Firearms occupy a unique place in many Southern families.
A rifle handed down from a grandfather, a collection assembled over a lifetime, or a suppressor purchased for hunting in the back forty are more than property.
They are heirlooms, tools, and, in many cases, federally- regulated items that cannot be casually or legally transferred to the next generation.
For families in Alabama and Tennessee, where the Gregory Law Firm practices, a properly drafted gun trust is often the cleanest way to own, use, and ultimately pass these firearms on without exposing loved ones to inadvertent federal felonies.
This post explains what a gun trust is, why a family may need one, and why retaining a law firm to draft and administer the trust is materially safer than downloading a generic template.
What Is a Gun Trust?
A gun trust is a revocable living trust designed specifically to own firearms. Most importantly, firearms regulated by the National Firearms Act of 1934 (the “NFA”).
NFA-regulated items include suppressors (often called, inappropriately, silencers), short-barreled rifles, short-barreled shotguns, machine guns lawfully transferable under the Firearm Owners Protection Act, destructive devices, and “any other weapons” as defined by the statute.
Unlike ordinary hunting rifles and shotguns, NFA items cannot lawfully be possessed by anyone other than the registered owner.
A spouse who picks up an unsecured suppressor, an adult child who borrows a short-barreled rifle for a weekend hunt, or a friend who handles the firearm or uses the suppressor at the range can, in theory, commit a federal felony punishable by up to ten years in prison and a $250,000 fine.
The Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) interprets “possession” broadly, including the doctrine of constructive possession, which can implicate anyone who has access to the safe or knowledge of the combination.
A gun trust solves this problem by making the trust the registered owner and not an individual.
Co-trustees and properly designated beneficiaries may lawfully possess and use the firearms held by the trust, within the limits imposed by federal and state law.
Why a Family in Alabama or Tennessee May Need a Gun Trust
There are several reasons a gun trust often makes sense for families in our practice areas.
Shared lawful use.
If you would like your spouse, adult children, or hunting partners to be able to use your suppressor or short-barreled rifle without violating federal law, a trust with properly appointed co-trustees accomplishes that result.
Without a trust, only the individual whose name appears on the ATF tax stamp may possess the item.
Avoiding probate of regulated firearms.
Probate courts are not designed to administer federally regulated weapons.
When an NFA item passes through probate, the personal representative, who may have no firearms training and no knowledge of NFA compliance, takes possession of the item by operation of law, even though possession is illegal under federal law.
That personal representative can be exposed to liability, and the family may face delays of many months while the ATF processes a Form 5 tax-free transfer to the heir.
A gun trust avoids probate entirely for the assets it holds, and successor trustees can step into the trust’s shoes immediately upon the grantor’s death.
Protecting heirs from accidental felonies.
Many clients are surprised to learn that simply leaving a suppressor in a will to an adult child does not authorize that child to take possession of it.
The child cannot lawfully receive the item until the ATF approves the transfer. In the interim, custody by the heir may be unlawful.
A trust permits orderly, compliant administration with successor trustees who are already authorized to possess the items.
Multi-state considerations.
Alabama and Tennessee have meaningfully different trust codes. Tennessee has adopted a robust version of the Uniform Trust Code at Tenn. Code Ann. § 35-15-101 et seq.
Alabama’s version (Ala. Code § 19-3B-101 et seq.) contains its own variations. Families with property, beneficiaries, or firearms collections that touch both states benefit from a trust drafted by counsel familiar with both jurisdictions.
Planning for incapacity.
A gun trust should address what happens if the grantor becomes incapacitated.
Without proper planning, an incapacitated owner’s firearms may end up in the hands of a guardian or conservator who has no legal authority to possess NFA items. A trust names successor trustees who can take custody immediately and lawfully.
Privacy and orderly succession.
A trust keeps the disposition of the collection out of the public probate record. For families with substantial collections, that privacy can matter.
Why a Downloaded Form Is Not a Substitute for an Attorney
Generic gun trust forms are widely available on the internet, sometimes bundled with the purchase of a suppressor at a sporting goods retailer.
They are inexpensive.
They are also, in our experience, frequently inadequate — and the consequences of an inadequate gun trust are not theoretical.
Unlike the consequences of a poorly-drafted will or other trust types, the consequences of a poorly-crafted, generic, cookie-cutter gun trust might not be merely financial or structural. They could be criminal.
Form trusts often ignore state trust law.
A trust is a creature of state law. A form drafted to be “fifty-state compliant” almost always defaults to generic provisions that may conflict with the Alabama Uniform Trust Code or the Tennessee Uniform Trust Code.
A trust that is not validly formed under state law is not a trust at all, and the “owner” of the firearms may be no one. A fact that ATF examiners and federal prosecutors take seriously.
Form trusts have not kept up with ATF Rule 41F.
In July 2016, the ATF promulgated Rule 41F, which redefined who counts as a “responsible person” on a trust and imposed fingerprinting, photograph, and chief law enforcement officer notification requirements on every responsible person at the time of each new NFA application.
Many older form trusts were drafted with the pre-2016 regime in mind and contain unnecessary co-trustee structures that create paperwork burdens and delays with every new tax stamp.
A modern, professionally-drafted trust strikes the right balance between operational flexibility and administrative simplicity.
Form trusts rarely address successor trustees thoughtfully.
Naming the right successor trustee and the trustee after that (and the trustee after that), is the single most important decision in a gun trust.
A form that simply names “my spouse, then my eldest child” can produce disastrous results if the eldest child is a prohibited person under 18 U.S.C. § 922(g) (for example, because of a domestic violence misdemeanor conviction or an involuntary commitment), or if the spouse predeceases the grantor.
An attorney will discuss prohibited-person status with the client, draft contingent provisions, and screen for the kinds of disqualifications that families rarely think about.
Form trusts seldom integrate with the broader estate plan.
Most families who need a gun trust also need a pour-over will, durable powers of attorney, advance directives, in some cases an irrevocable trust for insurance policies, and often a separate revocable living trust for non-firearm assets.
A form purchased in isolation will not coordinate with these documents, and the resulting plan may contain contradictions that surface only after a death, when they are most expensive to fix.
Form trusts do not come with counsel.
When the ATF returns a Form 4 with a deficiency, when a co-trustee moves out of state, when a beneficiary becomes a prohibited person, or when a federal regulation changes, the client who downloaded a form has no one to call.
The client who retained a law firm has counsel familiar with the trust, the family, and the firearms at issue.
The economics favor counsel.
The cost of a professionally drafted gun trust is modest compared to the cost of a single NFA item, and dramatically less than the cost of defending a federal weapons charge or untangling a probate dispute over a contested collection.
Spending a few dollars on a download to protect tens of thousands of dollars in firearms, and to govern items the mishandling of which is a felony, is a poor trade.
Getting It Right from the Start
A gun trust is, in many respects, a simple document.
It is also a document whose mistakes are unusually expensive.
For families in Alabama and Tennessee who own, plan to own, or have inherited NFA-regulated firearms, the right path forward is a trust drafted by an attorney who understands both state trust law and federal firearms law, integrated with a complete estate plan and reviewed periodically as the law and the family evolve.
The Gregory Law Firm stands ready to assist Alabama and Tennessee families with gun trusts and the broader estate planning around firearms collections.
If you are considering the purchase of a suppressor or short-barreled rifle, have inherited NFA items, or simply want to make sure your collection passes cleanly to the next generation, we would welcome the opportunity to talk with you.
This post is provided for general informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship with The Gregory Law Firm. Federal and state firearms laws change frequently and apply to specific facts; please consult a qualified attorney before acting on any of the information discussed above.