Leaving a gun to someone in your will can present a number of complications in the administration of your estate. New York law doesn’t allow an executor or beneficiary to simply take possession of a gun when they take over the estate of a gun owner. There are issues pertinent to gun ownership which must be considered in order to avoid complications and potential legal liability in estate planning and estate administration.
New York fiduciaries (executors or administrators) must take additional steps when marshaling and distributing a decedent’s firearms, including the following:
- Taking possession of the gun. An executor cannot simply possess a firearm. New York law makes it a felony to possess a firearm without a proper license and registration. New York penal law provides that an executor or administrator can only possess a weapon for 15 days for purposes of lawfully disposing of it (selling it, transferring it). After that, it must be turned over to police (or other designated official) who will release it upon written request from the fiduciary. If no request to deliver the property is made within one year of the delivery of the weapon, it may be sold or destroyed by the police.
- Filing a separate inventory. Fiduciaries are required to file an inventory of the estate’s assets. They must also file a separate inventory of every firearm, shotgun and rifle (as defined in section 265.00 of the Penal Law), including the make, model, serial number and valuation of each firearm. Some guns are not “firearms,” but must still be reported to the Court on the inventory – i.e. rifles and shotguns with barrels less than 16 and 18 inches long, respectively.
This inventory is not available to the public except with court permission, but may be accessed by persons “interested in the estate”. A copy is also filed with the Division of Criminal Justice Services in Albany.
- Distributing to a beneficiary. An executor cannot transfer a firearm to a beneficiary who does not have the required license or permit. In the event the firearm is to be sold, the executor should seek the assistance of a licensed firearm dealer to handle the sale and ensure compliance with applicable regulation (for example, the completion of a background check for a buyer).
Gun owner responsibilities
In order to avoid or minimize obstacles and complications for the estate, gun owners should take the following steps:
- Make an inventory of your firearms prior to death. This will let the executor know that you have firearms, where they are, what licenses you hold, etc.
- Be careful in selecting beneficiaries. Don’t bequeath your guns to someone who might be ineligible (i.e. has a criminal record).
- Encourage beneficiaries to obtain appropriate permits as soon as possible.
- Transfer guns during your life, either by sale or lifetime gifts to family. If your estate is below the New York State estate tax threshold, your gift will likely have no estate tax impact. If your estate is above the estate tax threshold, it may still have no impact if your annual gifts do not exceed $14,000 per donee (i.e. are below the annual gift tax exemption).
- Gift or sell guns to an entity or charity (ex. Boy Scouts, local gun club, etc.).
If you are a gun owner or are handling the estate of a gun owner, consult a qualified attorney to ensure you act in compliance with gun laws.
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