From time to time, the question comes up, can a person who cannot pass a background check to purchase a firearm, legally possess the firearms he already owns? The answer lies in the federal legislation that regulates firearm purchases and possession, chiefly 18 U.S. Code § 922, part of the Gun Control Act of 1968. (Yes, it’s almost 50 years old).
New legislation affects local governments wanting to prohibit handgun permit holders from possessing handguns on property owned or controlled by local governments. Public Chapter 0467 is the result of House Bill 508 and Senate Bill 445. Note that it does not apply to property owned by the state.
An occasional question that comes up in drafting a will, is whether the person making a will can disinherit a child. The simple answer is that in Tennessee, parents can disinherit a son or daughter. No reason needs to be stated in the will.
Some think they must leave a child a dollar. That is not correct. Leaving someone a dollar can be troublesome for the executor. Before probate can be closed, a receipt must be filed for each beneficiary. A beneficiary who receives only $1.00 may not feel like cooperating and require extra filings and additional court proceedings to close the estate.
Caution should be exercised in disinheriting a child. Disinheriting children often results in hard feelings and family discord. The disinherited child may claim that the beneficiaries of the will used undue influence on the parent to receive a larger share of the estate. This may result in an expensive will contest lawsuit and trial.
Although children may be disinherited, a spouse may not. In Tennessee, a surviving spouse is entitled to an elective share of the estate, regardless of what the will provides. The percentage of the spouse’s share depends on the length on marriage.
Disinheriting a child should be carefully discussed with an attorney when drafting a will. There are numerous facts that should be taken into account, including how the language of the will should reflect how children are treated.
If you would like to speak to James Wagner on this or any other matter, he may be reached at (865) 546-9321.
In Tennessee, like most states, estates frequently include the decedent’s firearms. There are legal concerns for the executor1 concerning distributing the firearms to beneficiaries or heirs of an estate. These can involve a beneficiary who is disqualified from possessing a firearm, or too young to take possession. There may even be concerns about the legality of the firearm itself, see What Do You Do with Grandpa's Machine Gun.
The federal National Firearms Act (NFA) regulates such items as machine guns, short-barrel rifles and shotguns and suppressors. New regulations, effective July 13, 2016 affect so-called gun trusts and possession of items by the executor of the estate of the owner.
The U.S. Supreme Court has issued an opinion applying the Second Amendment right to keep and bear arms to stun guns. The case is Caetano v. Massachusetts. It involved a woman who was carrying a stun gun as protection against a former boyfriend. On one occasion, she had to display and threaten to use the stun gun to force him to leave her alone. Police discovered she had the stun gun, which was prohibited by Massachusetts law. Ms. Caetano was convicted of the heinous crime and the conviction was upheld by that state’s courts, which said stun guns were not the type of weapon protected by the Second Amendment.
It comes as a surprise to many that federal law strictly regulates transfers of firearms between residents of different states. This is not something new. It is part of the Gun Control Act of 1968, 18 U.S. Code §922.
Possession of weapons in parks is governed by Tenn. Code 39-17-1311. Generally, it is an offense for a person to carry certain weapons in or on the grounds of any public park owned by the state, counties, cities or towns. There are exceptions for law enforcement officers, security guards and others. This article concerns the exception for handgun permit holders.
A person who has been “adjudicated as a mental defective” or who has been committed to a mental institution may not lawfully possess firearms or ammunition under federal and Tennessee law. 18 U.S. Code §922 and Tenn. Code. Ann. §39-17-(f)(1)(C).
Perhaps the biggest, and least noticed, change in Tennessee firearms law is Tenn. Code §39-17-1307(e). This provision allows anyone who can legally possess a “firearm” (handgun, rifle or shotgun) to possess or carry a firearm and ammunition in a motor vehicle of which they lawfully possess. (An armed car thief gets no benefit from this defense).
Duties of the personal representative or executor of an estate (I’ll use ‘executor’ for both) include gathering, protecting and distributing assets that belonged to the deceased. In this part of the country, firearms are frequently part of the estate. After the firearms are safely unloaded and securely stored, it’s time to decide what you have.
In 2013, Tennessee enacted the so-called “guns in trunks law”, Tenn. Code §39-17-1313. This provided a defense to a criminal prosecution for a handgun carry permit holder, if parked on property where the owner prohibited firearm possession. However, the statute did not specifically prohibit an employer from firing an employee for violating a “no guns” policy of the business. This changes when a new law takes effect July 1, 2015.
The National Firearms Act (NFA) regulates such items as machine guns, short-barrel rifles and shotguns and suppressors. Some persons choose to have a trust own the NFA-regulated item, rather than own them as an individual.
A trust is a legal entity that is separate from the individuals, much like a corporation or LLC, to hold property for someone else, called a beneficiary. A trust is set up by a grantor or settlor. A trustee (who also can be the settlor), then manages the trust property for the beneficiary or beneficiaries.
In 1989, Tennessee substantially revised its criminal laws. The revisions changed everything from definitions used in the statutes to sentencing. One of the changes strengthened the law of self-defense and defense of others, when the use of force occurred in one’s home:
So-called "stand your ground" laws have been in the news recently. A great deal of the commentary has lacked understanding, been misinformed or just plain wrong. Essentially, these laws provide that when a person is threatened with force, they have no duty to retreat before using force to defend themselves. If the threat involves the risk of death or serious injury, the person can use deadly force in self-defense.
Note: Since this article, restoration of firearms rights may be possible for person who has been adjudicated as a mental defective or who has been committed to a mental institution under recent legislation. See Restoration of Firearm Rights After Judicial Commitment blog for details.