A decedent’s registered NFA firearms may be conveyed taxexempt to lawful heirs. These distributions are not treated as voluntary “transfers” under the NFA. Rather, they are considered to be involuntary “transfers by operation of law.” Under this concept, ATF will honor State court decisions relative to the ownership and right to possess NFA firearms. So, when State courts authorize the distribution of estate firearms to decedents’ lawful heirs, ATF will approve the distribution and registration to the heirs if the transactions are otherwise lawful. A lawful heir is anyone named in the decedent’s will or, in the absence of a will, anyone entitled to inherit under the laws of the State in which the decedent last resided.
Distributions to Heirs
Although these distributions are not treated as “transfers” for purposes of the NFA, Form 5 must be filed by an executor or administrator to register a firearm to a lawful heir and the form must be approved by ATF prior to distribution to the heir. The form should be filed as soon as possible. However, ATF will allow a reasonable time to arrange for the transfer. This generally should be done before probate is closed. When a firearm is being transferred to an individual heir, his or her fingerprints on FBI Forms FD-258 must accompany the transfer application. The application will be denied if the heir’s receipt or possession of the firearm would violate Federal, State, or local law. The law enforcement certification on the form need not be completed. The form should also be accompanied by documentation showing the executor’s or administrator’s authority to distribute the firearm as well as the heir’s entitlement to the firearm. Distributions to heirs should not be made until Forms 5 are approved. Executors and administrators are not required to have estate firearms registered to them prior to distribution to lawful heirs.
Distributions to Persons Outside the Estate
Distributions of NFA firearms by executors or administrators to persons outside the estate (not beneficiaries) are “transfers” under the NFA and require an ATF-approved transfer form. Transfers of serviceable firearms to other entities or persons require an approved Form 4. Form 4 applications must be accompanied by the applicable transfer tax, and, if the transferee is an individual, the transferee’s fingerprints on FBI Forms FD-258. Applications will be denied if transferees’ receipt or possession of the firearms would violate Federal, State, or local law. Also, Form 4 applications to transfer firearms to individuals must contain the law enforcement certification of an appropriate law enforcement official. Form 4 applications to transfer firearms to non-FFLs residing outside the State in which the estate is being administered will be denied. Form 4 transfers should not be made until the transfers are approved.
Uncertainty about the Registration Status of Decedents’ Firearms
In some cases, an executor or administrator of an estate may be uncertain whether the decedent’s firearms are registered to the decedent in the NFRTR. Perhaps the executor or administrator is unable to locate the decedent’s registration documents. As discussed in above, if the decedent’s firearms are not registered to him/her in the NFRTR, the firearms are contraband and may not be lawfully possessed or transferred. If the executor or administrator cannot locate the decedent’s registration documents, he/she should contact the NFA Branch in writing and inquire about the firearms’ registration status. This inquiry should be accompanied by documents showing the executor’s or administrator’s authority under State law to represent the decedent and dispose of the decedent’s firearms. Although ATF is generally prohibited from disclosing tax information, including the identity of persons to whom NFA firearms are registered, ATF may disclose such information to persons lawfully representing registrants of NFA firearms.
Unregistered Estate Firearms
Should an estate contain NFA firearms not registered to the decedent, these firearms are contraband that may not be lawfully possessed or transferred. Where these are found within an estate, the executor or administrator should contact his/her local ATF office and arrange for their disposal.