Few topics are as polarizing as guns and the controversy that inevitably surfaces over the second-amendment right to bear arms. Guns have dominated the headlines the past few weeks after yet another school massacre—this time in Florida. Angry kids, moms and others are increasingly vocal about the need to enact stricter gun control legislation, yet there remains opposition by gun owners, politicians and the NRA.

California: Stringent laws for passing guns from one generation to the next

As the nation struggles with gun-control issues, you may be surprised that California has some of the strictest laws in the country, including those that regulate the passing of firearms from one generation to the next. So restrictive are California’s regulations that some people have moved out of state to avoid them. Regulations vary not only by what weapon is to be inherited, but by who is in line to receive them. Assault weapons are for all practical purposes nontransferable, and if the relative to whom you’d like to bequeath a gun is a drug addict or ex-felon, be aware that the transfer is illegal.

Yet millions of Americans have sizeable, sometimes valuable collections of guns for hunting or target shooting and may have antique guns that are prized family heirlooms. And now they’re preparing their Living Trusts, deciding how they will allocate their gun collections to their heirs. There are some important things to keep in mind.

Categories of severely restricted firearms 

“Severely restricted” describes that category of weapons which is heavily regulated, such as assault weapons, including the Florida shooter’s AR-15, an AK-47 or an Uzi. California is intent on eliminating severely restricted weapons by making their transfer nearly impossible.

What happens to severely restricted firearms when their owner dies? The weapons must be:

• Removed from California
• Sold to a federally licensed firearms dealer
• Destroyed
• Turned over to law enforcement

The safest and simplest way to transfer a firearm from one person to another, even in distribution of an estate, is through a Federal Firearms Licensee (FFL) who also has the necessary California licenses to deal in firearms. Not only do such dealers know firearms, but they can carry out required background checks on intended recipients.

What about antique firearms–those manufactured before 1899

• Curios, antiques or relics are those firearms of “special interest to collectors” by reason of some quality other than is associated with firearms intended for sporting use. These weapons must be at least 50 years old and derive monetary value for their owners.
• Antiques, curios and relics can legally be transferred without going through an FFL, but a qualified FFL should verify a firearm’s classification before transfer.
• Since January of 2014, transfer of antiques, curios and relics can’t be made unless the recipient has both a California Certificate of Eligibility and a Federal Curio or Relics license. The firearm must be registered with the California Department of Justice.

Here’s where it begins to get complicated . . .

Let’s say you want to leave your vintage Winchester rifle to your cousin Alfred, who served time for robbery in 2000. You also want your sister, Britt, to receive your Beretta. Everyone loves Britt; she’s got a big heart but also a bit of a substance-abuse problem and can’t seem to stay clean and sober or out of rehab for long. You’d also like to leave some of your gun collection to your nephew Brian—he’s just 13, but very responsible; he’s been hunting since he was five and understands gun safety rules.

You can’t transfer or bequeath shotguns or rifles to minors, and a minor who possesses such weapons cannot be prosecuted, but anyone who gives, sells, bequeaths or transfers a gun to someone under 18–including the executor of a Will–can be criminally liable for doing so. In California, minors can’t own handguns, and they themselves can be prosecuted in juvenile court for possession. There are certain exceptions, such as having the written consent of parents or legal guardians if weapons are for target shooting or hunting.

Who ends up on the no-gun list?

For Executors or Trustees, those prohibited by federal or California law from possessing rifles, pistols or shotguns include:

• Convicted felons. If someone has been convicted of a crime and served time, that person cannot legally own a gun.
• Anyone convicted of domestic violence or is under a restraining order from an intimate partner and is found to present a threat to that person or to that person’s children’s safety is ineligible to own a gun.
• Those who unlawfully use or are addicted to narcotics. Narcotics use does not include spirits or tobacco, so chronic alcoholics, unless they are mentally ill, are not prohibited from owning firearms.
• Anyone found by the courts to be mentally defective or who has been committed to a mental institution. This includes those deemed by a court to be a danger to others, mentally disordered sex offenders, and those found not guilty of a crime by reason of insanity or found mentally incompetent to stand trial. It also includes those in custody because they present a danger to themselves or others, individuals undergoing intensive treatment for mental illness, and those placed in a conservatorship because of a grave disability caused by a mental disorder or chronic alcoholism.
• Anyone who has violated probation, restraining orders or injunctions by possessing firearms is in violation of California law.

California also has a longer list of misdemeanors–those involving violent or aggressive behavior–that generally result in a ten-year ban on firearm possession.

Conditions for families transferring firearms

Guns may be transferred from parent to child, child to parent, grandparent to grandchild, or grandchild to grandparent as long as all live in California and all children and grandchildren are 18 or older, 21 for handguns. Note that no more than five such family transfers can be made each year.

• Recipients must first obtain a firearm safety certificate, issued by a licensed dealer after a written test is passed.
• Those receiving anyfirearm (including rifles and shotguns) must have general firearm safety certificates.
• Transfers between spouses or domestic partners must go through dealers, and the receiving spouse or partner must have a safety certificate.
• A firearm may only have one registered owner who must pass a background check.

Becoming Executor of an estate that involves the transfer of firearms requires becoming familiar with laws relating to their storage, transportation and transfer. If there are questions, an FFL will be able to help you legally manage a firearm transfer.

We encourage everyone to create a Living Trust

This issue of transferring firearms provides a window into some of the responsibilities that an Executor may encounter. We encourage our clients to think carefully about the people they choose for this role, which is an important part of the Living Trust process. If you need to create or update your Trust, contact California Document Preparers at one of our three Bay Area offices today to schedule an appointment. Our dedicated team is helpful, compassionate and affordable.