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Gun Trusts: Background Check Loophole Eliminated

A gun trust is a legal device that makes it easier to handle firearms after the gun owner’s death. These trusts are used for guns that are regulated by federal laws: the National Firearms Act of 1934 (NFA) and a revision of the NFA, Title II of the Gun Control Act of 1968. Gun trusts must take into account both federal and state weapons laws. Some of the weapons regulated by the NFA include silencers, machine guns, grenades, short-barreled shotguns, and short-barreled rifles. These weapons already have some regulations in place, including requiring its serial number to be registered with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

Although there are restrictions in place, the NFA allowed the making or transferring of a firearm without a background check through a gun trust. The Attorney General, on January 4, 2016, signed a regulatory rule to close up this dangerous loophole: Machineguns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Trust or Legal Entity With Respect To Making or Transferring a Firearm. This rule, also known as ATF Final Rule 41F (the “Rule”), will have a huge impact on the use of trusts in the sharing and in the acquisition of weapons regulated by the NFA. It seeks to ensure that proper identification and background checks apply equally to legal entities, trusts, and individuals. The rule became effective on July 13, 2016, 180 days after its signing. However, the Rule is not retroactive, and as such, pending applications will not be affected.


In the case of a trust, a “responsible person” is someone who has the power or authority to direct the management and policies of the trust to ship, transport, possess, deliver, receive, or otherwise dispose for, or on behalf of, the trust. Some examples of interested persons include settlors, grantors, beneficiaries, and trustees. These responsible persons will now have to complete a form (Form 5320.23), as well as submit fingerprints and photographs, when the trust files an application to make a firearm that is regulated by the NFA or is listed as the transferee on an application to transfer a firearm. Furthermore, the Rule requires that copies of all forms completed by responsible persons, as well as a copies of all applications to make or transfer a firearm, be forward to the chief law enforcement officer of the locality in which the responsible person, transferee, or applicant is located. One other significant change is the Rule will no longer require a signed certification by the chief law enforcement officer, but instead, requires the chief law enforcement officer to be notified through notice to the appropriate local or state official.

Those who are interested in setting up a gun trust or learning more about gun trusts and how this new Rule will affect them should not hesitate to contact the experienced attorneys of Chepenik Trushin LLP, who are ready, willing and able to assist you with your estate planning, guardianship and probate litigation needs.

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