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Attorney drafted Florida, Maryland and Virginia NFA Gun Trusts*

*See All Other States or the Digital Download for states other than Maryland and Virginia

Potomac Gun Trusts

What are NFA (gun) trusts?

These type of trusts are specifically designed to protect the client as well as their loved ones when they have items that fall under the control of the National Firearms Act. Typically, clients are most interested in suppressors (also known as silencers), short barreled rifles (SBR), machine guns, or short barreled shotguns. Each of these items are highly regulated and controlled by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). A client that owns an NFA controlled item has the added burden of not only ensuring they personally adhere to all applicable Federal and State laws but also not putting their friends or family at risk.

By owning, for example, a suppressed SBR, the client must ensure they don't allow friends or family to have physical access or control of the weapon as that would violate Federal and State law. That could mean significant fines, prison time, and confiscation of the firearm. Clients must also ensure they don't provide constructive possession of the firearm. What is constructive possession? US v. Turnbough states that constructive possession exists when a person knowingly has the power and intention at a given time to exercise dominion and control over an object, either directly or through others. For example, you bring home your new suppressed SBR and place it in your gun safe. This is the same gun safe that you wisely store your Will in as well as valuables such as your spouses jewelry. Being a responsible person, you ensured your spouse had access to the safe so that she could have access to the jewelry as well as family Will. Your spouse has constructive possession of your suppressed SBR. A gun trust enables you to handle your NFA controlled item more easily than you otherwise could. Those that you list in the trust can handle the item and have constructive possession. There are many other benefits to utilizing a gun trust as well. Such as having them identified in a trust which signifies they are of financial or sentimental value thus should be treated accordingly.

It bears mentioning that there are various "trusts" on website forums, in local gun stores, and created with legal software online, such as through NOLO.com. These "trusts" may appear convenient, cheap, or even free on the surface but can have significant financial and criminal impacts down the road if they are not legal trusts.

You should also validate that the packaged trusts offered by gun or suppressor shops are robust, meet the legal requirements, and are proper estate planning documents. Remember, the NFA trust owns the NFA firearms and when you die (as we all do) or become incapacitated, the trust carries legal weight. I continue to review all manner of trusts, from packaged ones offered by gun or suppressors shops to $500 NFA trusts and they are not all created the same.

For example, people were using NOLO.com to draft their gun trusts. NOLO has since come out and said "No. If you want to create a gun trust, get personalized legal advice from an expert on gun laws. Nolo living trusts are designed for the people who simply want to pass on their assets while avoiding probate. Gun trusts are complicated because they: -- may need to last for more than one generation -- may have multiple trustees, and -- must address both state and federal weapons laws. Nolo’s living trusts do not address these issues, and so you should not use Nolo living trusts to transfer weapons. If you want to make a gun trust, get help from a lawyer who has plenty of experience with these trusts and state and federal weapons laws." When it comes to NFA or gun trusts at your local gun store, which may be offered free with a gun purchase or for a nominal fee, you should ask several questions, such as if a licensed attorney drafted the trust.

You do not want to find out after the fact, especially when it comes to NFA items, that the trust you have is not legal. If you have a trust that you believe is not valid under Maryland law, I may be able to help so that your firearm isn't deemed contraband by the ATF and you do not potentially have to be concerned with the criminal penalty of 10 years and a $250,000 fine in addition to any confiscations.