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.
First, federal law, 18 U.S. Code §922(d), prohibits transfers to certain persons. Transfers are illegal, if the transferor knows or has reasons to know the recipient:
- is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
- is a fugitive from justice;
- is an unlawful user of or addicted to any controlled substance;
- has been adjudicated as a mental defective or has been committed to any mental institution;
- who, being an alien—(A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
- who has been discharged from the Armed Forces under dishonorable conditions;
- who, having been a citizen of the United States, has renounced his citizenship;
- is subject to an order of protection (as defined in the statute; or
- has been convicted in any court of a misdemeanor crime of domestic violence.
How does this statute apply in the real world of estates? The executor may be the decedent’s spouse, a close relative or family friend. The executor may know or have reason to know that the beneficiary is a convicted felon, is subject to an order of protection, a drug addict, or one of the other prohibited categories. Transferring a firearm to such a person is not only illegal, it may expose the executor and the estate to civil liability if the recipient harms someone or even himself.
What if the beneficiary is a resident of another state? Normally, federal law prohibits residents of different states from transferring firearms to each other. However, there is an exception under 18 US Code § 922(a)(5) for executors when a beneficiary is a resident of another state. Note, this does not authorize the executor to “ship” a firearm to someone who lives in another state. The transfer would have to be accomplished by the executor delivering the firearm to a federally licensed dealer in his state, who then ships the firearm to a dealer in the recipient’s state, who makes the final transfer to the beneficiary. This will require fees to the dealers, shipping costs and the receiving dealer must perform a background check before making the transfer.
If the beneficiary is disqualified from possessing a firearm, what does the executor do? The executor cannot violate the law by making an illegal transfer. If there is a bequest of a specific firearm to a beneficiary, with an agreement of the beneficiary, the firearm could be sold and the proceeds given to the beneficiary. Other arrangements could be made for substitute property, if other beneficiaries agree. Absent an agreement, the executor should consult an attorney and ask for instructions from the probate court.
Additional concerns arise if the beneficiary is a minor. Under § 39-17-1303, it is an offense to give a firearm to a minor (though the statute provides a defense if loaned for hunting or lawful sporting activity). There are additional state and federal restrictions on minors possessing handguns. See Tenn. Code Ann. § 39-17-1319 and 18 U.S. Code § 922(x). In the case of a minor, the safer course may be to use the Uniform Gifts to Minors Act so a responsible person takes possession of the firearm until the minor reaches legal age.
This is one area of estate administration where an executor must be aware of state and federal statues regarding distributing estate property.
If you would like to speak to James Wagner on this or any other matter, he may be reached at (865) 546-9321.
(1) Throughout this article, I will use the term “executor” to include “personal representatives”.