With over 300 million guns in the hands of private citizens in America, it’s not surprising that California trustees often find themselves in the possession of firearms belonging to a deceased settlor, with the responsibility to safeguard them pending the transfer to the beneficiaries.
Anyone, including a fiduciary, can be liable for transferring National Firearms Act Title II firearms (machine guns, short-barreled rifles and shotguns, etc.), assault weapons, or .50 BMG rifles to another person. In addition, there can be a liability for transferring any firearm where the transferor knew or had reasonable cause to believe of a recipient’s ineligibility to possess firearms. The nightmare scenario for a trustee is the innocent transfer of a perfectly legal firearm to a beneficiary who then uses it in a crime, creating potential liability for the trustee. Accordingly, any trustee, personal representative, or other fiduciary that takes possession of firearms should contact an attorney to protect him or herself from liability.
How to Legally Transfer Firearms
The simplest and safest manner for a trustee to transfer firearms is usually through a Federal Firearms Licensee (“FFL”). If the trustee processes the transaction through a FFL, the gun dealer will perform a mandatory background check on each beneficiary to ensure that he or she is eligible to possess firearms.
An alternative to using a FFL is the narrow intra-family transaction exception provided by Cal. Pen. Code Section 27875. This exception allows a family to bypass the use of an FFL if all these requirements are met:
The recipient is 18 years or older
The recipient first receives firearm safety certificate
The transfer is between members of the same immediate family
A report is filed within 30 days of the transfer with the California Department of Justice detailing the transfer and firearm involved
The transfer is “infrequent” as defined by Pen. Code section 16730
“Infrequent” transfers are those that occur only occasionally and without regularity for long guns, and no more than six transactions per calendar year for handguns. An immediate family member, unfortunately, only includes a parent to child relationship or a grandparent to grandchild relationship. If the five requirements are met, the transferor may transfer the firearm without using a FFL.