If you own guns, whether they be collectible antiques, hunting rifles, shotguns, pistols, or any other type of guns, you should plan ahead when doing your Estate Planning. New York’s Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013 includes special rules on the transfer of specific types of guns to other individuals. The SAFE Act also helps to provide guidance on the practices that should be followed in regard to guns left to the beneficiaries of your Estate.
When you begin to plan for the way that you want your Estate distributed after you pass away, the distribution of any sort of gun to an Estate beneficiary must be given careful consideration. First, you should keep a list of all guns that you own, as well as their serial numbers and any other identifying information. You should also make sure that you have your guns registered properly when required under New York State law, and that any permits and registrations are up-to-date. For example, New York requires that pistol permits are recertified every five years.
Second, your Last Will and Testament can be drafted according to how you’d like your guns to be distributed. For example, if you’d like the guns to go to a specific person as beneficiary, that can be written into your Last Will and Testament as a specific bequest. That beneficiary must have the proper permits to receive the guns, and must pass a federal background check unless they are an immediate family member. Immediate family members include a spouse, domestic partner, children, and step-children. You can plan ahead by making sure that the intended beneficiary of your guns has the proper permits already.
Planning ahead for the distribution of your guns will also make your Executor’s life easier when it comes to administering your Estate. You should let your intended Executor know that you own guns, as well as their storage location.
When you pass away, whoever is in charge of your guns, whether it be your nominated Executor or someone else, will have 15 days from the date of your passing within which to lawfully dispose of the guns or turn them over to the police for safekeeping. Disposing of a firearm means giving the firearm away, leasing it, selling it, offering it for sale, transferring it, or keeping it for sale.
Before making a transfer of the guns to anyone, the person in charge of the guns must know that you legally owned and possessed the guns and know that the recipient is authorized to legally own a gun, if applicable. Required transfer procedures must also be filed. Failure to comply with these rules could result in criminal liability.
If a valid and lawful transfer or disposal of the guns cannot be made within 15 days of your passing, the guns must be turned over to the police for safekeeping. The police will keep the guns for a period of up to one year and then will dispose of the guns, unless your Executor requests that they be transferred to someone who already has any necessary permits and licensing within that one-year period.
If a transfer of guns to police is necessary, the person in charge of your guns should contact the local police department and let them know that they have guns that need to be turned in, rather than transporting the guns to the police department themselves. The police department will give instructions on how to turn the guns over to them, and may send out an officer to collect the guns.
The SAFE Act applies only to firearms, which are defined as any pistol or revolver, a shotgun having 1 or more barrels less than 18 inches in length, a rifle having 1 or more barrels less than 16 inches in length, any weapon made from a shotgun or rifle whether by alteration, modification, or otherwise if such weapon as altered, modified, or otherwise has an overall length of less than 26 inches, or an assault weapon.
When it comes to pistols, revolvers, assault weapons, or certain types of rifles and shotguns, your Executor or whoever is in charge of the guns must make the transfer to a valid permit holder in the presence of a licensed firearms dealer, who must conduct a federal background check on the recipient, before allowing the transfer of the firearm. This process is not necessary if the transfer is being made to one of your immediate family members who holds the proper permits prior to the transfer. Any recipient, including an immediate family member, must have a valid permit, and must add the gun to the permit prior to the transfer.
However, if you own antique guns that are not kept loaded or with ammunition, long guns, or certain types of hunting rifles or shotguns, which do not fall under the SAFE Act’s definition of firearms, the lawful transfer of such guns may be completed without a federal background check and the presence of a licensed firearms dealer.
Pursuant to the New York Surrogate’s Court Procedure Act (SCPA), the Executor of the Estate will be required to file a Firearms Inventory with the Surrogate’s Court. The Firearms Inventory should list each of your guns, no matter their type or registration requirements, along with their respective identifying information, including their make, model, caliber or gauge, serial number, and value. The Firearms Inventory must also be filed with the New York Division of Criminal Justice Services, which helps to monitor ownership and transfers of firearms in New York State. The Firearms Inventory is a private document, unlike other Surrogate’s Court filings, and is only required to be disclosed to a party interested in the Estate, such as a beneficiary of the Estate. Once it comes time to close your Estate with the Court, your Executor will also need to sign an Affidavit stating that he or she complied with the requirements of the SAFE Act when your guns were distributed.
For more information on the New York SAFE Act, visit the SAFE Act website, located at https://safeact.ny.gov, which includes a frequently asked questions section and interactive tools for looking up your guns to determine the requirements that apply to them. It is also a great idea to contact your Estate Planning attorney for guidance on your obligations when it comes to the distribution of your guns with your Estate, as well the obligations of your family members, intended Executor, and recipients.