by Carol Warnick
How many guns did you say the decedent owned? Are they all accounted for and safely stored? Who should be in possession of them during the administration period? If it is going to be the fiduciary, should the attorney suggest a background check if the fiduciary is an individual?
Firearms belonging to a decedent often present an ongoing dilemma for a fiduciary. Not only does the fiduciary have to worry about securing the firearms safely (firearms and potentially angry beneficiaries do not mix well) but they have to worry about identifying them correctly and understanding the transfer restrictions placed on the various classes of firearms. Even the mere possession of certain types of firearms can create issues for the fiduciary. Furthermore, an inappropriate transfer of a firearm by a fiduciary can result in liability for the fiduciary, the attorney, the beneficiaries receiving the transfer, or even third parties.
The National Firearms Act (26 U.S.C. 56) imposes restrictions on certain types of “NFA” weapons. In addition, Colorado law finds that “(a)ny person who knowingly purchases or otherwise obtains a firearm on behalf of or for transfer to a person who the transferor knows or reasonably should know is ineligible to possess a firearm pursuant to federal or state law commits a class 4 felony.” C.R.S. § 18-12-111. How many fiduciaries know (or should reasonably know) who is ineligible to possess a firearm? This came up recently in an estate our office was working on and it can get complicated. Would the fiduciary necessarily know whether or not the person who was designated to receive the firearm had been dishonorably discharged from the U.S. military, or had renounced his or her U.S. citizenship, or had ever been convicted of a crime of domestic violence? Each of these factors (this list is nonexclusive), along with a myriad of others, would make the person receiving the firearm a prohibited person. 18 U.S.C § 993(d).
Even if the beneficiary is determined not to be a prohibited person, what about their housemates? Could the nonprohibited beneficiary end up being liable for allowing their roommate or significant other who was a prohibited person have access to the firearm merely by virtue of sharing a house? Does the fiduciary have the responsibility to check out the beneficiary’s roommates?
The list of potential problems seems virtually endless. Michael G. Sabbeth wrote an article which provides a good primer on these issues and which we suggest be required reading for fiduciaries of estates where firearms are involved (“After the Last Shot: Estate Administration Issues With Firearms,” 40 Colo. Law. 95 August 2011).
As big as these issues are now, they aren’t going away any time soon. Expect that the problems and complications created by the presence of firearms in an estate or trust will do nothing but increase in the future.