Firearm Inheritance Issues
California law requires that before anyone “acquires” a firearm, they must first obtain a Firearm Safety Certificate. It is part of the California Penal Code section 26840, which means the failure to follow the rule here means you are breaking the law; starting at a misdemeanor. In any event, it’s simply good practice for every firearm owner to understand and follow firearm safety practices, have a basic familiarity with the operation and handling of their firearm, and be fully aware of the responsibility of firearm ownership.
The CA Penal Code section 31615 prohibits the “transfer” of any firearm (including loaning, delivering, or selling), to any person that does not have a valid firearm safety certificate (with some exceptions). What if your beneficiaries do not have the requisite firearm safety certificate? The good news is that a beneficiary can (and should) easily obtain a Firearms Safety Certificate before any gift from a will or trust is received.
To obtain a Firearms Safety Certificate, a person must pass a Department of Justice written test on firearm safety. It’s not too difficult to pass, if you think logically, and you can take the exam from a Department of Justice Certified Instructors, who are usually conveniently located at your local firearms retailer. There are ample study guides available online as well to prepare you for the test. See, for example, https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/hscsg.pdf
Also, an executor or administrator of an estate can take title or possession of a firearm, and are exempt from the Firearm Safety Certificate requirement until such time as they transfer title ownership to themselves in a personal capacity. That’s at CA Penal Code 31700(b)(1). Interestingly, that same code section does not mention a trustee of a trust as having that same power. Is that a convenient omission? An “executor” is of a will (which directs an estate). An “administrator of an estate” is in charge of an estate. If you have a living trust, and you convey title of your firearms to your living trust, then you no longer own your firearm – your trust does, and controlled by a trustee, not an executor or administrator.
As an executor or administrator, you should verify that a beneficiary has a Firearms Safety Certificate before you transfer a firearm, and encourage a beneficiary to obtain a Firearms Safety Certificate if they do not have one.
All Requirements To Inherit A Firearm
In order to inherit a firearm (by gift, bequest, intestate succession, or other means from one individual to another), without the need of going through a licensed firearms dealer, all of the following must be met:
- The transfer is infrequent, as defined in Section 16730.
- The transfer is between members of the same immediate family.
- Within 30 days of taking possession of the firearm, the person to whom it is transferred shall submit a report to the Department of Justice, in a manner prescribed by the department, that includes information concerning the individual taking possession of the firearm, how title was obtained and from whom, and a description of the firearm in question. The reports that individuals complete pursuant to this subdivision shall be made available to them in a format prescribed by the department.
- […] Commencing January 1, 2015, a valid firearm safety certificate for any firearm […]
- The person receiving the firearm is 18 years of age or older.
(CA Pen Code section 27545).
How Can Loaning A Firearm Be Illegal?
Generally, you can not loan a firearm to just anyone. You have to go through a licensed firearms dealer to loan a firearm, unless all of the following is true:
- The loan is to a spouse, registered domestic partner, or any of the following relations, whether by consanguinity, adoption, or step-relation: parent, child, sibling, grandparent, or grandchild. [This does not include: niece, nephew, son/daughter-in-law, cousin, uncle, aunt, great-grandchild, or any other relations not expressly listed].
- The loan is infrequent, as defined in Section 16730.
- The loan is for any lawful purpose.
- The loan does not exceed 30 days in duration.
- […] Commencing January 1, 2015, for any firearm, the individual being loaned the firearm shall have a valid firearm safety certificate […]
- If the firearm being loaned is a handgun, the handgun is registered to the person making the loan pursuant to Section 11106.
There are a couple ways to get around the Firearm Safety Certificate on this one. Thus, while it is illegal to loan a firearm to anyone that does not have a Firearm Safety Certificate, it is still legal to loan a firearm to someone that does not have a Firearm Safety Certificate if ALL of the following are also true:
- The person loaning the firearm is at all times within the presence of the person being loaned the firearm.
- The loan is for a lawful purpose.
- The loan does not exceed three days in duration.
- The individual receiving the firearm is not prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm.
- The person loaning the firearm is 18 years of age or older.
- The person being loaned the firearm is 18 years of age or older.
(CA Penal Code section 31750).
Even if the person is not 18 years old, as it specifically relates to handguns, a parent (or legal guardian) can also loan a firearm to a minor if both of the following are true:
- The minor is being loaned the firearm for the purposes of engaging in a lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity or hunting education, or a motion picture, television, or video production, or entertainment or theatrical event, the nature of which involves the use of a firearm.
- The duration of the loan does not exceed the amount of time that is reasonably necessary to engage in the lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity or hunting education, or a motion picture, television, or video production, or entertainment or theatrical event, the nature of which involves the use of a firearm.
What if the child is not yours? No worries, you can still loan a firearm to a minor, but you have to meet a couple more requirements, in addition to the ones immediately above:
- The minor is accompanied by the minor’s parent or legal guardian when the loan is made, or the minor has the written consent of the minor’s parent or legal guardian, which is presented at the time of the loan, or earlier.
- The loan does not exceed 10 days in duration.
Why should you be loaning a firearm to a child in any case? It is not up to me to determine the right age at which a person should learn how to handle, fire, or dismantle a firearm, but I do believe that each parent has a right to educate their children in the way they see fit. More importantly, every parent should educate their children and family on how to be a responsible firearm owner before they leave such an immense responsibility to a beneficiary as an inheritance.
We always remind clients to think about the impact of their gifts on their beneficiaries, and to take responsibility for their own actions as Settlors.
Originally published July 9, 2018 by Merrill A. Hanson. The laws in this area change frequently. This is not nor is it intended to be legal advice and you should not rely upon it. You should seek out an attorney for your own unique legal situation and to verify whether the information herein is still accurate.
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Glendora, CA 91741