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Firearms and Estates

FIREARMS EXECUTOR

Heath J. Thompson, P.C. is a federally licensed firearms dealer and is licensed to handle the transfer and sale of all manner of firearms including firearms covered by the National Firearms Act (NFA) such as machine guns, short, barreled rifles, and suppressors/silencers.

The attorneys of Heath J. Thompson, P.C. can be retained to serve as a limited executor or “Firearms Executor” of a decedent’s estate to handle the control, inventory, distribution, and sale of firearms safely and legally including NFA items.   

Heath J. Thompson, P.C. also offers brokerage and appraisal services upon request.   If you are looking to liquidate your firearms collection, please contact us for assistance.

LEGAL FRAMEWORK

THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS, and EXPLOSIVES (BATFE)

The BATFE is a subdivision of the Department of Justice and is the federal agency charged with enforcing federal firearms laws.    

What Laws are Enforced by the BATFE?

THE NATIONAL FIREARMS ACT OF 1934

The National Firearms Act was enacted to combat the rise of lawlessness surrounding the gangster culture during prohibition.   The intent was to limit the availability of automatic weapons, short barrel shotguns(SBS), short barrel rifles (SBR), suppressors also known as silencers, and other “destructive devices.”

Transfers of these items require the filing and approval of the appropriate transfer form and payment of a fee to the treasury (usually $200) before an NFA item can be transferred.  

What Constitutes a Transfer?

The term “transfer” is broadly defined by the NFA to include “selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of” an NFA firearm.

WARNING: TRANSFERRING A NFA FIREARM WITHOUT APPROVAL OF THE BATFE MAY RESULT IN SERIOUS CIVIL AND CRIMINAL PENALTIES including up to FIVE YEARS IN FEDERAL PRISON.  

If you discover an NFA Item:  Machine Gun, Short Barrel Shotgun, Short Barrel Rifle, Suppressor or other Explosive Device contact my office or seek legal assistance immediately.   

GUN CONTROL ACT OF 1968 

 18 U.S.C. 921-931

Following the assassination of President John F. Kennedy who was killed by a mail-order gun belonging to Lee Harvey Oswald, Congress revised federal firearms laws.   The act expanded record-keeping and licensing requirements, restricted certain sales, and further defined persons who were banned from possessing firearms.   

Key Elements of the Gun Control Act

The Gun Control Act placed limitations on the interstate sale of firearms to individuals.   Prior to its enactment, it was possible to mail-order a firearm to your house.   The Gun Control Act was amended in the 1990s to require a background of prospective firearms purchases and created a list of categories of individuals to whom the sale of firearms is prohibited.

What is a Prohibited Person? 

A prohibited person is someone who falls within the prohibited person categories set forth in 18 U.S.C. 922(g) and (n) as well as Virginia Code 18.2-308 et seq.  Transfer of a firearm to a prohibited person or possession of a firearm by a prohibited person felony.   

Persons acquitted by reason of insanity.  18.2-308:1:1

Persons adjudicated as incompetent.  18.2-308.1:2

Persons involuntarily admitted to outpatient treatment.  18.2-308.1:3

Persons subject to a protective order.  18.2-308.1:4

Persons convicted of certain drug offenses.  18.2-308.1:5

Persons subject to substantial risk orders.  18.2-308.1:6

Persons convicted of a felony.  18.2-308.2

Persons who are fugitives from justice. 18 U.S.C. 922(g)

Persons that are users or addicted to any controlled substance.  18 U.S.C. 922(g)

Persons that are Aliens.  18 U.S.C. 922(g)

Persons discharged from the Armed Forces under dishonorable conditions.  18 U.S.C. 922(g)

Persons that have renounced their citizenship.  18 U.S.C. 922(g)

Persons that have been convicted of a misdemeanor crime of domestic violence.  18 U.S.C. 922(g)

Possession of a Firearm by a Prohibited Person and “Constructive Possession”

It is relatively clear that it is a felony for a prohibited person to be in possession of a firearm.   However, there are some instances wherein a prohibited person may not be in actual possession or have ownership of a firearm but still may be found to be in constructive possession.   Constructive possession issues arise when a prohibited person has access to a firearm.  In most cases, this occurs when a spouse, parent, or roommate has a legal firearm but shares the living space with a prohibited person.   If a prohibited person has access to the firearm both the prohibited person and the legal owner could face significant criminal penalties.   

VIRGINIA SPECIFIC ISSUES 

One Handgun A Month

Virginia has enacted a “One Handgun a Month” law.   Section 18.2-308.2:2, of the Code of Virginia, prohibits the sale or transfer of more than one handgun to any person within any 30-day period unless specifically exempted by statute or upon the issuance of a Multiple Handgun Purchase Certificate issued by the Department of State Police.

There are some exceptions to the rule.   The following are the most pertinent exceptions for private individuals that will allow the purchase of more than one handgun a month.

  1. Private Security Agency
  2. Exchange or replacement of a handgun.
  3. Purchase of an antique firearm
  4. Replacement of a lost or stolen handgun  (must produce a police report).
  5. Trade of a handgun for a handgun (only one per day)
  6. A valid Virginia permit to carry a concealed handgun
  7. Private purchase from another individual

Private Sale Transactions

Virginia now requires a background check on a prospective purchaser in a private, person-to-person handgun sale.   Virginia Code 18.2-308.2:5.  Previously there was no prohibition on person-to-person private sales.   Now the law states that “no person shall sell a firearm for money, goods, services or anything else of value unless he has obtained verification from a licensed dealer” that the buyer has undergone a background check. This law was enacted to reduce the chance that a handgun would fall into the hands of a prohibited individual.

Handgun owns wishing to sell their handguns to another unlicensed individual must coordinate with a Licensed Firearms Dealer to ensure that the buyer has undergone a background check.   Firearm’s Dealers can charge the seller a $15.00 fee for handling the seller’s portion of the transaction.  The dealer can also charge a separate fee to the purchaser.   

Failure to comply with the background check requirements is a Class 1 Misdemeanor.  

This is a new law and there are some situations where a gun owner could unintentionally run afoul of the law.   The language of the statute is clear that if you sell your handgun for cash the buyer must undergo a background check.  However, what is not clear is how far a prosecutor could stretch the “anything else of value” language of the statute.   In the wrong circumstances, you could face a criminal misdemeanor charge for a private handgun sale.   If you are not unclear about your rights and responsibilities, please Heath J. Thompson P.C.

Estate Firearms Transfers-  Duties of an Executor

Upon the death of a gun owner, it is important for the executor of the estate to secure the descendants’ firearms.   This is important to ensure that registered and unregistered firearms are not lost or stolen or perhaps more importantly fall into the hands of prohibited persons. Individuals, including executors, that transfer Title1 weapons to a prohibited individual in violation of 18.2-308.2:1 can be found guilty of a Class 4 Felony.    Individuals that transfer Title 2 weapons to an unapproved individual may be found guilty of a Federal Firearms Violation and could be sentenced to five (5) or more years in prison.    

Title 1 Weapons:  Title 1 weapons are ordinary handguns, rifles, and shotguns.   Title 1 firearms can be owned and built by citizens.   Transfers of these weapons must comply with Virginia Code 18.2.308:2:1

Title 2 Weapons:   Title 2 weapons are machine guns, silencers/suppressors, short-barreled- rifles, short-barreled shotguns, and “any other weapons (AOW) that fall under the National Firearms Act (NFA).

To transfer a Title 2 weapon to an heir at law, ATF Form 5320.5, “Form 5” must be completed and approved by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE), PRIOR to the transfer of the item.

To sell a Title 2 estate asset the executor and buyer must complete ATF Form 5320.4,  “Form 4” the form which must be approved by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) PRIOR to the transfer of the item.

Keep in mind that it is unlawful for a non-approved person to be in possession of a Title 2 weapon.   Unlawful possession of a Title 2 weapon otherwise known as an NFA item is a Federal Weapons Violation and punishable up to five years in prison for each item.   

If you are unsure about your rights or responsibilities, please contact Heath J. Thompson P.C. for help.

Executors of estates face the same regulation and potential penalties in the sale/disbursement of estate firearms assets.   If you are an executor of an estate that contains firearms make sure you know your rights and responsibilities prior to distributing or selling the firearms.  If you need help please contact our office.  We now offer “Firearms Executor” services as well as appraisal and brokerage assistance.