revocable trust.

Nothing precludes one, however, from transferring firearms other than “assault weapons” to a revocable trust. The issue, therefore, becomes whether one wishes to have such firearms listed on a public probate document inventorying them when the owner dies and subjecting them to the probate process, or to transfer them to a revocable trust, which is a private document not subject to public view, and not subject to probate scrutiny. Transferring non-assault firearms pursuant to statutory requirements to family members holding a valid carry permit or certificate, is another viable option. In addition, there is no prohibition on the transfer of magazines, of any capacity (including LCM magazines), into a revocable trust.

Importantly, and especially for estate planning purposes, the law exempts antique firearms, as defined in existing law, from all the provisions pertaining to firearms sales and transfers. With some qualifications, “antique firearm” means any firearm that was manufactured in or before 1898 and any replica of such firearm.

If one’s estate plan may involve having any firearm held in trust, the consideration of who should be the trustee takes on a new dimension. The trustee or perhaps a special co-trustee appointed and empowered solely to hold and manage the firearms of the trust, must have the proper permits to possess and carry the firearm(s) involved.

One thing is clear: the classification of your firearms and consideration of their disposition are new variables to carefully consider when creating and reviewing your estate plan.

Estate Planning & Probate Administration