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Gun Owners' Frequently Asked Questions about Estate Planning
Can I leave my guns to my family in my will?
Yes, for ordinary (non-NFA) firearms you can name specific beneficiaries in your will. However, your estate must go through Arizona probate court if the value of all of your personal property in the probate exceeds $200,000 first — which is public, time-consuming, and expensive. A revocable living trust is a far better vehicle because it transfers firearms to your loved ones immediately after your death without probate, without court involvement, and without making your firearm inventory a public record.
What is an NFA firearm and why does it require special estate planning?
NFA firearms are federally regulated items including machine guns, suppressors (silencers), short-barreled rifles, short-barreled shotguns, destructive devices, and any other weapons (AOW). They are registered in the National Firearms Registration and Transfer Record. Transferring an NFA item — even to a family member — without ATF approval is a federal felony punishable by up to 10 years in prison and a $250,000 fine.
Does a beneficiary have to pay the $200 NFA tax stamp to inherit a suppressor or machine gun?
No. When an NFA item is inherited, the transfer is tax-exempt. The executor or trustee must file ATF Form 5 (Application for Tax Exempt Transfer and Registration) and receive ATF approval before physically transferring the item to the beneficiary. The $200 transfer tax does not apply to bona fide inheritances.
What happens if a beneficiary is a prohibited person?
Federal law prohibits transferring any firearm to a person who is a convicted felon, subject to a domestic violence restraining order, an unlawful drug user, adjudicated mentally defective, or otherwise prohibited under 18 U.S.C. § 922(g). If your intended beneficiary is a prohibited person, the firearm cannot be transferred to them. Your estate plan must account for this with an alternate beneficiary.
Who Is a Prohibited Person?
Federal law outlines nine distinct categories of individuals (prohibited persons) who lose their firearm privileges:
Convicted Felons: Anyone convicted in any court of a crime punishable by imprisonment for a term exceeding one year. (This generally covers felonies, but it can also apply to state-level misdemeanors that carry long maximum sentences).
Fugitives from Justice: Anyone who has fled from any state to avoid prosecution for a crime or to avoid giving testimony in a criminal proceeding.
Unlawful Drug Users or Addicts: Anyone who is an unlawful user of, or addicted to, any controlled substance. Note: Because marijuana remains federally illegal, the federal government considers medical or recreational marijuana users to be prohibited persons, regardless of state laws.
Certain Mental Health Adjudications: Anyone who has been formally adjudicated as a “mental defective” (found by a court or board to lack mental capacity or to be a danger to themselves or others) or who has been involuntarily committed to a mental institution.
Illegal or Nonimmigrant Aliens: Anyone who is illegally or unlawfully in the United States, as well as most individuals admitted under a nonimmigrant visa (subject to specific exceptions, such as holding a valid hunting license).
Dishonorably Discharged Veterans: Anyone who has been discharged from the U.S. Armed Forces under dishonorable conditions.
Former Citizens: Anyone who has formally renounced their United States citizenship.
Subjects of Domestic Violence Restraining Orders: Anyone subject to an active court order restraining them from harassing, stalking, or threatening an intimate partner or their child. The order must have been issued after a hearing where the person had notice and an opportunity to participate.
Misdemeanor Domestic Violence Convictions: Anyone convicted of a misdemeanor crime of domestic violence involving the use or threatened use of physical force.Individuals Under Indictment (18 U.S.C. § 922(n))
It is also a severe federal offense for any person to knowingly sell, trade, or give a firearm or ammunition to someone they know—or have reasonable cause to believe—fits into any of the prohibited categories above.
Can I transfer my firearms to a family member in another state?
For long guns (rifles and shotguns), an estate can generally transfer to a beneficiary in another state if the transfer complies with both states' laws. For handguns, federal law prohibits direct transfer across state lines to a non-licensed individual. The transfer must go through a federally licensed firearms dealer (FFL) in the beneficiary's state.
Can I store my guns in my living trust during my lifetime and still use them?
Yes, but you must have a detailed inventory of all your firearms that you give to your successor trustee. Always update this list when acquire or dispose of firearms.
When you create a revocable living trust, you are the trustee. You control the trust and everything in it. Your firearms are titled to the trust, but you continue to possess and use them exactly as you do today. Nothing changes in your daily life. The trust structure only becomes operationally significant when you die or become incapacitated.
What happens to my NFA items if I die without a plan?
If you die without a will or trust, your estate passes under Arizona's intestate succession laws. Your administrator will still have to file ATF Form 5 for each NFA item before distributing it to the heir. If the heir is a prohibited person, lives in a state that bans the NFA item, or is a minor, your family will face complications with no roadmap to follow. This is exactly the situation a well-drafted estate plan prevents.
DISCLAIMER: This article is provided for general informational purposes only and does not constitute legal advice for any individual case or situation. Reading this article does not create an attorney-client relationship. Estate planning laws change. Please consult a qualified Arizona attorney for advice specific to your circumstances.
See the Contents of Our Estate Plan
To protect your most valuable assets—your loved ones— read our article that describes the 36 documents and services you will get if you hire us to prepare your comprehensive estate plan with a revocable living trust or watch our video about the documents and services.
Questions? Book a free meeting or call or email one of our Arizona estate planning attorneys. We don't charge to talk to people.
Call or email Richard Keyt, the father
Direct phone: 480-664-7478
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Call or email Richard C. Keyt, the son
Direct phone: 480-664-7472
Email: [email protected]