What Is a Gun Trust?
A Florida gun trust is a revocable trust that owns certain firearms subject to federal regulation. The gun trust is a trust that includes provisions compatible with federal firearm laws and regulations. The gun trust is an alternative to individual ownership of the firearm. All qualified trustees may share the use and possession of the firearm. Privacy is achieved because the trust may add or delete trustees who can use the firearm without public disclosure.
When using a gun trust, the firearm is owned by the trust itself, not an individual person. With a revocable gun trust, the names of the trustees and beneficiaries can be changed during the grantor’s (or trustmaker’s) lifetime. A gun trust can also be called an NFA trust, Class 3 trust, Firearms trust, or Title II trust.
A Florida gun trust is valid in all states as to federal regulations. However, states have their own firearm laws, and different states have different rules about what Title II weapons are permitted within their state. Firearm owners need to be aware of their own state’s rules and regulations regarding firearm ownership.
Understanding a Florida Gun Trust
The National Firearms Act (NFA) regulates the possession and use of firearms. Title I of the Act pertains to ordinary pistols, rifles, and revolvers. Most firearms in the U.S. are Title I firearms.
Florida law permits ownership of Title I firearms. The NFA does not require reporting the ownership or transfer of Title I firearms to the federal government.
Title II firearms include more advanced weapons, such as machine guns, silencers, suppressors, short barrel shotguns, and other destructive devices (Molotov cocktails, bazookas, etc.). Federal and state laws impose significant regulation of Title II firearms, and transferring these weapons requires filing documents with the government.
NFA Filing and Reporting Requirements for Title II Guns
The federal government changed the rules for transferring Title II firearms in 2016. An individual transferring a Title II firearm must file an ATF Form 4 with the government and pay a $200 transfer fee. Form 4 includes a photograph of the applicant and FBI fingerprint cards. Notice of the application must be given to the chief law enforcement official (CLEO) in the county where the applicant resides.
Who Can Own a Title II Firearm?
Title II firearms may not be owned by “prohibited persons.” A prohibited person includes any individual who has been convicted of a crime punishable by one year or longer, individuals diagnosed with a mental defect, an illegal alien, a person convicted of domestic violence, or a person who uses marijuana (notwithstanding the legality of marijuana in many states). This rule applies to individuals and to trustees of a gun trust.
Federal law makes it illegal for anyone other than a registered owner who is not a prohibited person to have access to or possess a Title II firearm. Violation of the law does not require unauthorized use or possession, and mere dominion and control over the firearm by an unauthorized person is a felony. Violation of this rule is punishable by up to a 10-year prison term and $250,000 in fines.
Therefore, without a gun trust, an individual Title II gun owner who shares their firearm with a friend or family member who is not a registered owner of the firearm or who themselves are a prohibited person risks criminal prosecution.
Important: It may not matter for criminal liability purposes if an unauthorized person did not intend to possess or use a Title II firearm.
Benefits of a Florida Gun Trust
A Florida gun trust may legally purchase and own a Title II firearm. An individual party to a trust that has the authority to manage the trust’s firearms is referred to under federal law as the “responsible person.” Typically, the trustmaker and trustees are the responsible persons. A gun trust provides many benefits over individual ownership of Title II firearms:
- Sharing Use of Firearms. Multiple individuals may not co-own or share a Title II weapon. Multiple trustees of a gun trust, however, may share the same weapon if the trustees are not prohibited persons. Title II firearms may be used by any qualified trustee of a trust. A grantor may add or remove trustees over time. All trustees must not be prohibited persons, must submit paperwork to the government, and cannot transfer firearm possession out of the trust without complying with applicable state and federal regulations.
- Avoid Criminal Liability. In the case of individual firearm ownership, mere access to the firearm by a friend or family member may be a felony. Appointing the same friends or family as trustees avoids criminal liability traps.
- Privacy. A Florida gun trust is a private document. The trusts are not registered with the state, and the public cannot access the trust agreement online. The gun trust will not be filed or recorded upon the trustmaker’s death.
- CLEO. No signature required by the CLEO (chief law enforcement officer).
- Control During Death or Incapacity. In the case of individual firearm ownership, the death of the registered owner may cause the decedent’s firearms to be part of a public probate proceeding. Probate administration may result in the transfer of the Class II firearm to a minor, a prohibited person, or other unauthorized owner. Such transfer could result in government confiscation or a criminal violation of the NFA. Trust firearms are not involved in the decedent’s probate proceedings. The NFA does not consider the inheritance of a firearm by a trust beneficiary to be a regulated transfer. The successor beneficiaries of the trust do not have to file an ATF form, pay a transfer fee, or report to the local CLEO. The remaining trustees, or qualified beneficiaries added as trustees after the grantor’s death, may legally use and control the firearm.
Is a Gun Trust Better than an LLC or Corporation?
Some people consider owning a Title II Firearm in an LLC or corporation. The principal advantage of an LLC or corporation is limited liability. The entity provides the same “corporate shield” from lawsuits that is afforded in normal commerce. The corporate shield limits civil liability and not criminal NFA violations. Shares of a corporation or LLC may be transferred without ATF filing or approval.
The biggest disadvantage of LLC or corporate ownership of firearms is required filings and reports. Entities must submit annual filings to the state of Florida and pay filing fees. Failure to comply will cause administrative dissolution. The dissolution of a legal entity causes the entity’s assets to be automatically distributed to the underlying owners by operation of law. This event probably would constitute an NFA violation.
Also, each corporation or LLC must disclose the entity’s managers or directors on a public state submission. In states where disclosure of managers and directors is not required (e.g., Delaware and others), the corporation or LLC may be “hijacked” by anyone claiming to be a director or manager. On the other hand, a gun trust does not publicly disclose its trustmaker or trustees involved in firearm ownership.
Tip: In almost all cases, it is safer for a Title II firearm to be owned by a gun trust instead of an LLC or corporation.
Disadvantages of Individual Ownership
A person who owns a Title II firearm in their individual name must be with the item at all times when the item is in use. The individual is responsible to keep the Title II weapon in a secure location indicated on the ATF forms with the government. The individual legally is the only person who may even access the weapon.
Florida Gun Trust vs. Revocable Living Trust
A living trust is commonly used to transfer assets upon death without probate. While a Florida gun trust is also a revocable living trust, the gun trust has special provisions to comply with the NFA regulations. A properly drafted gun trust should include at least the following provisions:
- A gun trust should transfer weapons upon the trustmaker’s death only to adult beneficiaries who may legally own the weapon in the beneficiary’s state of residence and who are no prohibited persons pursuant to the NFA.
- The trust document should define “prohibited persons” and ensure that successor or additional trustees are not prohibited persons.
- The original grantor and trustee of the trust should consider that successor trustees may not be knowledgeable about NFA rules. The trust document should explain to successor trustee guidelines for their exercise of discretion in the handling and conveyance of Title II trust firearms.
- Arrangements should be made for termination of the trust and the distribution to responsible and lawfully qualified successor beneficiaries.
- The power to amend or revoke the trust must be restricted so that proposed amendments will not result in a violation of state or federal firearm laws.
- The trust should explain the duties of the trustee to repair and maintain firearms and give trustees powers to store and use firearms.
- The trust must include typical living trust provisions regarding property other than firearms, including cash, that the settlor may contribute to the trust or obtain from the sale of trust firearms.
- Consider appointment of a trust protector to replace trustees when appropriate, modify the trust to comply with changing firearm laws, move the trust to another jurisdiction, or resolve disputes among beneficiaries and trustees without having to engage in formal mediation or litigation.
How to Set Up a Gun Trust in Florida
People cannot purchase a firearm and then transfer the firearm to a gun trust without filing an ATF Form 4 and paying a $200 (2022) Tax Stamp. The best practice is for the gun owner (the trustmaker) to first create the gun trust agreement. Next, the initial trustee should open a trust bank account, and the grantor should contribute to the trust enough money to purchase the firearm. Then, the trustee can purchase the firearm in the name of the trust.
The initial trustees must be responsible people and their names listed on an ATF Form 4 application. Each responsible person in the trust agreement (usually the grantor and all trustees) needs to complete their own ATF Form 23 as an individual. Each initial trustee submits fingerprint cards and a passport photo with an ATF 5320.23 application.
Adding a Trustee to a Gun Trust
Trustmakers can add trustees to a revocable gun trust by amending the trust. Each new trustee must be a responsible person. Adding a trustee to an existing gun trust can be accomplished with a short, printed amendment that refers to the original trust and provides for the addition of one or more trustees.
Adding a trustee through amendment does not require paperwork submissions to the federal government. However, if the trust thereafter acquires a new item requiring a tax stamp, then the new trustees must submit a form 5320.23 together with fingerprints and photos.
Gun Trust Schedules
Most gun trust documents have an attached schedule (usually “Schedule A”) listing firearms owned by the trust. If the trustmaker purchases a new Title II firearm, they can draft a new Schedule including the added item and does not have to amend the trust. The trustmaker may elect not to use any Schedules and instead list initial trust property within the trust agreement.
Newly acquired items can be titled in trust name and transferred to the trust by assignment. A trustmaker must provide a copy of the gun trust including schedules to the ATF and Class 3 dealers. Some people avoid using Schedules to retain privacy over non-Title II items owned in their trust.
Do You Need a Lawyer for a Florida Gun Trust?
Many internet websites sell pre-packaged, standard gun trusts. The customer merely fills in some blanks to generate forms to be submitted to the government. Saving money using website forms may not be the best choice when an innocent error or misunderstanding of website instructions could result in criminal liability and confiscation of the firearm.
For example, a gun trust must comply with Florida trust statutes. An online trust that does not meet all requirements of Florida trust law may be invalid. Some online trust forms do not limit possession of the trust’s firearms so that control and access may inadvertently be given to a prohibited person resulting in criminal liability. Or the person using a pre-made form may pay for the firearm with their own personal money rather than first opening a trust checking account. This direct purchase would be improper and illegal.
Finally, the Florida Supreme Court has held that it is the unauthorized practice of law for a non-lawyer to draft a living trust. A gun trust is a specialized type of living trust. An internet site that drafts a gun trust for a Florida resident may be engaged in the unauthorized practice of law in Florida.
FAQs About Florida Gun Trusts
Below are answers to some commonly asked questions about Florida gun trusts.
How can an individual buy a Title II Firearm?
A person may buy a Title II firearm by filing an ATF Form 1. A person may transfer a Title II firearm to another person on trust by filing an ATF Form 4 and paying a $200 (2022) fee for a tax stamp. These applications will not be approved if applicable state or federal law prohibits the transaction, such as transfers to a prohibited person.
What is the reason for a gun trust?
The purpose of a gun trust is to (1) share firearms legally with family and friends, (2) minimize inadvertent criminal liability associated with Title II firearms, (3) more easily transfer ownership to heirs upon the death of the initial owner and trust creator, and (4) privacy of firearm ownership.
Do you need a gun trust in Florida?
Florida law does not require gun trust. However, without a gun trust, the use and access to a Title II firearm are strictly regulated and restricted to the individual owner.
Are gun trusts legal under federal laws?
Yes. The National Firearms Act (“NFA”) permits a Title II weapon to be owned by either an individual or another legal entity, including a trust.
Can you transfer a firearm you purchased previously to a gun trust?
Yes. The first step is to create a legal gun trust. Then, you can retitle the firearm in the trustee’s name upon paying the federal transfer fee and filing a Form 4. Better to form the gun trust prior to purchase of the firearm so that you only pay stamp tax once upon purchase.
Who may access firearms owned by a gun trust?
The trustees are the only persons who should access trust firearms. The trustmaker can add additional trustees throughout the life of the trust, provided that all trustees are qualified to serve under applicable laws. Some states will have age requirements for gun trust trustees.
Can you put non-Title II firearms in a gun trust?
A gun trust may own any type of firearm, whether or not subject to NFA Title II rules. It’s best to have a separate trust for Title II firearms so that a technical NFA violation causing a forfeiture would not affect Title I firearms owned individually or in a separate trust, and so that you do not reveal Title I items to the government and firearm dealers.