Be Careful How You Pass on Your Guns

Do stricter laws in New York put your heirs at risk, when inheriting firearms?

New laws enacted in New York, after the Sandy Hook shootings, aim at creating safeguards but also may leave family members who inherit weapons at risk, according to the New York Law Journal in “Death of a Gun Owner: Criminal Liability for an Heir?” The article examines how the act works and what happens to heirs when a gun owner dies.

The NY Secure Ammunition and Firearms Enforcement (SAFE) Act amended many of New York’s laws to provide strict regulations, including guidelines and timeframe for safeguarding firearms after a gun owner dies.

The SAFE Act created a statewide database that tracks people who were issued gun licenses, closed some loopholes regarding private gun sales, required stricter gun storage retirements and created more strict penalties for people who are found guilty of using or owning a gun.

In the estates world, the act also amended the New York Surrogate’s Court Procedure Act (SCPA) that requires estate fiduciaries to file a firearms inventory with the Surrogate’s Court to settle the estate of a decedent who owned guns. The inventory must be filed with the Division of Criminal Justice Services as a way of ensuring that the state knows where guns are located and about any transfer of ownership. There are also very specific time limitations for when the inventory must be filed.

What if your heirs don’t even know you own guns?

When a licensed gun owner dies, the person in charge of the decedent’s personal property is technically in illegal possession of the gun and guilty of criminal possession of a weapon. The law does provide an exemption from criminal liability for an executor or administrator or any other lawful possessor of a decedent’s firearm if, within 15 days of the death of the gun owner, the person either disposes of the gun lawfully or turns the gun over to the police.

Failure to do so could result in criminal charges, including a class A misdemeanor punishable by up to one year in jail or three years of probation and a $1,000 fine.

Fifteen days is a very short time in which to require that the gun is turned over to the police or “disposed of lawfully.” People who are not gun owners may not know what they should do. In some states, the law requires that the disposal of firearms must be conducted by a licensed firearms dealer.  However, there is an exception for transfers between immediate family members. That means spouses, domestic partners, children and stepchildren.  However, those receiving the gun must have a valid license to possess a firearm.

An estate planning attorney, who is experienced in the laws of your state of residence, can advise you in creating an estate plan that fits your unique circumstances and may involve the transfer of guns.

Reference: New York Law Journal (Sep. 7, 2018) “Death of a Gun Owner: Criminal Liability for an Heir?”