Guns and wills in Oregon: Estate planning for legal firearms transfers
When it comes to owning guns in Oregon, it’s easy to overlook something crucial: How do you legally transfer ownership of firearms through your estate plan?
Firearms transfers are regulated under both Oregon law and national law. Oregon law specifies that post-mortem transfers of firearms have to be completed a certain way, or else your Personal Representative, family members, or beneficiaries may be inadvertently breaking the law.
Gun transfers under Oregon law
Oregon law states that the transfer of a firearm that occurs because of the death of the firearm owner must be facilitated only by a court-appointed personal representative or a trustee of a trust created in a will and the recipient is related to the deceased firearm owner.
Oregon law defines “related” as the deceased firearm owner’s:
- Domestic partner
- First cousin
- Niece or nephew
- Spouse or domestic partner of anyone listed above
Transfers to anyone not on this list or by someone who is not a Personal Representative or Trustee of a testamentary trust must be done at an approved gun dealer after the recipient has completed and passed the required background checks. This means that an affiant in a small estate does not fall under the exception of using a gun dealer to transfer a deceased owner’s firearms.
If someone transfers a firearm, or a deceased owner fails to comply with the requirements of ORS 166.435, that person has committed a Class A misdemeanor. This means that if a spouse gives a firearm to her child, the spouse could be convicted of a Class A misdemeanor if the spouse is not the court-appointed Personal Representative or trustee of a testamentary trust.
How can you make sure your Oregon estate plan accounts for the legal transfer of your firearms after your death?
Establish a revocable gun trust
Under both Oregon law and the National Firearms Act (NFA), gun owners can establish a revocable gun trust to specify how firearms will be transferred and who you intend ownership to be transferred to. This includes firearms for self-defense, hunting, sport, collections, heirlooms, etc.
A legally valid gun trust can help expedite the transfer of your firearms after your death, and it can help your household members from inadvertently violating state or federal firearms laws. Here are some things to keep in mind with your gun trust:
- The transfer of some firearms or accessories may require a federal tax stamp from the Bureau of Alcohol, Tobacco and Firearms, and/or the review and approval of your area’s Chief Law Enforcement Officer (CLEO).
- Requirements for legal firearms transfers apply to family members as well as beneficiaries outside your family.
- A person not legally authorized to use or possess firearms or firearm accessories may not be named a trustee or beneficiary of a gun trust.
- The gun trust needs to include a current inventory of all firearms and firearm accessories covered under the trust.
- The gun trust is a revocable living trust. During your lifetime you retain control and ownership of your firearms.
- You’ll need to appoint a successor trustee, lifetime beneficiaries, and remainder beneficiaries.
- Since the trust is revocable, you can alter the terms of the trust, or revoke it altogether, whenever you want.
Background checks and beneficiaries
Oregon law regulates how firearms covered in the trust may or may not be transferred or distributed. Trustees of your gun trust will need to comply with state and federal laws concerning gun ownership, transfers, and possession, such as:
- Trustee, co-trustees, etc., must undergo fingerprinting and pass a background check.
- After the firearm owner dies, only the estate’s personal representative may legally have or transfer firearms regulated under the NFA.
- NFA-regulated firearms have specific rules that must be followed to ensure legal firearm transfers, such as from representative to trustee, or from trustee to an individual beneficiary.
- As discussed above under Oregon law, a transfer will not require a family member beneficiary to undergo a background check if the transfer is facilitated by a court appointed Personal Representative or a trustee of a trust created in a will. However, for any firearms or accessories regulated by NFA, the beneficiary will still need to pass a background check and complete and submit relevant state or federal forms.
The National Firearms Act (NFA) and your estate plan
Whether your firearms are for collection or display only, or whether you use your firearms for hunting, sport, or self-defense, placing those firearms in a gun trust will help you smooth out post-mortem transfer of your guns to those you want to have them after you’re gone.
This can get tricky, though, under some of the terms of the NFA. For example, under NFA the registered owner must be present in order for an NFA-regulated firearm to be handled, used, or moved. Obviously, compliance with that requirement is tricky if the registered owner has passed away.
A gun trust smooths over these complexities or gray areas. Instead of the registered owner having to be present, any beneficiary may possess or use the firearm as long as the trustee is present or has given their authorization.
As you can imagine, this is important because violating the NFA carries steep legal and criminal consequences, such as prison sentences, expensive fines, and/or loss of the right to possess or own firearms altogether.
Make sure your estate plan handles your firearms right
The right to bear arms is an essential part of Oregon law, federal law, and the US Constitution. However, following the steps that Oregon and federal law specifies is crucial for ensuring that those after you are not inadvertently breaking the law.
By setting up a valid gun trust as part of your Oregon estate plan, you can ensure that your firearms are passed down to the people you want to have them, and those transfers of ownership are within the bounds of state and federal gun laws.