EO affect on Gun Trust

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troglodyte
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EO affect on Gun Trust

#1

Post by troglodyte » Wed Jan 06, 2016 9:05 am

I was about to set up a Gun Trust but now with the Executive Order I'm wondering what the pros and cons would be.

I've read through the White House Fact Sheet but it doesn't outline any specifics, only language like, "ATF is finalizing a rule that makes clear that people will no longer be able to avoid background checks by buying NFA guns and other items through a trust or corporation," which I believe was already in the works.

I know that a lot of folks set up gun trusts because their CLEO wouldn't sign off for them but now it appears the CLEO won't be in the approval loop, only notified. Our CLEO would sign off so that's not a problem. I like the idea that any firearms in the trust are shielded from probate and that when I do get a SBR or suppressor all members of the trust will be able to legally possess them. I don't know of any doors getting knocked down because the wife has access to a suppressor that belongs to her husband or any arrest for letting your son shoot your SBR even though he doesn't have the stamp but I'd rather be safe than sorry in this current climate. Also the fact that if any of my trustees buy a NFA firearm they can put it in the trust is appealing.

Has/will anything change with this due to the EO?

If I get a trust formed before the ATF ruling will I and my trustees be grandfathered in or will there be retroactive action or background checks?

When is the ATF expected to rule?

Any other pros or cons I should consider?

I've visited Sean Cody's and Jim Willi's websites. I've heard good about both of them, any reason to choose one over the other? Anyone else I should consider?

Just to add, all my would be trustees (wife, sons, and DILs) are CHLs.

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JALLEN
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Re: EO affect on Gun Trust

#2

Post by JALLEN » Wed Jan 06, 2016 9:13 am

Contact H. Dean Philips at NFAlawyers.com. He is a lawyer who specializes in this stuff and offers a $99 gun trust. You can read his comments on this latest development on Sigforum.com in the Suppressed Weapons subforum.
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cb1000rider
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Re: EO affect on Gun Trust

#3

Post by cb1000rider » Wed Jan 06, 2016 3:05 pm

Last edited by cb1000rider on Wed Jan 06, 2016 3:16 pm, edited 1 time in total.

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The Annoyed Man
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Re: EO affect on Gun Trust

#4

Post by The Annoyed Man » Wed Jan 06, 2016 3:11 pm

http://www.t-plaw.com/2/post/2016/01/41f-and-you.html

Toronjo & Prosser is who did my multigenerational gun trust for me. These guys are incredibly knowledgeable, and NFA/Gun trusts are a big part of their business.
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ScottDLS
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Re: EO affect on Gun Trust

#5

Post by ScottDLS » Wed Jan 06, 2016 3:44 pm

There are some reasons to have a gun trust or other legal entity ownership of NFA, besides obstinate CLEO's that won't sign a cert. However, I think the vast majority were set up for that reason.

I hope the gun trust lawyers won't be like the tax lawyers that lobby for very high tax rates with lots of loopholes so they can make money exploiting them.

When the new regs go into effect I am going to transfer my SBR project to my name from my LLC even though it will cost me another stamp. I have 3 NFA items owned personally, but the Sheriff retired and the new one won't sign.
4/13/1996 Completed CHL Class, 4/16/1996 Fingerprints, Affidavits, and Application Mailed, 10/4/1996 Received CHL, renewed 1998, 2002, 2006, 2011, 2016...). "ATF... Uhhh...heh...heh....Alcohol, tobacco, and GUNS!! Cool!!!!"


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Re: EO affect on Gun Trust

#6

Post by srothstein » Wed Jan 06, 2016 10:40 pm

Just so you all now, the main advantage to a gun trust is now the same as for any other property and trust - inheritance. The second advantage is that any trustee can have the firearm, not just the named owner.

But one of the big former advantages is now gone. There is no more CLEO sign-off for a class III weapon. The ATF rule changes this in all cases to their notifying the local CLEO after they approve he transfer.
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Re: EO affect on Gun Trust

#7

Post by bnc » Wed Jan 06, 2016 11:12 pm

Like it has been said, a trust still has the benefits of inheritance and multiple NFA users.

As I understand it (not a lawyer etc), the current rules will remain in place for 180 days after the new regulations are posted in the federal register, which should happen sometime in the next couple of weeks. If your application is already being processed by the ATF before that 180 days expires it will be grandfathered in under the current/old regulations. So, you have less than 6 months to get things in without photos/prints.

I don't want to attempt to go into details and say something wrong, but there is a provision that basically allows you to bypass resubmitting prints/photos for every stamp if your previous stamp purchase was less than 2 years ago and the trust has not changed during that time. I think you do need to submit a form saying that the trust is unchanged.

I recently set up a trust and applied for my first stamp to at least get 1 in before the rules changed since we didn't know what the changes would bring and I don't know anything about my CLEO's position on the matter (not even sure who it is). I talked to Jim Willi on the phone and via email and used his online trust (my situation is very simple). He was very helpful and easy to work with. The hardest part was getting my new printer/scanner setup. I made a purchase from Capitol Armory in Austin, and they were similarly helpful and pleasant to work with. I'd happily do business with both of them again, and I've read plenty of good things about Sean Cody and HD Phillips as well.

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AndyC
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Re: EO affect on Gun Trust

#8

Post by AndyC » Thu Jan 07, 2016 12:00 am

An interesting analysis by an attorney, posted on another forum:
Here's a copy of what my Trust Lawyer sent out this morning after he got hit up all day yesterday about the changes.

The newly published version of 27 CFR Part 479, the result of ATF 41P, is not a short read. In its 248 pages of double-spaced text, it describes existing regulations and the original agency proposal in August 2013. It includes reference to the many public comments and the agency’s rationale for various features of the final rule, and how they differed from the proposed one. The agency’s rationale for the rule change is full of bluster about the great danger presented by these firearms. In keeping with the current administration’s talking points, the agency touts expanded background checks as a vital means for preventing violence.

Leaving aside the political rhetoric from the agency, here are the highlights from the new rule:


(1) For trust and other non-individual applicants seeking to make or transfer NFA items, all “responsible persons” are going to have to submit fingerprint cards and photographs and undergo a background check with future applications. Each responsible person must also complete the new ATF Form 5320.23 providing various personal identifying information. There is however an exception for those that have completed a previous application to make or transfer a firearm and had it approved in the previous twenty-four months. They will instead be able to certify that their information has not changed since the previous application’s approval and avoid resubmitting their trust agreement (or other proof of existence), photographs, fingerprints, and Form 5320.23. (See. pp. 246-247).

(2) CLEO certifications are officially a thing of the past once this rule becomes effective. They are replaced by a requirement that the applicant notify “an appropriate state or local official” when applying to make or transfer an NFA item. Appropriate local officials as defined in the rule would include the “local chief of police, county sheriff, head of the State police, or State or local district attorney or prosecutor of the locality in which the applicant, transferee, or responsible person is located.” (See p. 5).

(3) There is more specific guidance for temporary estate matters involving NFA firearms, clarifying that temporary possession of NFA items by a personal representative or similar person during the settling of an estate will not be treated as a transfer. (See pp. 247-248).

(4) Surprisingly, the future addition of new trustees/responsible persons to a trust after a transaction will not trigger any additional paperwork or reporting requirement. (See pp. 123-124).

In its explanation of the rule, ATF acknowledges that there will be added costs for the regulated public associated with the more burdensome application process (estimated at more than $36 million dollars), but the claims that it is necessary to protect the public, and that elimination of the CLEO certification requirement partially offsets the financial costs. The agency notes that this will benefit individual applicants at the expense of trust and corporate applicants. (See pp. 5-6).

UPDATE: In its response to public comments, the agency also confirms that applications that are postmarked before the effective date of the new regulations will be processed under the existing rules, and that “only those applications postmarked on or after the implementation of the final rule will be subject to the new regulations.” (See p. 179).
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