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littlejake
05-12-2012, 6:55 PM
I've read where a several people have set up trusts; and through that trust are able to procure and possess AOWs and some NFA items.

I'd like to gauge how common the practice is -- I not asking who you are; just how many will acknowledge it via a poll.

I've set the poll options to anonymous.

Kindest Regards,

Jake

blakdawg
05-13-2012, 10:46 AM
Not very common in CA because we don't get to play with NFA stuff. Also, it sounds like ATF is doing away with the CLEO requirement for NFA stamps.

guntrust
05-13-2012, 6:31 PM
There are many good reasons to hold both NFA and non-NFA firearms in trust, even if CLEO signoff requirement disappears.

Josh3239
05-13-2012, 6:49 PM
A buddy of mine is a lawyer and offered to write me a trust for free. When I get some cash I'm gonna take him up on his offer and get me an AOW AR pistol and AOW shotgun from EBR Works.

littlejake
05-13-2012, 6:50 PM
There are many good reasons to hold both NFA and non-NFA firearms in trust, even if CLEO signoff requirement disappears.

Like ability to inherit the trust and the firearms in the trust even if they should become a banned. Example: A RAW cannot be passed on by bequest in CA. But, a RAW inside a trust could in theory because it's the trust that owns the RAW. (Of course the RAW would have to be in the trust when registered as a RAW -- and those deadlines are long past) But, sometimes history repeats itself. Am I in the ball park on that line of reasoning?

guntrust
05-14-2012, 8:13 AM
Like ability to inherit the trust and the firearms in the trust even if they should become a banned. Example: A RAW cannot be passed on by bequest in CA. But, a RAW inside a trust could in theory because it's the trust that owns the RAW. (Of course the RAW would have to be in the trust when registered as a RAW -- and those deadlines are long past) But, sometimes history repeats itself. Am I in the ball park on that line of reasoning?

Yes, and there are quite a few others. For example, avoiding constructive possession of NFA items. I'm working on a ppt vid on this topic but haven't had time to finish yet and i want it to be general but thorough.

I drafted a new form of gun trust recently for a gentleman pleading guilty to a felony/misdemeanor wobbler, where there exists the possibility of having his rights restored in around five years.

Also looking into the possibility of using these to protect against restraining orders in divorce situations--not sure about that yet as there are more hurdles.

blakdawg
05-14-2012, 11:47 AM
Like ability to inherit the trust and the firearms in the trust even if they should become a banned. Example: A RAW cannot be passed on by bequest in CA. But, a RAW inside a trust could in theory because it's the trust that owns the RAW. (Of course the RAW would have to be in the trust when registered as a RAW -- and those deadlines are long past) But, sometimes history repeats itself. Am I in the ball park on that line of reasoning?

No, there are two problems with that (other than the time travel):

1. From a state law property ownership point of view, trusts do not exist as distinct or separate entities; so it is not correct that "it's the trust that owns the RAW." The trustee(s) would own the RAW, with all of the implications of that.

This might create an interesting question if history were to repeat itself, and a "new RAW" were placed in trust and then registered by the trustee, and the trustee changed for whatever reason after a new registration period had closed. Because ownership changes when trusteeship changes, that would theoretically violate the prohibition on transfer of an RAW, and might lead to seizure/forfeiture of the RAW.

My general suggestion is to avoid interesting questions; especially if the people who are going to enjoy the litigation aren't the person who set the thing up, but the kids/family/friends left behind.

You could avoid that question by using an entity like a corporation or an LLC instead - but the problem with that is that the minimum yearly fee to maintain such an entity is $800, payable to our friend the State of California. If you're talking about protecting $100K worth of collectible guns, not such a big deal. If you're talking about paying $800 a year to protect an $800 gun, well . . .

2. The law regulating RAW's discusses possession; so even if you used a different form of ownership (LLC, corp, unincorporated association, whatever), possession of the RAW would be forbidden. See, e.g., CA Penal Code 30605:
(a) Any person who, within this state, possesses any assault weapon, except as provided in this chapter, shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. . .

And, for reference, here's Penal Code 16970:

16970. As used in Sections 16790 and 17505 and in Chapter 2 (commencing with Section 30500) of Division 10 of Title 4, "person" means an individual, partnership, corporation, limited liability company, association, or any other group or entity, regardless of how it was created.

.. so if trust property is treated as owned by one or more individual trustees, it'll be subject to restrictions on what a "person" can do; and if trust property is owned by any other creation described by the above language, it'll also be subject to restrictions on what a "person" can do.

blakdawg
05-14-2012, 11:54 AM
There are many good reasons to hold both NFA and non-NFA firearms in trust, even if CLEO signoff requirement disappears.

Can you list any good reasons that are specific to firearms? Also, other than short-barreled shotguns, what NFA items can be legally possessed or used in California?

I will readily agree that trusts are a good vehicle for estate planning generally, I'm trying to understand why a gun owner with ordinary CA-legal guns would approach estate planning in a different fashion than a non-gun owner.

Capybara
05-14-2012, 12:13 PM
If you can find them, C&R SBS and SBRs as long as they don't violate AW laws. I have been looking, they are pretty elusive.

Technically, you could own a flashlight gun except you would have to SSE it and nobody is setup to SSE flashlights that I know of.

You can have a pistol with a VFG (I don't know why would want that) but there are some cool HK MP5 clones out there with a VFG, that makes sense.

Plus there are all of the legal upsides about your family and your NFA weapons if you die. I keep hearing the rumor though that the ATF is doing away with the CLEO signature. A trust is about $500.00 to $600.00 for a lawyer to setup.

odysseus
05-14-2012, 12:22 PM
I agree, a Trust cannot possess the property. Only the active Trustee can.

Therefore in my thinking this calls even more so for the point that California RAW owners should be able to, like ANY other legal property, be able to list it in the Trust (and perhaps change registration of it if needed by BOF/DOJ) for successive inheritance as other property in the Trust, of course minding the legality of the person as successor Trustee or beneficiary (non felon, legal age).

The fact that this basic point is not able to happen to me is a blaspheme against private property rights and the 2nd Amendment. But it remains that we cannot do this, erroneously.

No, there are two problems with that (other than the time travel):

1. From a state law property ownership point of view, trusts do not exist as distinct or separate entities; so it is not correct that "it's the trust that owns the RAW." The trustee(s) would own the RAW, with all of the implications of that.

This might create an interesting question if history were to repeat itself, and a "new RAW" were placed in trust and then registered by the trustee, and the trustee changed for whatever reason after a new registration period had closed. Because ownership changes when trusteeship changes, that would theoretically violate the prohibition on transfer of an RAW, and might lead to seizure/forfeiture of the RAW.

My general suggestion is to avoid interesting questions; especially if the people who are going to enjoy the litigation aren't the person who set the thing up, but the kids/family/friends left behind.

You could avoid that question by using an entity like a corporation or an LLC instead - but the problem with that is that the minimum yearly fee to maintain such an entity is $800, payable to our friend the State of California. If you're talking about protecting $100K worth of collectible guns, not such a big deal. If you're talking about paying $800 a year to protect an $800 gun, well . . .

2. The law regulating RAW's discusses possession; so even if you used a different form of ownership (LLC, corp, unincorporated association, whatever), possession of the RAW would be forbidden. See, e.g., CA Penal Code 30605:


And, for reference, here's Penal Code 16970:



.. so if trust property is treated as owned by one or more individual trustees, it'll be subject to restrictions on what a "person" can do; and if trust property is owned by any other creation described by the above language, it'll also be subject to restrictions on what a "person" can do.

blakdawg
05-14-2012, 7:28 PM
If you can find them, C&R SBS and SBRs as long as they don't violate AW laws. I have been looking, they are pretty elusive.

Are you sure about this?

I believe you are referring to the language in 30515(c):"Assault weapon" does not include either of the following:
(1) Any antique firearm.

.. and Penal Code 16170 says:

16170. (a) As used in Sections 30515 and 30530, "antique firearm"
means any firearm manufactured before January 1, 1899.
(b) As used in Section 16520, Section 16650, subdivision (a) of
Section 23630, paragraph (1) of subdivision (b) of Section 27505, and
subdivision (a) of Section 31615, "antique firearm" has the same
meaning as in Section 921(a)(16) of Title 18 of the United States
Code.
(c) As used in Section 17700, "antique firearm" means either of
the following:
(1) Any firearm not designed or redesigned for using rimfire or
conventional center fire ignition with fixed ammunition and
manufactured in or before 1898. This includes any matchlock,
flintlock, percussion cap, or similar type of ignition system or
replica thereof, whether actually manufactured before or after the
year 1898.
(2) Any firearm using fixed ammunition manufactured in or before
1898, for which ammunition is no longer manufactured in the United
States and is not readily available in the ordinary channels of
commercial trade.

I italicized the part I suspect you're thinking of; and 18 USC 921(a)(16) says:

(16) The term “antique firearm” means—
(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if such replica—
(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term “antique firearm” shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.

.. my concern is that you (or someone you trust) has confused the term "antique firearm" with the term "curio or relic", which is also of interest when talking about federal law, and it's defined in 27 CFR 478.11:

(a) Firearms which were manufactured at least 50 years prior to the current date, but not including replicas thereof;

(b) Firearms which are certified by the curator of a municipal, State, or Federal museum which exhibits firearms to be curios or relics of museum interest; and

(c) Any other firearms which derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event. Proof of qualification of a particular firearm under this category may be established by evidence of present value and evidence that like firearms are not available except as collector's items, or that the value of like firearms available in ordinary commercial channels is substantially less.

and as you can see, those two definitions are not all that similar - in particular, there are a lot of guns floating around that are more than 50 years old but are safe to use with contemporary ammunition and which are perfectly viable weapons - but not so many that fit that description were manufactured prior to 1899.

Technically, you could own a flashlight gun except you would have to SSE it and nobody is setup to SSE flashlights that I know of.


Ok, you got me there, I don't think I've even heard of a flashlight gun, and I have no idea WTF one is, or what one would do with one. :)

You can have a pistol with a VFG (I don't know why would want that) but there are some cool HK MP5 clones out there with a VFG, that makes sense.

Ok, but we've got to obey the AW laws, so that VFG pistol can't have a detachable magazine or hold > 10 rounds. That (plus $200 and NFA paperwork) pretty much takes the fun out of it for me.

ke6guj
05-14-2012, 8:27 PM
Are you sure about this?

I believe you are referring to the language in 30515(c):

.. and Penal Code 16170 says:



I italicized the part I suspect you're thinking of; and 18 USC 921(a)(16) says:



.. my concern is that you (or someone you trust) has confused the term "antique firearm" with the term "curio or relic", which is also of interest when talking about federal law, and it's defined in 27 CFR 478.11:



and as you can see, those two definitions are not all that similar - in particular, there are a lot of guns floating around that are more than 50 years old but are safe to use with contemporary ammunition and which are perfectly viable weapons - but not so many that fit that description were manufactured prior to 1899.
nope, he is talking about C&R.



17705. (a) The provisions listed in Section 16590 do not apply to
any firearm or ammunition that is a curio or relic as defined in
Section 478.11 of Title 27 of the Code of Federal Regulations and
that is in the possession of a person permitted to possess the items
under Chapter 44 (commencing with Section 921) of Title 18 of the
United States Code and the regulations issued pursuant thereto.




Ok, you got me there, I don't think I've even heard of a flashlight gun, and I have no idea WTF one is, or what one would do with one. :)
here you go, http://www.thefirearmblog.com/blog/2011/04/25/csg-maglite-flashlight-gun/
http://cdn5.thefirearmsblog.com/blog/wp-content/uploads/2011/04/410compb-tm-tfb.jpg

blakdawg
05-14-2012, 8:59 PM
nope, he is talking about C&R.
17705. (a) The provisions listed in Section 16590 do not apply to
any firearm or ammunition that is a curio or relic as defined in
Section 478.11 of Title 27 of the Code of Federal Regulations and
that is in the possession of a person permitted to possess the items
under Chapter 44 (commencing with Section 921) of Title 18 of the
United States Code and the regulations issued pursuant thereto.


Ok, but that only gets you exemption from the 16590 prohibition, not an exemption from the definition of a AW .. which says no rifles < 30 OAL, no pistol grips + detachable mags, etc.

If what this boils down to is that by setting up an NFA trust you can have a $900 combination flashlight/single-shot shotgun, umm, ok . . . that's cool, if that floats your boat, but it seems like a pretty obscure project.

I'm still trying to understand why an ordinary person would get a specific benefit from a firearm-specific trust versus a traditional trust used for estate planning in CA.

Do you have any other examples of guns that a person in CA could buy/enjoy with an NFA trust that they couldn't have if they didn't have the NFA trust?

I am getting the impression they should be called "obscure shotgun trusts", not "NFA trusts".

ke6guj
05-14-2012, 10:19 PM
Ok, but that only gets you exemption from the 16590 prohibition, not an exemption from the definition of a AW .. which says no rifles < 30 OAL, no pistol grips + detachable mags, etc. it says no semi-automatic centerfire rifles < 30". There are C&R SBRs that you can get that aren't semi-automatic centerfire rifles, so the 30" rule does not apply.

If what this boils down to is that by setting up an NFA trust you can have a $900 combination flashlight/single-shot shotgun, umm, ok . . . that's cool, if that floats your boat, but it seems like a pretty obscure project.

I'm still trying to understand why an ordinary person would get a specific benefit from a firearm-specific trust versus a traditional trust used for estate planning in CA. some of the specifics that a NFA-specific trust is that they have additional language for the successor trustee that explains what the hell this "sawed-off shotgun" is and what needs to be done to stay legal. remember that your successor trustee may have zero knowledge about your guns.

In addition, an NFA trust has additional language authorizing the trustee to use the trust assets for his enjoyment, even if doing so will devalue the assets. A standard trust usually has language requiring the trustee to safeguard the value of the trust, and beneficiaries could sue (although unlikely) if they felt that you were wearing out the trust's assets.


Do you have any other examples of guns that a person in CA could buy/enjoy with an NFA trust that they couldn't have if they didn't have the NFA trust?

I am getting the impression they should be called "obscure shotgun trusts", not "NFA trusts".let's see; in CA it is mainly just AOWs that we can get, since for MGs, suppressors, "big" DDs, and modern SBx, we need the CADOJ DW permit.



but, for AOWs, we can get stuff like wallet guns, cane guns, flashlight guns, combination guns like the 14" .410/.22lr USAF survival gun. In addition, we can get smoothbore pistols like the Serbu Super Shorty, Witness Protection 870's, SxS and O/U guns like the Auto Burglar, and others.


oh, and we can get "small" DDs as well. want a 14.5×114mm Russian anti-tank rifle? you can get one in CA with an NFA trust.

As Capy was mentioning, there are C&R SBS and SBR that do not violate CA's AW regs. they are rare, but they are out there. Examples include 12-14" lever-action rifles.

Capybara
05-15-2012, 8:19 AM
Don't forget the briefcase gun, although without an LTC and approval for it for your LTC, not sure what good it would do you. It would be fun to show up at the range with this and take it out and shoot it, just for the looks from other shooters.

http://www.autoweapons.com/photosn/enigma.html

ke6guj
05-15-2012, 2:42 PM
unfortunately, the way that CA law reads is that they ban the briefcase unless it was an AOW. And federally, the breifcase is not registered as an AOW, the firearm contained in it is, so I dont' think the exemption applies to the briefcase itself.

hkusp
05-15-2012, 3:50 PM
I already have a revocable living trust, does it qualify as an NFA trust or do I have to create a specific trust for guns?

Capybara
05-15-2012, 4:16 PM
Aww man, we can't be James Bond and have a briefcase that shoots? :-( Just kidding, I think that they are something like $3,500.00 anyway, I don't think many people would want one at that price.

The pen guns look cool, I would buy one of those but once again, a no-no in California.

When I get my trust setup or when the ATF decides no more CLEO sign off, I will be buying a Remington 870 AOW, and possibly an MP5 clone with a VFG, if anyone makes one anymore. OC Armory told me that the importer for the one on their site stopped importing them. And I do keep my eyes open for an affordable C&R SBS or SBR. The only ones I have seen were really costly.

mrdd
05-15-2012, 4:38 PM
Another way to look at a trust is that it is really just a contract. A rather complicated contract, to be sure. One way it is different from a simple contract is that it can have its own tax ID to be used for handling the taxation of income derived from its assets. So, even though the trustee(s) hold title to the assets, any income is treated specially and separate tax returns need to be filed in the name of the trust.

ke6guj
05-16-2012, 9:45 AM
I already have a revocable living trust, does it qualify as an NFA trust or do I have to create a specific trust for guns?you can usually use a standard RLT, but it is not recommended. Reasons include, separation of assets and that an NFA trust has specific language to help your successor trustee not violate the NFA and to allow you to use the trust's assets for your enjoyment, even if such enjoyment diminishes the value of the asset. In a regular trust, that is normally a no-no.

readysetgo
05-16-2012, 1:05 PM
You guys are all over the place... (except ke6)

Please check out Calguns very own Oaklander's California NFA trust website
http://californianfatrust.com/

He lays it out quite well!

My take:

AOW and C&R SBR and SBS = Legal in CA

MG, SBR, SBS, Silencer and other NFA items (Grenades, explosives etc.) = Not without a Dangerous Weapons Permit in CA (Average Joe is not going to get this permit)

NFA Trust allows transfer without law enforcement sign off! Again, average Sheriff in CA is not going to sign the NFA transfer form for average Joe, hence why you'd need the NFA trust to procure. That would be the "need", but there are other ownership/property/inheritance benifits.

tabrisnet
05-16-2012, 1:42 PM
What of trusts with persons across state lines ? Does this cause any problems ?

ke6guj
05-16-2012, 7:59 PM
What of trusts with persons across state lines ? Does this cause any problems ?

it can be done, but the level of difficulty goes up. Talk to Oaklander about multi-state trusts.