With gun ownership at an all time high, more estates have guns in them that need to be transferred to heirs and beneficiaries. Most Wills don’t itemize the guns or say who should get them, and intestate estates (estates without a Will) generally require an equal division of assets among one or two classes of heirs. What requirements are there with respect to the guns?
First, in advising the personal representative of the estate, the guns should be particularly identified in the Inventory. There are federal and state laws that prohibit transfers of firearms to certain folks like convicted felons and people under a federal indictment. Additionally, an heir might be prohibited from having a gun in their home pursuant to a custody order. Additionally, there is a big question as to potential liability for a personal representative that transfers a weapon out of an estate to an heir with known mental health issues. While this particular issue has yet to be litigated, there could be possible causes of action in negligence for someone injured by another who was given a weapon when perhaps they should not have been permitted to possess a weapon. Additionally, the issue is complicated by the fact that many criminal defense attorneys will tell you that gun laws do not revolve around possession, they revolve around access. So even if the heir is okay, if they live in a household with someone legally prohibited from having access to a gun, then the personal representative of the estate may need to consider giving the weapon to someone else or liquidating the asset with assistance of the court.
Listing the guns on an inventory may provide additional protection for a personal representative because if it happens that there is an heir who makes a claim for one of the guns (since guns tend to either be sentimental, collector’s items, or regularly fought over by heirs as is especially the case in blended families) it is listed as a matter of public record and the personal representative can be thorough in determining whether that heir is legally okay to take the gun via the estate. It may protect the personal representative if they are under a bond for any potential liability, too. Bond in probate estates is like an insurance policy that protects the beneficiaries or heirs from potential loss, and protects the personal representative in the event of any liability for their actions (or inactions). The bond company likes to see a record of the inventory and will be put on notice of the contents of the estate should an issue ever arise.