The possession, transfer and sale of firearms and other weapons create a special set of risks for a personal representative. Unlike typical assets, such as ordinary personal belongings and financial assets, firearms can create physical risk for the personal representative, beneficiaries and others. In addition, state and federal laws impose rules that must be followed to avoid potential civil and criminal penalties. This article is intended to provide an overview of the most important rules that a personal representative should follow when handling firearms, along with some general recommendations on how to handle issues involving firearms owned by an estate.
Secure the Firearm
The first responsibility of any personal representative is to secure any weapons that the decedent might have left. Under Washington law, a person can be subject to a felony or misdemeanor for failing to properly secure a firearm that is used by a certain class of people in a crime or if the weapon is discharged. RCW 9.41.360. A firearm is properly secured if it is held in a secure gun storage location or secured with a trigger lock or similar device. RCW 9.41.360. A secure gun storage includes a locked box, gun safe, or other secure, locked storage space that is designed to prevent unauthorized use or discharge of a firearm. The firearm should also be unloaded.
Identify the Firearm
The personal representative should then identify the type of weapons that the decedent left. The state and federal rules applicable to weapons differ depending on the type of firearm involved.
Under Washington law, pistols are set apart from other weapons. Pistols are defined as “any firearm with a barrel less than sixteen inches in length, or is designed to be held and fired by the use of a single hand.” RCW 9.41.010. If the personal representative left a pistol, the personal representative must transfer the weapon within 60 days of coming into possession of the weapon. If that cannot or does not happen, the personal representative is supposed to notify the Washington State Department of Licensing to inform the department that he/she has taken possession of the pistol and intends to retain possession in compliance with state and federal law until such time as it is disposed of. RCW 9.41.113(4)(h)(ii). Typically, sixty days is too early to make distributions from an estate, given the four-month period for challenging a will. But if the personal representative believes that there is not likely to be a dispute over the weapon, there may be little risk in distributing firearms before this four-month will contest period lapses, assuming there is no significant value associated with the particular firearm. The personal representative should use a local, federally licensed firearms dealer to facilitate the sale or transfer of the pistol. The dealer will conduct any required background checks. The dealer will likely charge a fee for the services.
National Firearm Act (NFA) Firearms
The National Firearms Act (NFA) regulates several types of unique firearms: machine guns, short-barreled shotguns or short-barreled rifles, silencers, “destructive devices” (grenades, bombs, missiles), and “any other weapon” (unique weapons or devices that can be concealed on the person from which a shot can be discharged by the energy of an explosive). Generally, a typical rifle, shotgun, and pistol are not regulated by the National Firearms Act. The National Firearms Act requires NFA Firearms to be registered. To determine if an NFA Firearm is registered, the personal representative should contact a local, federally licensed gun dealer, provide the dealer with the gun’s serial number, and ask it to run a serial number search. Possession of an unregistered NFA Firearm is a crime. If the personal representative discovers that the decedent had an unregistered NFA Firearm, the personal representative should contact a local ATF office immediately.
To transfer or sell an NFA Firearm, the personal representative should use a local, federally licensed firearms dealer to help facilitate the transfer. The dealer will conduct any required background checks, and will likely charge a fee for the service. The beneficiary or buyer will need to pass an extensive background check with the ATF. Also, the transfer of an NFA Firearm may be subject to a $200 tax.
If the decedent had other types of firearms (e.g., a typical rifle or shotgun), the state and federal rules regarding pistols and NFA Firearms do not apply. Nevertheless, the personal representative should act prudently and carefully. Securing the firearm is essential. Also, the personal representative may choose to have a licensed dealer facilitate any sale or transfer and run a background check to ensure that the weapon is not transferred to a person ineligible to have a firearm.
The state and federal rules governing firearms are complex and far from clear. This article is not intended to address all issues related to the sale or transfer of firearms from an estate. If other issues arise, you should contact a local, licensed dealer or the local ATF field office for further information. For further reading on this issue, the ATF issued a letter on the transfer of firearms from an estate, which was last updated in 2006.