Intra-familial intrastate, Father to son, but Mother still alive

[CrosbyStills]

I have been reading a lot of what everyone has been discussing about Intra-familial firearms transfers. I think I understand it pretty well, but I have one question, prefaced by a brief synopsis of my circumstances:

Retired law-enforcement father living in California with his wife (full parents of both sons - not a step-mother). He passes away late 2017. The Will clearly states the sons will receive the firearms (about 2-dozen long guns and a dozen handguns). Most rifles are bolt action or 5-round detached mags - no A.W.s, although one SKS with bayonet and fixed 5-round mag still attached and 1 other wood stock USSR made with bayonet, and 2 more US made with bayonet attached (one from each major war era). Dad was a bit of a collector. Digressing...

Sons both live in-state, Kalifornia. One is retired and active LE (retired from one agency, active in another - both with 830.1 status). Basic Firearms Cert exempted.

I understand that now the father has died, the estate (and the guns) still belong to his wife, the mother.

QUESTION: Can she Intra-familial gift the long guns to one or both sons?

QUESTION: Is there a max on the number that can be gifted?

QUESTION: Do the sons have to wait until the entire estate is legally executed (i.e.- the mother also passes away and the non-LE son executor executes the state to the approval of the probate court) prior to taking possession and transferring the firearms?

The sons have agreed to have the rifles all sent/transferred to the LE son so they can be listed and sold via PPT in the future. The proceeds due the non-LE son will be given him upon sale of the specific guns given him in the Will.

Thank you for your advice and insight.

CrosbyStills

[michaelinfv]

Wow great info thank you

Sent from my SM-N950U using Tapatalk

[fiddletown]

....Retired law-enforcement father living in California with his wife (full parents of both sons - not a step-mother). He passes away late 2017. The Will clearly states the sons will receive the firearms (about 2-dozen long guns and a dozen handguns)...

I understand that now the father has died, the estate (and the guns) still belong to his wife, the mother. ...

Something doesn't compute. If there was a will, upon the testator's (the person who made the will) death his property would ultimately get distributed to whomever was designated in the will to receive it.

Here's roughly how inheritance works:

1. When there's a written will, it normally must be submitted to probate in court.
   
   
   1. The will ordinarily designates an executor (i. e., the personal representative of the decedent). That person is not the executor unless and until the will is admitted to probate in the proper court and the court issues Letters Testamentary recognizing that person as executor.
      
      
   2. The executor once qualified then proceeds to identify and account for the assets of the estate. He may need to collect debts owed the decedent and manage property or other assets of the estate. He might also need to sell assets of the estate to raise funds to pay debts of the decedent and/or taxes. He or she then pays debts and taxes of the decedent under court supervision.
      
      
   3. The executor then handles, again under court supervision, distribution of the assets of the estate in accordance with the terms of the written will to the persons designated in the will to receive them.
   
   
   
2. Intestate succession when someone dies without a will is not some informal dividing up of the decedent's property amongst the relatives. It's a highly formalized procedure.
   
   
   1. First, someone has to go to the proper court and apply to be named the administrator (i. e., the personal representative of the decedent to wind up the estate) of the decedent's estate.
      
      
   2. Once the court has issued an order designating someone as the administrator, that person proceeds to identify and account for the assets of the estate. He or she then uses those assets to pay any remaining debts of the decedent and any taxes due. This is all done under the supervision of the court.
      
      
   3. After the debts and taxes are paid, the administrator, under court supervision, will distribute any remaining assets to those relatives entitled under the applicable statutes to a share of the estate. Only those relatives specifically identified in the applicable statutes are entitled to a share of the decedent's property, and only in the proportion set out in the applicable statutes.
   
   
   
3. So --
   
   
   1. If there's a will, the gun will ultimately go to whomever the will says it goes to, and it will be up to the executor to deliver, as approved by the probate court and in compliance with applicable law, the gun to that person.
      
      
   2. If there's no will the gun actually belongs to whomever would get it under the applicable intestate succession law. If that's the surviving spouse the property belongs to him/her. If that person wants to give the gun to someone, that's fine; but they will need to transfer it in a manner that complies with applicable law.

It's true that often, if there's not a lot of property involved, the relatives don't bother with the formalities and just divide everything up. That usually works out as long as no one complains, but it's not necessarily legal. And if there are conflicting claims on the property or if the decedent left significant debts or unpaid taxes, informality could result in serious complications down the road.

[Chewy65]

There is another possibility in addition to the ownership of property being determined by either will or intestacy, which is the terms of a valid trust, if there was a trust. I assume there is none.

I am as confused as anyone as to why you posted that will leaves the guns to the sons but the guns still belong to the mother. Did you meant that she has custody and control of them, while the remain property of the estate? Another issue is whether or not the father even had a right to leave them to his sons, if they were community property. Worse, what is your question? Are you asking if the mother can permit the guns to be sold by the LE son with the other son's share of the proceeds given to him? If the mother agrees, perhaps. One big fly in the ointment is that if there are any creditors of the estate, including the IRS, they have claim to the proceeds of the sale of those guns. One purpose of probate is to extinguish the liability of heirs for the claims of creditors.

[CrosbyStills]

Fiddletown and Chewy 65, thank you for replying. I apologize for creating more confusion than clarity.

I do not have the Will in front of me to which to refer. There is a trust, and the estate should be in the Trust. The Trust is for the estate of Mr. and Mrs. MyParents (not the most clever alias, I know). Mr. has passed. Mrs. still holds the Trust and all the property. She is trying to disperse as much to my brother and I (and our sister) as possible. The firearms, however, are meant to be divided between my brother and I only. The Will is clear in that regard, essentially a complete three-way split of the estate's assets, with certain jewelry, firearms, portraits, etc. going to specifically named people, hence the firearms to my brother and I. Mrs. MyParent has no interest in the guns or any of their accoutrement and would be happy to be rid of them sooner rather than later.

Should we wait until the Will is entirely executed (i.e. Mrs. MyParent passes away also and the estate is court-adjudicated) to take possession and prepare for liquidation, or can we begin the process via intra-familial (Mother to son) transfers? If so, is there a limit on the number?

[Librarian]

That's going to depend on how the trust is written.

Ignoring the will for the moment, the trust might be written to include everything Mr&Mrs MyParents owned, even detailing the individual firearms.

If the trust says 'on the death of one trustee, the remaining trustee is to administer the trust' (which, I believe, is likely the default), then the surviving trustee may dispose of trust property as she wishes. No need to wait for the remaining trustee to pass on.

[fiddletown]

At this point we seem to have a number of documents which have a bearing on how this needs to be handled. And exactly what those documents say, in their exact words, will matter a lot.

So there's no place to go without reading those documents, and that's not something we're going to do here.

It looks like time to get a lawyer involved.

[Chewy65]

Exactly. While typical family trusts usually provide for certain dispositions, as do wills which are often drafted so as to provide for property not covered by terms of the trust at the time of death, there are still too many variables to even take an educated guess at what they call for. That is the bad news. The good news is that because there is a trust, there may be no need for anything to be probated or if there is your father's estate may qualify for a less complicated and less expensive summary probate. See a probate attorney. He/she may or may not tell you that the guns can be sold/transferred by the trustee without being subject to probating any will.